Thursday, January 13, 2011

Finally recognizing the failures of the EDSA constitutional system

For the first time, Congress (Senate and House), Civil Society and the Church have agreed that it is now opportune to amend the 1987 Constitution now. This I call the EDSA Constitutional system for it was born of a revolt on a highway and its creation announced on a military parade ground a stone's throw from that highway.  I was witness to both events.  The main reason why all agree to amend it is that the incumbent Chief Executive is simply not interested in prolonging his stay in the Palace.

But the President is nor thrilled about the whole enterprise which is puzzling since his problems in reforming governance is really stymied by how the Constitution is interpreted and applied. Former Supreme Court Chief Justice Reynato Puno in his address to the University of the Philippines upon his receiving the Dr of Laws degree says that Philippine democracy is in a "stretcher". I don't think it is in a stretcher yet but I think Philippine democracy has an autoimmune disease. One organ system is attacking the other and thus condemning the body to an early death.

Chief Justice Puno lists seven core areas where the nation can reform the 1987 charter's 'dinosaur" provisions. Much of these areas deal with the inherent gridlock of the Presidential system, insulating the judiciary from political influence and giving it budget and fiscal autonomy, and the lack of the republican character of the State. A radical proposal is to make economic and rights to education as civil rights.

There is a implied proposal to revisit the cabinet system of government (more popularly but inaccurately known as "parliamentary system" of government). One of the tragedies of the Cory Aquino ascendancy is that she could have had the Batasan dissolved under her powers, call for reelection and pack the Parliament with her supporters and enact the necessary reforms, the most immediate by which she could have amended using her decree making powers the 1973 Constitution back to its democratic form (which should have been  one of the best ways to spite Ferdinand Marcos) a much later reform was to call for an elected constitutional convention which could have made the cleanest break from the Marcosian past. This would have allowed the nation to heal itself and become less polarized. Mrs Aquino needed not have been a dictator. This was the line by which Prime Minister and Vice President Doy Laurel would have wanted. Laurel should have been left as Prime Minister heading the government and implementing Mrs Aquino's revolution and overseeing the constitutional transition. Puno implies that appointing a non-elected constitutional commission is one of the roots of the problem.

The way the 1987 Constitution was born with the appointment of commissioners rather than elected delegates doomed any moves to amend it. The 1987 Constitution was a fruit from a poisoned tree, even it guaranteed democratic governance. The resulting Presidential system was so dysfunctional and has metamorphosed into a body politic with an autoimmune disorder. The 1987 Constitution has only one goal and that is to prevent another Ferdinand Marcos from occupying the palace. The more diminutive (in physical stature but not in reputation) Mrs Gloria Macapagal Arroyo tried to do a Marcos. She could have succeeded if not for the changed geopolitical environment which now has SMS messaging, the Internet, Twitter, Facebook, blogs etc.

The supreme irony in this whole tale is that while the 1987 Constitution was successfully launched (amid coups and other preventable disasters) by the first President Aquino, the failure of the system is finally represented by the second President Aquino. The failures can be seen in 1) The Marcoses being zoomed back to power, 2) Mutineers like Honasan and Trillanes occupying senate seats and 3) The constitutional blocks to Mr Aquino's plans to reform governance. You call the EDSA constitution a revolution?

In England's Glorious (Constitutional) Revolution when the William and Mary of Orange were offered the Crown, Parliament became sovereign. The Divine Right of Kings was finally consigned to history and a Bill of Rights was promulgated. This is where we draw our civil rights. But the Revolution sealed the Protestant Ascendancy. We should have had something similar (not in disenfranchising Catholics, Protestants or whatever!) by ensuring the past should never be ascendant again!

It is time to consign the EDSA Constitutional system to history. Mr Noynoy Aquino's lackluster administration may yet be saved by ensuring that the 1987 Constitution is amended or better yet replaced by another one. For Cabinet system fans like me, we can revisit the 1973 Constitution by correcting its most obvious defect that even a non-lawyer would see. It puts no Reserve Powers in the Head of State. Even the Queen of England still has her reserve powers which she hardly if ever exercises since Her government is responsible to Parliament and Parliament responsible to the Electorate. The Queen and the Electorate have guaranteed democracy in Great Britain. We can also adopt the more progressive clauses of the 1987 Constitution have these in a new constitution.

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