The 1987 Constitution: To Change or Not to Change?

Ateneo School of Government

Antonio G.M. La Viña

Joy G. Aceron

with

Edgar S. Bonto

Benedict G. Nisperos

Edited by

Dennis T. Gonzalez

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Writers:

Antonio G.M. La Viña

Joy G. Aceron

Edgar S. Bonto

Benedict G. Nisperos

Edited by Dennis T. Gonzalez

ATENEO SCHOOL OF GOVERNMENT (ASoG)

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Version 1.0.1

Table of Contents

Introduction

In 1986, the world marveled at the historic exercise of people power by Filipinos who demanded and accomplished peaceful change from a dictatorial government to a democratic one. While all eyes were on the Philippines during that euphoric moment, expectations for a strong democracy and social transformation also arose. Many Filipinos hoped that the country would rise from the ashes of economic turmoil and institutional bankruptcy and they would live to see its glory days of prosperity and peace.

But expectations were not met, as the nation was rocked by periodic political upheavals and crises soon after the People Power event. In between these periods of instability, there was always a blame game on the causes which almost always included the deficiencies of the 1987 Constitution adopted during the administration of the late Pres. Corazon Aquino. Thus, proposals to change the fundamental law of the land came to the fore periodically.

Three administrations after that of Cory Aquino have attempted to change the basic law. There have been at least three serious attempts to change it, and not one succeeded. Some say that the reasons behind each failure are almost the same, only differing in context or circumstances. The lack of success in changing the Constitution has created the perception or myth that Charter Change is a futile or foolish task. In an attempt to bare the truth behind the myth, a look at the lessons in the failed attempts during the presidencies of Fidel Ramos, Joseph Estrada, and Gloria Macapagal Arroyo will be beneficial to conscientious leaders and citizens after 25 years of governance under the 1987 Constitution.

The constitutional change debate is one of the hottest, and at times the least enlightening, which the country has ever faced. After the unsuccessful attempts, stakeholders are perhaps in a better position today at understanding the change process and determining the right ways to succeed. Purposeful social change is hard to attain especially when communication structures, political players, and the timing, among other elements, do not go together. It is also a challenge to identify the right elements that go together for structural change like constitutional change and, more so, for enduring social change.

Social change involves the complex convergence and clash of motivations of individuals. Thus, effective strategies for change must build on the real-life concerns and personal commitments of those who would be affected. Some people are resistant to change because they are unfamiliar with it or fear its demands on them. There must be consensus-building in order to solicit and solidify support for change.

Why is the need for change so persistent? In the present context, why does the constitutional debate persist? Scott London affirms that there is still unclear understanding how change works at different levels of society. He further suggests that studies should be geared towards understanding why change occurs or does not occur, how it unfolds, and what strategies might be developed for consciously bringing it about. While a great deal has been written about social change…much of it focuses on the recalcitrance of social systems—how and why they resist change—rather than the change process itself (London, 1996). This point is instructive in studying the failed attempts to change the 1987 Constitution. How the key actors took on their roles in the change process could show why the attempts failed.

Among different democracies around the world, constitutional change is a product of sufficient consensus of key political players and institutions as regards the political and economic changes that they want to attain. Constitutional change has become a popular method for new or restored democracies to resolve past institutional failures, reconstruct political structures after authoritarian rule, and ensure better governance.

Constitutional change ought to be an offshoot of the citizenry’s demand for and participation in good governance. Over the last decade, a consensus has emerged among international organizations, governments, and civil society groups on the vital role that governance plays in economic and social development. Strengthening the four pillars of good governance—accountability, transparency, participation, and predictability—can increase government efficiency and impact. Constitutional change plays its role when it is used to promote good governance by changing the basic rules to promote these four pillars.

A study by Greenberg and others says that there is a twofold nexus between constitutional reform and good governance. The first refers to the process and the second to the outcome of the process. It says:

The more inclusive, participatory, and transparent that process is, the more likely will the political order be seen as legitimate; and a political culture will emerge that fosters the four good governance criteria. The other is through constitutional choices, relating to the content of the document. Constitutional reform demands that critical institutional choices be made in such broad areas as form of government, electoral law, degree of centralization, and judicial and quasijudicial agencies. (Greenberg et al, 1993,9)

The outcome of the process, which is the Constitution, becomes the touchstone of a country’s governance system. This document should empower institutions and give them the character to ensure a balanced system of governance. It stipulates where power lies within the state, what the institutions of government are, and how they are intended to operate. Good governance emerges from its structural provisions, such as separation of powers and statement of explicit rights that guard against authoritarian control. (Greenberg et al., 1993,17) The process of changing the Constitution should stimulate good governance so much so that institutions become sufficiently empowered to fulfill their legitimate and intended mandates.

The Philippine experience is illustrative of the need to empower institutions in order to ensure an effective, efficient, and balanced governance system. On the one hand, there are those who argue that there is so much power vested in the Presidency that the existing checks and balance mechanisms vested in different institutions by the drafters of the Constitution are ineffective. They argue that the Constitution facilitates a weak state characterized by weak institutions and an arbitrary or selective enforcement of laws. On the other hand, some argue for the proper implementation of laws instead of a blame game against the current Constitution.

Those who want to preserve the present Constitution argue, among others, that the Constitution is still relevant and that the governance deficits happen because the legislative department is not doing its job to pass the necessary laws. Defenders of the Constitution also say that change should be directed at those in power who are abusive.

It is undisputed that the Philippines is in a quagmire in terms of its governance, which of course affects the nation’s economy. This book assumes that the quagmire is the result of a complex interaction of faulty officials and flawed structures and systems. These flaws feed off each other. The flawed officials ought to be replaced, and if necessary punished, swiftly enough but in a legal or constitutional way. Every flawed structure and system ought to be changed or reformed in a proper way at the right time. The 1987 Constitution contains some of the structural flaws in the Philippine political system.

This book is for those who want to understand the necessary and proper ways, and to discern the opportune time, to change the 1987 Constitution. This book attempts to put forward alternatives to fuel a Charter Change that is feasible and acceptable. We want to provide a guide that can be used by anybody, or a handbook for Charter Change for everybody to understand.

This book describes the vital roles of the political leaders, who are the shapers of the political scene and who will be at the center of any Charter Change process. These political players are the ones capable of utilizing offices and resources to form alliances and use them for any purpose. They would be instrumental for any successful initiation of the change process.

This book serves as a challenge to the political players to do their roles. The specific roles and the tools to be used to fulfill these roles will be described. The exposition might not be exhaustive but it offers enough for political leaders to take on the challenge of mapping a good plan and executing the plan for constitutional change. We explore and offer ideas on how the power structure of society can be utilized for Charter Change to happen.

Chapter I answers the question: What are the substantive issues at the center of contemporary constitutional debate in the Philippines? The chapter offers an objective analysis of the arguments and counter-arguments presented by opposing sides of the debate.

Chapter II helps us understand that the present is a product of the past: it offers a historical narrative of past and recent attempts to change the Constitution. But history is valuable only if we learn from its lessons. This chapter makes an attempt at explaining why past and recent attempts have ended the way they did. Finally, it provides us lessons that can be drawn from the attempts.

Chapter III examines the dynamics of the various modes of changing the Charter in order to give the would-be initiator a solid theoretical base. Discussed in this chapter are the advantages and disadvantages of the different modes, with a cost-benefit analysis presentation of each. The objective is to gain a firm theoretical grasp of the three modes and be able to make a rational choice as regards the appropriate mode, or if need be, an alternative mode for constitutional change.

Finally, Chapter IV deals with the nuts and bolts by offering a step-by-step guide that lays down strategic and tactical prescriptions in order to give the initiator of constitutional change higher chances of success.

The authors recognize that the dynamics of the political process is knotty and its complexities are difficult to untangle. Thus, at best, this handbook gives concrete advice and specific directions for those interested in Charter Change. Finally, it must be borne in mind that if Charter Change does happen, it will be the product of the intended and unintended consequences of the decisions and actions of various agents and groups in strong and weak alliance and conflict with one another, as they use and modify power structures for noble and ignoble purposes.

Chapter 1

Understanding Constitutional

Change in the Philippines

Charter Change is shaped by existing power relations. It happens in a given power context that is in turn determined by the institutional-legal framework. Charter Change in the Philippines has happened in different contexts and times, each spurred by a different impetus.

Philippine Constitutional development may be divided into six periods, namely:

The Revolutionary Period — 1896-1899

The American and Commonwealth Period — 1899-1946

The Japanese Period — 1942-1945

The Republican Period — 1946-1972

The Marcos Dictatorship — 1972-1986

The Post-EDSA Period — 1986 to the present

During the Revolutionary period, the need for a Charter to unify the nation after the long-standing fight against Spanish occupation was a given. The Charter would legitimize the existence of the new Republic. In preparing the draft, the debate was over a strong legislature or a strong