Charter Change: The Quest to Overhaul Our Constitution.

It has really been a long time since my last article; it seems that your friendly neighborhood law student has taken a brief hiatus from the pad and paper to focus on his review subjects. But being that Constitutional Law is one of my favorite subjects, let’s talk about the latest developments “ChaCha.” No, not the dance your grandmother does every Sunday; but the Charter Change or  the overhaul of the fundamental law of the land, the Constitution.

The 1987 Constitution is said to be a by-product of people power; the world-renown event where ordinary people rose up against a president many believed to be a tyrant. The 1986 Constitutional Commission was composed of many legal luminaries, bright minds, and coincidentally members of the opposition of the deposed President Marcos. The 1987 Constitution was framed to set it apart from the 1973 and 1935 Constitutions.

As discussed by the late great Father Joaquin Bernas in his books, most written constitutions contain a Constitution of Rights and Liberties and a Constitution of Government. The former can mainly be found in the Bill of Rights as well as the provisions that protect labor, indigenous peoples, women, and other sectors. The Constitution of Government may be found all over our Constitution. Articles VI, VII, and VIII delineate that we have three great branches of government in consonance with the doctrine of separation of powers and the principle of checks and balances.

Most of all, it made sure that the President would stay in his place; not abuse his power, mainly his powers as Commander-in-Chief like the power to declare martial law and a state of emergency as well as the power to suspend the privilege of the writ of habeas corpus. The 1986 Constitutional Commission did away with the unicameral assembly that worked at the whim of a President/Prime Minister and reinstated a bicameral Congress in which there is a Senate and a House of Representatives. The latter was formulated based on the concept of corporatism, the integration of interest groups and marginalized sectors in the legislature.

The Judiciary was granted the expanded power of Judicial Review, not merely relying on the Political Question Doctrine, in which it could rule and intervene in cases, through a petition for certiorari under Rule 65 of the Rules of Court when the two other great departments of government, as well as other agencies, greatly abuse their discretion. The 1987 Constitution also contains Constitutional Commissions which are independent of the three great branches of government each with either the regulation of the civil service, elections, or the expenditures involving public funds. Local governments and autonomous regions were also granted political and fiscal autonomy but each of these were to be specifically delineated in the nomenclature of The Local Government Code of 1991 and the organic laws of Bangsamoro and the Cordillera Autonomous Regions.

With regard to the national economy, the 1987 Constitution adopted the Filipino First Policy. An application to this is the 60% Filipino capital ownership requirement as applied in corporations, especially those doing business in the nationalized sectors of our economy. The Supreme Court clearly laid down the purpose of this policy and its duty to defend the same in the case of Manila Prince Hotel vs. GSIS (G.R. No. 122156 February 3, 1997), to wit:

”The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution.”

One of the 1986 Commissioners, Atty. Christian Monsod is quoted as saying,

"No constitution is perfect, because it is written by imperfect people. But from hindsight we may have made two mistakes – we overestimated the spirit of EDSA and we underestimated the greed for power of politicians and the greed for wealth of the rich."

Many interest groups and incumbent politicians have seen flaws and loopholes in our present constitution. The term of the President, who was the face of the EDSA Revolution, was chock full of attempted coups led by the military men and politicians who formerly supported her; those who felt that the present constitution and the administration that aimed to initially implement it was no better than its predecessor.

In fact, there was a Supreme Court case that has caused many debates since its promulgation, which was the case of Marcos vs Manglapus (G.R. No. 88211 October 27, 1989). The main issue of contention was whether or not the President had the power to disallow the return of the remains of Marcos Sr. to the country. If we look at Article VII of the Constitution, there is no clear grant of such power but the Supreme Court ruled in such case that the President has been granted “residual powers” which are incidental to her executive power; such powers not expressly stated but necessary in order “to protect and promote the interest and welfare of the people.

In quoting the Supreme Court in this case:

“ [I]t cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what is expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of the specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power.”

Aside from this, many have called out that the 1987 Constitution has not completely accomplished one of its main goals: the establishment of a new social order. The poor are still poor and even poorer with the ruling class still having the same faces. The ideals of social justice and equity, although to some extent has been provided, are still far from reaching any meaningful reality. Some groups blame the framework of our government structure, it being too centralized in Manila and not empowering the regions for local autonomy.

That is the reason why many interest groups, especially those who supported President Rodrigo Duterte promote a Federal Parliamentary Structure because it would seem to empower the local governments and promote less reliance on the central government. A well-known thrust in the promotion of this concept was the one made by Atty. Raul Lambino in the case of Lambino vs COMELEC (G.R. No. 174153 October 25, 2006) in which the Lambino Group and thousands of registered voters intended to “amend” (but the Supreme Court ruled it as a revision) the 1987 Constitution by virtue of a people’s initiative. They aimed to change the governmental system from a presidential form to a parliamentary form, but this was ruled unconstitutional as an initiative was not a means to revise the constitution, and also that Lambino failed to show the voters the full draft of the supposed “amendments”.

Charter change is indeed an ambitious move that could not only affect a mere piece of paper but the future and well-being of all of us as a nation. The Constitution is the foundation on which all our laws are built and is the guiding compass of our government’s policies and our nation’s future. If one day, charter change were to push through, and our constitution will be revised, may the changes pick up where the previous constitutions fell short of, fill the loopholes that continue to empower and protect the oppressors, and create mechanisms for the greater good of our society and the general welfare of the people. May it also push for more accountability of public officers and additional safeguards against abuse of power. But for now, as law students and members of general society, we must keep in mind the quote of the late Robert Kennedy, former Attorney General of the United States:

“The glory of justice and the majesty of law are created not just by the Constitution - nor by the courts - nor by the officers of the law - nor by the lawyers - but by the men and women who constitute our society - who are the protectors of the law as they are themselves protected by the law.”