How the Philippines could overcome its deep mistrust of constitutional reform

By Michael Henry Yusingco

The Philippines has had three constitutions. The first one, the Constitution of 1935, was part of the preparatory process before the granting of independence by the United States in July 1946. The second one of 1973 provided the fourteen-year authoritarian regime of President Ferdinand Marcos, Sr with a coat of legitimacy. The third one, taking effect in 1987, restored a Republican democratic system in the country.

Despite numerous attempts, the 1987 Constitution has not been amended since its ratification. Initiatives to change a constitution, and moves of resistance, are part and parcel of a constitutional democracy. Actually, the Philippines finds itself in a fortunate position, because the failure of past attempts at amending the 1987 Constitution can offer valuable lessons.

Deep Public Mistrust as a Result of the Past

Various reasons account for these failures, but most fundamentally, a national scepticism, based on the historic experience of dictator Marcos Sr’s abuse of constitutional change, believes that amendments are just a scheme to extend the term of a sitting president. In

1971, a constitutional convention with elected delegates began drafting a new constitution. Before they could finish their work, Marcos Sr declared Martial Law. Under tense and tumultuous conditions, the constitutional convention somehow managed to produce a draft that eventually became the 1973 Constitution. However, this constitution made Marcos Sr a constitutional dictator, in which he exercised both executive and legislative powers as President.

This deep public mistrust is reflected in two nationwide surveys conducted in 2018 by the most respected polling firms in the Philippines. Pulse Asia Research showed that 64% of the respondents were not in favor of amending the 1987 Constitution. The other survey by Social Weather Stations reported that only 37% of Filipinos supported a radical revision of the charter to facilitate the shift to a federal system of government.

Pertinently, even the newly-elected President Ferdinand “Bongbong” Marcos Jr concedes that it will be very difficult to overcome the Filipinos’ strong bias against politicians who propose amending or changing the 1987 Constitution. It is worth noting that he never made a commitment during the campaign to shift to a federal system, even though he stood for election under the banner of the Partido Federal ng Pilipinas (Federal Party of the Philippines). In contrast, outgoing President Rodrigo Duterte campaigned with the slogan “No to Drugs, Yes to Federalism”, promising to guide the Philippines towards a federal form of government. The special group that he organized to produce a draft federal constitution actually completed their work and submitted to him the so-called Bayanihan Federal Constitution. However, right in the middle of his six-year term, President Duterte simply abandoned this campaign promise, rationalizing that Filipinos were just not ready for federalism.

It is not yet clear if the incoming administration of President Marcos Jr will push for a revision of the 1987 Constitution. Back in 2015, as a senator, Marcos Jr asserted that when a new President wanted to amend or change the constitution, he would have to initiate the process within the first year of his term of office. So, if this was indeed part of the new President’s plan, then an announcement on this matter may be made soon.

Learning the Lessons of Constitutional Reform

One crucial lesson from the past is that constitutional change will not eventuate if the polity is not completely convinced there is a need to do so. Effectively, all previous amendment initiatives were essentially political projects of incumbent high-ranking public officials. Leaving their supporters out of account, there was a disconnect between the public-at-large and the reform effort. According to Elkins, Ginsburg, & Melton, even though a constitution may leave relative winners and losers in its wake, it will not be subject to change if the majority of the polity – which is the aggregate of all losers and winners – continues to believe that they were better off under the current charter, and hence averse to taking a chance, spending resources, and negotiating for a new one.

Thus, an earnest effort to help Filipinos understand the need for constitutional amendment is a necessary first step in this massive reform initiative. This means that a genuine public discourse on the deficiencies of the 1987 Constitution and corresponding revision proposals must be conducted as an essential complementary prerequisite to the constitution-writing process. This has never been done before.

Another vital lesson from previous initiatives is that the approach must be tailored to ensure the ardent participation of Filipinos in every phase of the process. Past campaigns have failed in this regard because they have always revolved around the personalities leading it and their motivations. The role of the people in constitutional reform can no longer be overlooked. Likewise, the Guidance Note of the Secretary-General for United Nations Assistance to Constitution-making Processes says:

“A genuinely inclusive and participatory constitution-making process can be a transformational exercise. It can provide a means for the population to experience the basics of democratic governance and learn about relevant international principles and standards, thus raising expectations for future popular engagement and transparency in governance. Inclusive and participatory processes are more likely to engender consensus around a constitutional framework agreeable to all.”

Accordingly, a democratic deliberative process underpinning constitutional reform can potentially make the entire exercise a paragon of civic engagement. Democratic deliberation means people coming together, on the basis of equal status and mutual respect, to discuss the issues and problems they face. Consequently, they decide on the corresponding reforms that they will collectively undertake. Adopting this mindset can help shifting focus away from the narrow pursuit of political self-interest, to put it squarely, towards the common good. More importantly, this mentality helps securing a space in the public discourse for those voices that can easily be marginalized in a government-led advocacy campaign.

The Barangay Assembly Could Be of Avail

In concrete terms, these deliberative sessions should make use of the Barangay Assembly mechanism. The barangay is the smallest political and geographical unit of the Philippine state. By law, each of the more than 42,000 barangays all over the country has its own

Barangay Assembly, which essentially functions as the citizen’s parliament of the barangay.

However, applying the deliberative approach requires a high degree of openness and honesty from the participants. They must be prepared to make intelligent and coherent arguments, while at the same time be willing to understand and critically engage with the arguments of others. Crucially, participants must not be averse to the possibility of being persuaded by the better argument. Therefore, civil society organizations (CSOs) must be conscripted to help organize and manage such proceedings in the Barangay Assembly. CSOs refer to the whole range of non-state, non-profit organisations and groups, including, non-governmental organizations or NGOs, socio-civic organisations and academia. In the Philippines, these groups are generally held in high regard and are considered a strong force in the political arena, being well-known to have the technical expertise to conduct vibrant and inclusive community discussions. A CSO-Barangay Assembly joint effort can foster adherence to deliberative democracy standards, thus making it possible for the Barangay Assembly to become a free and safe space for Filipinos to learn and understand why and how the 1987 Constitution can be amended. Each Barangay Assembly could also be tasked with the production of a position paper outlining the flaws of the national charter and the concomitant requisite reforms. These position papers could be collated and analysed to distill a set of proposed amendments. This list could then be utilized as the impetus for the amendment process.

If the incoming administration of President Marcos Jr decides to pursue a constitutional reform, then it should seriously consider learning the lessons from the failed attempts to amend the 1987 Constitution, as well as the alternative approach proposed here. An organized structure, borne by a deliberate ethos, in which the people can openly and freely discuss constitutional questions and issues would certainly increase the chances of a consensus on this matter. At the very least, the whole exercise could foster a deeper appreciation of the 1987 Constitution amongst Filipinos. (