idolatry. Claro Mayo Recto 10 Institute for Political and Electoral Reform

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1 In truth, actual events tamper with the Constitution. History reveals its defects and dangers. I believe we can do better service to the Constitution by remedying its defects and meeting the criticisms against it, than by closing our eyes to them in blind idolatry. Claro Mayo Recto 10 Institute for Political and Electoral Reform

2 HISTORICAL PERSPECTIVE OF CONSTITUTION MAKING Institute for Political and Electoral Reform 11

3 An Introduction to the Concept of the Constitution In its broadest sense, a constitution is a body of fundamental rules governing the affairs of an organized group. Without it, there would not be an organization and anarchy would exist. Applied to states, the constitution embodies the doctrines and practices that form the basis for organizing the political state. A dictionary definition describes it as a system of principles according to which a nation or organization is governed. In essence, the constitution is a social contract between the rulers and the ruled. It thus reflects the political consciousness of a society within a definite constitutional period. Historical Roots of the Modern Constitution The modern concept of the constitution is rooted in the Greek political concept of politeia where a ruler, or ruling group, governed with the interest of the whole citizenry (polis) in mind. The whole citizenry, in turn, participated in ruling. However, this did not extend to slaves, making the Greek concept of democracy less liberating. Aristotle was the foremost Greek exponent of this concept. The Romans added the concepts of a generalized equality, a universal framework, and a hierarchy of laws to the constitutional mandate. In this Roman concept, the Aristotelian constitution was subject to the so-called universal law of nature that all things natural have an internal logic of harmony and cohesion. In this sense, a constitution harmonized all rules and laws of the state. The medieval period introduced a strong religious bent to the universal nature of a constitution. The Catholic Church imposed a divine source for the constitution and the legitimacy of the ruler. It easily translated into the monarchical form of government, where in- 12 Institute for Political and Electoral Reform

4 dividual kings claimed divine guidance. As interpreter of God s will, the Catholic Church itself acquired real political power, up to and including the legitimization of royal rule. Modern constitutionalism arrived with the Reformation the period when the various peoples of Europe challenged the divine right of kings to rule and the religious sovereignty of the Catholic Church. Instead, the secular concept of the social contract was developed. Foremost of the theorists of the social contract were the English philosophers Thomas Hobbes and John Locke and the French philosopher Jean-Jacques Rousseau. The concept of the social contract revolved around sovereign rule being based on the consent of the governed. The legitimacy of a government rested upon its adherence to the social contract or the constitution which became the embodiment of the contract. Hobbes envisioned a state where individuals willingly renounce their own powers in favor of a sovereign and promise to follow the rules of this sovereign. Hobbes postulated that the self-preservation of individuals through times of disorder and war requires the rational concentration of powers in a sovereign. The sovereign may be an individual or an assembly in form, but the substance remains in the concentration of powers. Any division of powers, according to Hobbes, may only return human society to the state of nature in which anarchy prevails. Accordingly, Hobbes favored a single sovereign over a sovereign assemblage arguing that it is easier to concentrate powers in a single sovereign. He only accorded natural rights to individuals, such as the right against selfincrimination and the right to act freely where the law is silent. Locke refined this further in his concept of a civil society born out of the agreement on a common judge (for example, the legislature) by individual members of society. Members of civil society execute a con- Institute for Political and Electoral Reform 13

5 tract with the government in which the government promises to execute the trust placed on it by civil society and the people reserve the right to rebel if this trust is broken. This contract is the constitution. Locke rejected a single concentration of powers and opted for separate yet coordinated powers of the ruler and the parliament. He also refused to use the word sovereignty and strongly advocated the superior power of the people as expressed in their right to rebel against a government violating the social contract. Rousseau proposed the concept of the general-will to encompass all individual citizens of the state. This general-will is the expression of the sovereign people who, according to him, can do no wrong. In practice, this concept leads to the insistence on universal suffrage and the democratic system of governance. The American, British, and French constitutions reflected, in differing levels, the various theories of social contract. In turn, these constitutions served, and continue to serve, as models for constitution-making all over the world. A constitution may be formally written as a single document or may be composed of separate documents and customary practices. As long as the document, documents, or practices determine all other rules (or laws) of the state, a constitution exists. Whenever a government is based on the constitution, it is called a constitutional government. However, having a formal constitution on paper does not make for a constitutional government. A constitutional government is one that adheres to the basic elements required by a constitution: procedural stability, accountability, representation, division of power, and openness and disclosure. Procedural stability requires that fundamental procedures must not be subject to frequent or arbitrary changes. Basic rules of govern- 14 Institute for Political and Electoral Reform

6 An Introduction to the Concept of the Constitution ance and politics need to be understood by the citizens so that they will have adequate knowledge of the consequences of their political actions. Failure to provide procedural stability results in whimsical or arbitrary regimes, devoid of participation and intervention by the governed. Accountability requires procedures for holding a sovereign ruler accountable to the governed. This is most easily done through the institutionalization of the electoral process, where the voters regularly pass judgment on the performance of the ruler by either voting him or her to office again or by voting for the opposition. It can also be done through a plebiscite, referendum, system of recall, fiscal accounting, and other forms of procedures. Representation requires that, at the least, the active actors in the body politic are represented in government. It is not so crucial as long as the other criteria are met. Representation is more closely connected to the requirements of democracy than that of a constitutional government. Division of powers provides another criterion for a constitutional government. This creates various checks and balances that deter any abuse of power. The restraint if institutionalized, makes it harder for dictatorial governments to emerge. Openness and disclosure in a constitutional government are required in order for the governed to monitor government performance and effectively intervene in government. It also promotes effective democracy in that an informed citizenry can take part well in politics and in governance. The constitution, different from simple laws and government regulations, is a direct mandate from the people. It essentially spells out the powers delegated by the people to their government and defines the boundaries of these powers. Thus, it does not obligate the people; on the contrary, it obligates the government. Institute for Political and Electoral Reform 15

7 The Philippine Constitutional Experience The Philippine Republic has gone through four major constitutions in its lifetime. These constitutions were embodied in four documents that reflected the realpolitik of their periods. During the American colonial period, the applicability of the American constitution to Filipinos was refused. In its stead, a series of U.S. congressional statutes became the basis for the colonial government. During the brief Japanese occupation, a constitution approved by the Japanese aggressors became the basis for its puppet republic. The Malolos Constitution of 1898, the first of its kind in Asia, became the basis for the short-lived First Philippine Republic. It drew inspiration from the ideas of the French Revolution and its constitution as well as the American constitution. Interestingly, it created a parliamentary form of government but with a president, foreshadowing the present French Republic. The appointed Malolos Convention drafted and approved the constitution, which was made in the midst of the revolutionary war. The 1935 Constitution governed the transitory Commonwealth Republic and the subsequent independent Republic from 1946 to Only the Parity Amendment changed its original text, making it the most stable constitution among the four. It was drafted by an elected Constitutional Convention and ratified in a plebiscite. The 1973 Constitution was supposed to address the inadequacies of the 1935 Constitution and the social volcano that threatened to erupt in the late 60s. However, it turned out to be a legitimizing instrument for the Marcos martial law regime. Though it was drafted by an elected constitutional convention, it was never ratified in a formal plebiscite but through the Marcos-concocted citizen s assemblies. Ferdinand Marcos, under martial rule, inserted provisions calculated to legitimize his one-man rule. In the end, the people exercised their right to rebel and rose in a peaceful rebellion in Institute for Political and Electoral Reform

8 An Introduction to the Concept of the Constitution People Power, as it is formally called now, rejected not only the Marcos dictatorship but also called for the replacement of the 1973 Constitution. President Corazon Aquino declared a revolutionary government and mandated the drafting of a new constitution through a constitutional commission. The new constitution was ratified in a plebiscite in February Mandate of the 1987 Constitution The 1987 Constitution did not return to the 1935 Constitution but redefined the post-dictatorship political setup. While retaining the structures of the pre-martial law government, it brought in the new political actors from civil society (in the form of NGOs and people s organizations) and stressed the active participation of citizens, particularly those at the grassroots, in governance. It also sharpened the substantive provisions on human rights, social justice, development, and protection of the environment. It restricted the powers of the president in relation to the declaration of martial law. It preserved the presidential system of government patterned after the US model. It also rejected the parliamentary system of the 1973 Constitution and brought back the two-house legislature. The judicial department remained substantially the same only the ombudsman court system was added. Bringing back the structures lent itself to the resurgence of the same political families whose power bases were organized along these structures. It proved difficult for new political players to break into the political mainstream at the national level, and they were confined to local positions. The party-list system proved to be the venue for new players to enter the legislature. However, there is a danger that the system may be coopted by major parties for their own candidates. Institute for Political and Electoral Reform 17

9 An Introduction to the Concept of the Constitution One of the longest constitutions in the world, the 1987 Constitution covers a broad range of policy areas. Detailed as it is, it suffers from a common infirmity arising from compromise. Many of the compromises resulted in more than 50 of its provisions, including major ones, requiring enabling laws by Congress before they can be implemented. Today, 15 years after, some of these enabling laws have not yet been enacted. In the electoral field, for example, provisions for absentee voting, for a people s initiative, and for the banning of political dynasties have not yet been passed by Congress. People Power II is an almost inevitable consequence of the delayed, if not derailed, enabling of the new politics provisions of the 1987 Constitution. The continued elite domination of the Philippine political arena is being constantly challenged inside and outside the constitutional framework. People Power II underlined the weakness of the 1987 Constitution, particularly in its implementation of the new politics provisions. It is a hybrid constitution seeking a compromise between two mutually exclusive political realities of traditional elite politics and the new grassroots-based politics. The constituency for new politics needs to be organized and developed in order to realize the reforms contained in the 1987 Constitution. Beyond this, a constituency for reform amendments to the constitution must be organized in order to decisively swing the balance in favor of new politics. People Power II showed the potential of this constituency that can only grow in the future. At the moment, however, it is doubtful if this constituency understands its historic role in reforming society, starting with constitutional reform. 18 Institute for Political and Electoral Reform

Changing The Constitution

part one 3 Changing The Constitution I P E R 4 Introduction Copyright 2004 Published by The Institute for Political and Electoral Reform (IPER) ISBN 971-92681-2-3 part one 5 acidcowart collective sanpablo