Ask Filipinos if they think the basic problem of the nation today lies in the system of government or in the shameful quality of their political leaders. Ask them what they think needs to be urgently replaced – the Constitution or the present crop of politicians? I will bet my last peso their answer will be: the kind of leaders we have.
We don’t need to amend the Constitution to put our country back on its feet. We only need to free ourselves from the scourge of corrupt and incompetent politicians. In many other societies, the people have done that either by the rules of an existing constitution, or extraconstitutionally, by the direct exercise of their will. In the aftermath of a political upheaval, they may decide to write a new constitution, reflecting the wish for a new relationship between citizens and government. Creating a constitution is always, in its original sense, an act of the people themselves.
The people’s authorship of their constitution in modern times, unfortunately, has been reduced to mere ratification. In a book that reviews the tradition of popular constitutionalism, Stanford professor of law Larry Kramer notes: “We imagine ‘the people’ only as lawmakers – constitutional legislators for a day, as it were – but nothing more. Ratification makes a constitution ‘law,’ but also turns the constitution over to government agents (mainly judges) who assume responsibility for its interpretation and enforcement.”
Kramer examines the tension between popular constitutionalism and the power of judicial review. Our problem is perhaps more fundamental – the Filipino people’s participation in the very crafting of their constitution is not only mediated but is routinely hijacked by their supposed representatives. This occurs at every point of the process:
from the manipulated consultations and public hearings that are supposed to inform the drafting of the amendments, to the final ratification stage where, as in typical elections, voters are herded into polling precincts and paid to make selections that have nothing to do with their aspirations.
One only needs to take a look at the content of the recent resolutions in Congress to realize how remote the proposed amendments are from the basic concerns of ordinary Filipinos. And yet these specific changes are projected as the outcomes of studious consultations that legislators are supposed to have conducted with their constituencies.
Several measures propose the lifting of the term limits of legislators and elective local officials. Others seek to extend these officials’ term of office from the present three years to 4 or 5 years. The bulk of these resolutions seek a shift in the system of government – from presidential to parliamentary, from bicameral to unicameral, or from unitary to federal. Some resolutions call for a revision of the constitution as proposed by past consultative commissions, which, not surprisingly, deal with the same issues.
A number of resolutions focus on the so-called economic provisions, uniformly calling for the lifting of existing restrictions to foreign participation in the national economy. The areas they seek to pry open range from ownership of land, exploitation of natural resources, ownership and operation of public utilities and other enterprises as those in media and education, and the practice of professions presently reserved to Filipinos.
It is not hard to draw the impression that behind all these proposed amendments are vested interests with no regard for the national good. Not one of them seems in any way crucial to the fundamental problems of poverty, inequality, or corruption. But they are there, presented in urgent tone, and in full awareness that there is nothing that cannot be made to look good or necessary by simple redescription. They may draw their rationale from social objectives like efficiency, economic growth, or political stability. But ultimately, this is not so much about the well-being of the Filipino people as it is about the self-interest of politicians and the economic groups they serve.
In an earlier time, most constitutions were unwritten. They were general principles based on custom, enshrined in the hearts of people, but no less vital to social order for being unwritten. The most important principles recognize the fundamental rights and freedoms of the people as constituting a limit on the power of government.
“Constitutionalism is not simply having a document called a constitution,” wrote O.D. Corpuz in his book “The Roots of the Filipino Nation.” Constitutionalism, he reminds us, is a “social system” whose operation assumes that “supportive traditions have existed for sometime as part of the community life.” In short, whether one is talking of creating a new constitution or altering an existing one, one does so within the framework of what is already accepted in practice. I take this to mean that a constitution is not the right venue for experimentation or novelty except when they seek to reflect the outcomes of political upheavals.
The provision for amendments in written constitutions was meant to avert violent revolutions that were associated with constitutional change. But, seeing how the allies of Ms Arroyo are today bent on pushing charter change in order to ensure their stay in power beyond 2010, this latest brazen attempt from the Palace may ironically spark the political wildfire it is trying to avoid.
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