Fault not in our Constitution

By Artchil B. Fernandez

It’s the fault of the 1987 Constitution cries the TV ad “Edsa-pwera” – a play on the Spanish term “echa fuera,” which means to throw out, that flooded the airwaves last week.  The advertisements were paid for by the law firm Gana Atienza Avisado on behalf of its client, the People’s Initiative for Reform, Modernization and Action (Pirma).

Pirma is back and for the second time is launching a campaign to amend the Constitution through a people’s initiative.  The group made the same attempt during the Ramos administration, but it was unanimously shot down by the Supreme Court finding the petition initiative defective.

The current move of Pirma blames the Constitution for the current woes of the nation, particularly it backwardness and late development.  “It’s time to take action,” the Pirma ad shrieks. “It’s time to rectify the defective 1987 Constitution. Gawing ‘saligang patas’ ang Saligang Batas. [Make it a fair Constitution].”  The ad claims provisions in the Constitution that bars foreigners from owning land and key industries like public utilities, educational institutions, media, and advertising hinders the progress of the country.

“Edsa-pwera” TV ad is not only a clever play of words but hits three birds in one stone.  It promotes constitutional amendment while attacking and spitting on the legacy of Edsa People revolt and at the same time pushes the Marcos lies on the fictional “Golden Age.”  The ad asserts that Edsa People Power stunted growth and progress which is a blatant falsehood.  The economy was on the brink of collapse in the dying years of the dictatorship of Marcos senior and poverty rate is more than 50 percent.  The 1986 Edsa People Power revolt ended a brutal and corrupt regime not a “Golden Age.”

Timing of Prima signature campaign is highly suspicious.  It came on the heels of Bongbong Marcos (BBM) expressing openness to constitutional amendment.  In the first year of his administration BBM empathically said tinkering with the Constitution is not in his agenda.

BBM’s softening on charter change (cha-cha) is preceded by the declaration of his cousin Speaker Martin Romualdez in the last month of 2023 that the House will push for constitutional amendment in 2024. The mode of cha-cha the Speaker favors is people’s initiative to resolve the impasse on charter change proposals between the House and the Senate.  “We will highly recommend that we embark on a people’s initiative,” he said.

As if moved by an invisible hand, Pirma launched its signature campaign immediately after Speaker Romualdez and his cousin president signaled their receptivity to charter change.  On cue constitutional change is now high in the agenda of Congress.  Surprisingly, the Senate which is always the bastion of resistance to charter change in past decades suddenly is now receptive to the idea, launching its own bid to tweak the Constitution.  Senate President Zubiri himself is leading the Senate initiative.

Echoing the position of Prima and the House, the Senate resolution is limiting the amendment to the economic provisions of the Constitution which are being blamed for the messy state of the nation.  Is the Constitution to blame for the inability of the Philippines to be a progressive and prosperous nation?

Proponents of charter change claims the economic provisions of the Constitution restricting foreign ownership hinder the economic growth of country hence the need to amend them.  However, it was shown that relaxing foreign ownership has been done without resorting to charter change.  Congress passed Republic Act (RA) 11659 or the Public Service Act (PSA) in March 2022.  The law distinguishes public service and public utility.  Telecommunication, shipping, airline, railway, toll road, and transport network vehicle industries are now excluded as public utility and foreigners can now fully own corporations in these utilities.  Other laws passed by Congress that allows 100 percent foreign ownership are Foreign Investment Act (RA 11647) and Retail Trade Liberalization Act (RA 11595) as well as the law on renewable energy development.

There is no need to amend the economic provisions of the Constitution since congressional action alone is enough to address the concerns raised by Pirma and both Houses of Congress.  Truth is Congress is the problem not the Constitution.

The 1987 Constitution contains progressive provisions especially the social justice section but Congress failed to pass enabling laws to implement them.  Political dynasties for example are banned by the Constitution but Congress did not pass a law that concretizes this.  Failure of Congress to pass the anti-dynasty law preserved and perpetuated feudal democracy in the country which enabled few families to monopolize political power.  Elite rule is one major factor the country is poor.

If all the social justice provisions of the Constitution are implemented through passage of laws that give teeth to them, the Philippines would be moving toward progress and development.  The country is stuck in the morass of late development because Congress failed to pass laws that would restructure the highly asymmetrical social system that makes the rich richer and the poor poorer.

If Philippines is poor and late developed, the fault is not in our Constitution but in Congress.  Besides, Philippines had been integrated in the global economy via trade liberalization, deregulation, and privatization for decades.  Yet the promised paradise of these tools of neo-liberal economic thinking had not been realized.

Instead of charter change, what the country needs is a review and change of its economic policy and thinking.  The problem is not the Constitution but the neo-liberal economics being pushed by leaders of Congress and the elite that benefits from it.