COMMENTARY: Are Filipinos ready for

constitutional reform?
By MICHAEL HENRY LL. YUSINGCO
JUNE 22, 2016

MELBOURNE, Australia (MindaNews / 22 June) Many constitutional scholars maintain that pathologies in
a constitution can emerge during its reign. These pertain to provisions in the constitutional text itself that may
have been designed with good intentions but have eventually become debilitating to the political system it
purports to govern. Our very own 1987 Constitution is no exception.
Dr. Raul C. Pangalangan, the former dean of the University of the Philippines College of Law and presently a
judge in the International Criminal Court, has proffered an organic irregularity in our charter, a built-in
contradiction between the economic and the governance clauses of the constitution. This of course dovetails
to the economic amendments agenda of Congressman Belmonte and his cohorts which is fundamentally
grounded on the belief that de-nationalizing economic sectors in the country will bring in a deluge of foreign
direct investments (FDI).
Appealing as their arguments for opening certain industries to foreign ownership are, this is still not actually a
clear-cut proposition. There are still many questions regarding this matter that have to be dealt with before
attaining any solid consensus. President Noynoy Aquino actually posits a sound argument when he points to the
impressive performance of his administration in attracting FDI.
So is the influx of FDI really dependent on allowing foreign ownership in education, media and
telecommunications? Or is the reason why FDI cannot fully take off in the Philippines is still the same old graft
and corruption in government? Meaning, if foreign ownership in these industries is indeed allowed but graft
and corruption in government remains business-as-usual, would there still be a surge of FDI to the country as
Congressman Belmonte and his group predict? And how about the reverse, would it attract a higher level of
FDI than the one our country is receiving now? It is quite evident that there is still a lot to be discussed on this
issue alone. What more the other pathologies?
However, it is particularly interesting to ask why after all these years, and after all the critiques launched at the
1987 Constitution, is still there a passionate distrust for moves to amend or revise our constitution?
The answer perhaps lies in our unresolved issues with the Martial Law period of our nations history. Indeed,
the immediate reaction to doubt charter change advocates implanted by the case of Javellana vs. Executive
Secretary has not been lost with the passage of time.
Note that the Supreme Court in this case actually ruled that Ferdinand Marcos Sr. railroaded the adoption of the
proposed Constitution in 1973. The citizens assemblies he organized, where the ratification of the proposed
charter was determined by a show of hands, were declared improper and could not be the basis to legitimize a
constitution. In fact, the high court opined that this exercise was an absolute farce, not only because of its
inherent inanity but, more so, because Marcos guns and goons were outside the halls where these assemblies
were helda scenario that obviously precluded any legitimate outcome arising from the process.
And yet, legal scholar Professor Dante Gatmaytan-Magno points out in Changing Constitutions: Judicial
Review and Redemption in the Philippines: In Javellana, a majority of the Supreme Court declared that the
1973 Constitution was not properly ratified. However, because the constitutional requirement of two-thirds of
the Court voting to declare a law unconstitutional was not met, the Court also concluded that the new charter
was already in effect. That decision allowed Marcos to govern under a dictatorship until he was forced out of
office in 1986. Since that time, the Supreme Court has had to live with the realization that it became an

accomplice to the emasculation of Philippine democracy. Many wonder if the Court will allow itself to be used
in a similar fashion at some point in the futureor the present.
Pertinently, the professors apprehension over the possibility that the Supreme Court will again lose its
constitutional fortitude has been affirmed by the recent decision in the case of Enrile vs. Sandiganbayan to
allow an accused plunderer, Sen. Juan Ponce Enrile, to post bail. The public was clearly dismayed by the high
courts preferential treatment of the veteran lawmaker. This disappointment was exacerbated by commentaries
from a host of legal scholars showing that the decision actually ignored the parameters on the right to bail
established in Article III, Section 13 of the Constitution. And so with flouting the rule of law at the top level of
the judiciary still possible, the general publics serious anxiety over charter change seems justified.
But apart from this lingering distrust, our experience with commencing constitutional reform limited by a fixed
timetable is a stark lesson. In this regard I note the regret of Rene Sarmiento, a member of the 1986
Constitutional Commission, over the decision to just rely on Congress to enforce through legislation certain
fundamental directives in the charter (i.e. prohibition against political dynasties). The former COMELEC
Commissioner lamented, There was political instability, coups were being staged. There was an urgency to
stabilize the country and we were pressed for time. Poignantly, Sarmiento now admits that, We did not
foresee that after EDSA 1, change will take time.
Such a realization is indeed an important caveat for all of us contemplating a complete overhaul of our current
charter specially that the gravity of constitutional reform is now indisputable. The 1986 Constitutional
Commission worked under an urgent deadline and that was to legitimize the revolutionary government of
President Cory Aquino. But we are certainly in a more fortunate position now because there are no reasons or
contingencies that compel us to rush constitutional reform. Therefore, any attempt at charter change without
going through any form of comprehensive public discourse must be rejected.
More importantly however, I suggest that avid proponents of constitutional reform in the administration initiate
first a preparatory step in the form of a massive civic education campaign on constitutional principles for local
communities. After undergoing this political exercise, Filipinos from Batanes to Tawi-Tawi, will be able to see
themselves not merely as passive observers in the sidelines but as continuing stakeholders to the enforcement of
constitutional rules and tenets. And I genuinely believe that it is only upon reaching such a level of
constitutional awareness can Filipinos confidently undertake the constitutional revision process.
(MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He
is presently completing a Masters of Law and Development in Melbourne Law School. He recently published a
book entitled, Rethinking the Bangsamoro Perspective.)

From:
http://www.mindanews.com/mindaviews/2016/06/commentary-are-filipinos-ready-for-constitutionalreform/