Why Change the Constitution

Why Change the Constitution?
By Chief Justice Reynato S. Puno (ret.)


(Speech at a symposium on constitutional reforms, 29 June 2015, University of the Visayas, Cebu City)

History repeats itself, so the adage goes. I hardly paid attention to this adage when I was young. As I grew older, I could not but marvel at the truth of the adage. If you look at our current news you will discover that they are repeats of past news, with little modifications but repeats nevertheless. To a movie goer, such repeats pose no problem. He simply tells himself, “Napanood ko na iyan,” and walks away. 

I wish we can adopt that dismissiveness, that nonchalance, that indifference to problems that keep manifesting themselves to Filipinos from generation to generation. But if we give up on these problems, if we do not care anymore to the repetition of our errors and tragedies as a people, then the Filipino is ready for the requiem. 

What are some of these problems that keep on replaying themselves in our lives for more than a century? — catch that, for more than a century now. Here are some:

One. During the Spanish time, the problem and the news that screamed was the lack of representation of the Filipino people in the Spanish Cortes, the Spanish lawmaking body. Rizal, del Pilar, Lopez Jaena, created a lot of noise and news against this anti-democratic practice. 

What is new? Today, so many centuries after, the news is still lack of democratic representation of some significant sectors of our society but this time, in our Congress, the Executive and the Judiciary. I refer to the complaint of our Muslim brothers and sisters of their utter lack of representation in the Senate and the Supreme Court and underrepresentation in the Executive Department. 

Two. Another recurring news is cheating during elections when we elect/choose leaders. The Spaniards never allowed Filipinos to vote for their leaders. This anti-democratic practice was one reason for the revolution against Spain. But Filipinos had their first experience in choosing their leaders during their armed revolution against Spain. The revolution was led by Bonifacio and Aguinaldo. Soon, due to irreconcilable differences in style, intelligence and temper, rivalry between Bonifacio and Aguinaldo developed. They split and they formed the Magdalo and Magdiwang factions, respectively. The two realized that an armed revolution against the super power that was Spain, cannot be waged by divided revolutionaries. They agreed to have an election of sort. Aguinaldo won. Bonifacio lost and he protested the alleged use of fraud and force by the Aguinaldo camp. Bonifacio did not have the opportunity to prove his election grievance. He was executed. Yes, this was the first time, the Filipinos, by themselves, voted on who would be their leader. And it proved to be a catastrophe. 

The use of election violence, force, and fraud was news then, it is still news now. The prostitution of our electoral process is an unmitigated tragedy. Do you know that in Asia, we were the first to exercise the right to vote? That democratic right was given to us by Americans more than a century ago. Look how we corrupted our right to vote, which is the primary means by which the people express their sovereignty. In the 1949 presidential election, where President Quirino bested Jose P. Laurel, our historians tell us that “the birds and the bees” cast the critical votes. In the 1986 snap Presidential election between President Marcos and Mrs. Cory Aquino, electoral fraud prompted the walkout of people canvassing its result, and that triggered the EDSA People Power revolution. A few years ago, we had our national and local elections where for the first time we resorted to automated election. Guess if the automated election got rid of the use of force and fraud in our elections. The categorical answer is no, it did not. Truth to tell, we have more electoral protests after we resorted to automated elections and spent billions of pesos for the same. Cheating in election is still the hot news today. 

Three. Look at the complaints about too much power given to the President, and the abuse of the excessive Presidential powers to the detriment of democracy. Again, centuries ago, we read in history books, episodes on how some of our past Executives used/misused their overwhelming powers, starting from Aguinaldo when he ruled as our first dictator fighting the war against Spain. For this reason, most of our Presidents were threatened or were actually charged with impeachment in Congress, Presidents Quirino, Macapagal, Marcos, Estrada, GMA, are examples. 

Today, the use or misuse of presidential powers is again top-of-the-line news. Rightly or wrongly, the incumbent President is denounced for the DAP, (Disbursement Acceleration Program), for favoring his partymates in the allocation of budget, for selective prosecution of the members of the opposition, etc. We can expect the charges to escalate as the 2016 Presidential election comes nearer. 

Fourth. Another recurring news is the conflict between the Legislative and the Executive branches of government. Not a few Presidents considered Congress as an obstacle to their reform programs, denouncing legislators as incapable of reformation. Hence, President Marcos immediately abolished Congress when he declared martial law. Similarly, President Aquino refused to revive Congress under the Freedom Constitution. On the other hand, sometimes it is Congress that considers the President as chief of the evil empire. Thus, we saw how the House of Representatives impeached President Estrada, a process that led to the second EDSA revolution. Then, we saw the dogfight between President Gloria Macapagal-Arroyo and Congress. Ostensibly wielding its power to investigate in aid of legislation, Congress summoned members of the Cabinet and sub-cabinet of President Arroyo allegedly involved in irregularities like the Fertilizer Scam, ZTE broadband contract anomaly, etc. Pres. Arroyo did not allow her officials to honor the summons and invoked her executive privilege. The result of the squabbling was deadlock between the two great branches of government and the paralysis of our progress. 

This is still news today. We hear Malacanang complaining about the difficulty of getting Congress enact its pet bills. The favorite story in the media in the past so many months is the failure of the President to convince Congress to pass the BBL before he delivers his last SONA on July 27.
Will we see an end to this interminable fight between the President and Congress?

The answer is again, no. There will be short pauses in the fight but they are just that — pauses. For sure, there will be no end to the friction between the President and Congress. The reason is simple. The Constitution precisely designed this friction to exist between these two branches of government. They were separated from each other. They were given powers to check each other. Friction was inevitable between the two branches. It was thought that this friction would be healthy for our democracy. It was believed that this friction would prevent tyranny on the part of one branch of government over the other. After years and years of experience, we can conclude that at best, that idea is pure romanticism and at worst, is damaging to our democracy. The friction that separation of powers is designed to produce is turning out to be a flame, and has burned down our house of democracy. Why do I say that? One reason President Marcos declared martial law was dissatisfaction with Congress. Hence, he shut down Congress and that ended our democracy under the 1935 Constitution. It happened again in the time of President Estrada. His relationship with Congress was not too satisfactory. Congress tried to impeach him. When it failed, the mob took over. Again our democracy took a dive.

Fifth. The recurring news about the lack of independence of the Judiciary. Again, read our legal history. The message it imparts is that for the most part, our courts have not attained that independence enjoyed by their counterparts abroad. Certainly, during the years of American occupation, our Supreme Court lacked independence for its decisions were reviewed by the US Supreme Court. Indeed, its decisions were reversed not a few times. Fast forward its history and still, the complaint is that under the 1935 Constitution, the Judiciary cannot stand its ground against the two other branches of government. This weakness was fully exposed when Pres. Marcos declared martial law. All the significant decrees of Pres. Marcos passed judicial scrutiny and this raised a lot of howl among proponents of the rule of law.

Today, the independence of the Supreme Court is again hogging the headlines. The impact of the impeachment of former CJ Corona on the independence of the SC has yet to be measured. So is it with the continuing threat of the Congress to investigate how the SC is disbursing its funds. Add to that the insufficient budget allotted to the Judiciary since time immemorial.

Sixth. The recurring news that a great many of our local government units cannot progress because of too much control of the central government. During the Spanish rule of our country, they called this control as the imperialism of Madrid. During our American rule, it became the imperialism of Washington. After we ruled ourselves, it became the imperialism of Manila. 

The imperialism of Manila started in the 1935 Constitution. After 80 years, has the imperialism of Manila over our provinces, cities and municipalities, come to an end? The question answers itself. All that has been granted our local government units is limited autonomy and it has not worked. 

Today, the greatest threat to our democracy, more specifically to our territorial integrity is this anomalous imbalance of power, the insufficient power given to the Autonomous Region of Muslim Mindanao. Our leaders are trying to remedy this insufficiency by passing the BBL. Again, the enactment of the BBL is running thru a lot of Constitutional challenge. It is difficult to imagine the catastrophe that will befall the country if our leaders fail to correct this imbalance of power between the central government and the ARMM. No less than President Aquino says we will be counting body bags if the BBL fails to hurdle Congress. 

Again, the point is that the issue of concentration of power in our national government is very much alive. Power must be devolved not only horizontally but vertically, meaning, down to the local governments in a significant way. That cascading of real power has yet to happen.

We can go on and on but we don’t have the luxury of time. With the degradation of our democracy under the present unitary/presidential form of government, with the decadence that has taken place in our country for centuries now, what do we do? What can we do? Do we say constitutional change is not a priority? Do we dismiss the Constitution as a mere piece of toiletry? Nobody will buy that thoughtless stance. Others on the other hand, contend that what we need is not change in the Constitution but change of character. The translation is let us just pray, let us wait for the Second Coming of the Lord, wait for the Last Judgment where our character will be adjudged. 

I submit that we cannot wait any longer. Our experience of failure under a unitary/presidential form of government after more than a century is enough. It is ridiculous to argue that we are already familiar with our failures and let us just continue with them. The call for a radical reexamination of our Constitution is timely as it has been a consistent one from Recto, from Laurel, from almost all of our great constitutionalists. In surveys after surveys, our people also want meaningful change, even if that change has to come by changing our Constitution. Our major problems cannot be solved by the enactment of ordinary laws. They can be changed only by changing the architectural design of our Constitution. These problems whose solutions can no longer be held in abeyance are beyond dispute. Among others, we have the following problems: the necessity of shifting from the presidential-unitary form of government to a parliamentary-federal form of government; the need to put an end to the monopoly of political power by the political dynasties; the need to break the concentration of economic power in the hands of a few; the need to narrow the gap between the rich and the poor; the need to install an electoral system that can resist all forms of fraud and force; the need to check rampaging corruption in government and others, of similar significance. 

I like to believe that the Mamasapano incident is a divine wake up call to the Filipino people. It is a wakeup call not only for us to solve the problem of our Muslim brothers and sisters in Mindanao. It is a wakeup call to solve all our pestering problems. And we can do this only by urging our Congress to call for a Constitutional Convention composed both of elected and appointed delegates. We need a Constitutional Convention to tackle these major problems of our people. For we need an apolitical body to address these long lingering problems. And we need an apolitical body that will not be harassed by time visualizing the exigencies of tomorrow and crafting their solutions. 

We have delayed these reforms for more than one hundred years. We cannot delay any further. We have dreamt for these reforms. They said dreams should never die but dreamers do die. I say it is time to put a deadline on our dreams. 

Good day to all!