The flawed and fragmentary 1987 Constitution

Manuel (Lolong) M. Lazaro By Manuel ‘Lolong’ M. Lazaro Chairman, Philconsa   (Part I) Justice Oliver Wendell Holmes intoned: “A page of history is worth a volume of logic.” In a similar vein, Justice Benjamin N. Cardozo wrote: “History, in illuminating the past, illuminates the present, and illuminating the present, illuminates the future.” In viewing the 1987 Constitution through the lens of the present, we revert to the history of its making. EDSA in ’86 ushered in a tremendous color of constitutionalism. The 1973 Constitution was abrogated without the consent and approval of the sovereign people that ratified it. The constitutional process of amending the Constitution was conveniently brushed aside. The so-called “Freedom Constitution” was proffered, without the participation and ratification of the people. Parliament was abolished. All members of the judiciary from the Supreme Court to the municipal trial courts were required to tender their resignation letters, a distasteful pretext for mass dismissals. Local officials and other government officers were similarly pressured to resign their elective positions. These constitutional contortions were justified by labeling the government “Revolutionary Government,” which fomented a climate of animosity and vindictiveness. In an atmosphere of anxiety that pervaded the period, the people’s power was sequestered and exercised. The venerable separation of powers, the bedrock of constitutionalism, was perverted and defaced. In bizarre fashion, while the Freedom Constitution abrogated the 1973 Constitution, it incorporated by reference the majority of the provisions of the 1973 Constitution. In a sense, there were, in effect, two Constitutions in operation. The acts of the “Revolutionary President” were outside the ambit of the 1973 Constitution. They were all in derogation. The name “Freedom Constitution” is a misnomer. It generated fears rather than exuded or instilled a sense of freedom. It was riddled with makeshifts and evasions. To borrow the piquant phrase of Macaulay, the Freedom Constitution was “all sail and no anchor.” By its nature, a Constitution is the solemn expression of the highest will of the sovereign people. Its making is the supreme political act reserved exclusively to the people. Participation of the people through their elected representatives is the very essence and epitome of framing a Constitution. It is the kernel of “people power.” The sovereign people is the sole and ultimate repository of power to frame, amend or revise a Constitution. This power cannot be sequestered by a squatter sovereignty. No tolerated usurpers or body of interlopers can be the source of power. The dramatis personae who drafted the 1987 Constitution were handpicked by one person. This fatal flaw shattered the basic principle of formulating a Constitution. The framers were not the chosen representatives of the people. They could not mirror or reflect the people’s will. As a result, the finished product is not vox populi. Viewed from this perspective, some persistent questions emerge: Is the 1987 Constitution a complete and mature fruit of sober reason, or an over-ripe product of passion? Is it a flawed and fragmentary Constitution? If so, is there an imperative need to amend or revise the 1987 Constitution at this time? By what mode should its amendment or revision be made? Reaction to Marcos era The timing to incite the Constitution was not ripe. The framers were too much involved with the prodigious turn of events in 1986 to be emancipated from prejudice and objectivity. It was forged in the blinding heat of passion. Without doubt, the 1987 Constitution was a palpable reflex reaction against the Marcos era. Axiomatically, a Constitution does not address itself to present or recent events and problems. It transcends the fleeting present. It is, in Marshall’s words, “intended to endure for ages to come.” Current events or problems are for the statutes to tackle. As supreme law, the Constitution must be characterized by sobriety, cool reflection, and foresight. The fear that another Marcos might emerge ushered in the use of fastidious, even faulty, language of the 1987 Constitution characterized by an anarchy of details, if not a tyranny of doctrinaire concepts. This is best exemplified by the too elaborate and repetitive Preamble. For example, it emphatically declares that the Filipino people ordaining or promulgating the Constitution are “sovereign.” While seemingly innocuous, it is historically inaccurate. The framers were not elected by the Filipino people. Thus, the framers could not arrogate unto themselves the act of the sovereign people. Besides, the word “sovereign” is redundant since no people can ordain or promulgate a Constitution unless it is free and sovereign. Sec. 1, Art. II already makes clear the seat of sovereignty. Consider also the use of the words “Almighty God” in the Preamble. It was preferred over “Divine Providence” employed prudently in the 1935 and 1973 Constitutions to encompass Filipinos who do not subscribe to the Christian belief in God. It was ostensibly intended to make God “more personal” and in consonance with Filipino religiosity. However, the intent of the framers is not realized simply by renaming “Divine Providence” to “Almighty God.” The oath of public office makes use of the word “God.” The qualifying word “Almighty” has even a fearful connotation, evocative of the God of the Old Testament. In contrast, “Divine Providence” implies a caring God who is more personal for many Filipinos. Be that as it may, the choice of “Almighty God” may be a glowing reminder of the bumptious and unbounded influence of the Church and the emerging footprints of the clergy. The terms “just and humane” to qualify “society” are elaborated or expanded by the penultimate clauses “under the rule of law” and “a regime of truth, justice, freedom, love, equality, and peace.” Secs. 9 and 10 of Art. II speak of a “just and dynamic social order” and “social justice,” respectively, in regard to the socio-economic program of government. But all these grand terms could have been simplified in one word: Justice. Justice is a broad concept comprehending a multitude of meanings. It is rendering what is due to another. It is also the “humanization of laws” as Justice Laurel wrote of social justice. It is humane. It is faithful observance of the rule of law. It reveres truth, freedom, and equality. The fruit of justice is societal peace. In other words, the framers could have settled for one word, instead of a multitude of words, to express a host of meanings. The various types of justice, as conceived by the framers, do not detract from the basic notion of what justice is. Due to the uncertain use of words, aggravated by verbosity, the Constitution turned out to be lengthy and ambiguous, to which ordinary Filipinos find it difficult to relate. Commissioner Jose E. Suarez, who refused to sign the 1987 Constitution, gave a trenchant description of the document: “Instead of being brief, our draft is too wordy. Instead of being broad, it has become too concerned with detail. Instead of being definite, it suffers from vagueness and ambiguity. Too many words distort the essence and proper meanings and leave the door for erroneous interpretations.” A Constitution must employ language with precision and conciseness of phrase. After all, clarity of expression has repeatedly won the warmest encomiums from jurisprudence. The imprecision of the language only invites or fuels litigation. This is one of the dismal failures of the 1987 Constitution. The need to amend the Constitution to simplify its language becomes imperative. State policies should be constricted to fundamental policies universally accepted and unalterable in character. Principles and state policies are the progeny not of authority, but of time and universality. The Constitution should not institutionalize or experiment with flawed ideals. The framers failed to consider Dickenson’s maxim “Experience must be our only guide. Reason may mislead us.” Experience, as aptly pointed out by Alexander Hamilton in the 15th Federalist, is “the best oracle of wisdom.” (To be continued)