Monday, September 24, 2012

Founding Mothers: 1987 Edition

Reader and eccentric Mariano Renato set the scene for this blog the other day:

  • In the Philippines where I've been living here for the past 75 years, to this day, I DO NOT KNOW WHO THE FRAMERS OF PHILIPPINE CONSTITUTIONS ARE, WHAT WERE THEY THINKING, WHY THEY FRAMED THE CONSTITUTION THE WAY IT IS WRITTEN. . .

Well I sure cannot, for sure. 1987 was a nondescript year. I tried to recall what happened that year and came up empty. Well, I was in America, so I was irrelevant myself. In the Philippines, it was one year after Cory Aquino replaced Ferdinand Marcos. It was an important year.

 I suppose that episode was a little like America throwing the British out. The Free Philippines threw the Totalitarian Philippines out.

Well, tried to. It wasn't quite as clean a break as found in America, where the Brits retreated to England. The totalitarians in the Philippines ran for senate. And won. One of them is the Senate President, still a rebel hot-head after all these years.

Thomas Jefferson had a strong hand in writing the American Constitution but other "Founding Fathers" were also instrumental in defining the values and laws under which America would stand free and democratic.

The 1987 Philippine Constitution is actually the sixth Constitution the Philippines has had since it adopted democratic principles after its independence from Spanish rule:

  • 1898 The Republic under Aquinaldo
  • 1935 The Commonwealth Constitution under the US
  • 1946 Post WW II; the Laurel Constitution
  • 1973 The Marcos Constitution
  • 1986 Freedom Constitution (transition)
  • 1987 Current Constitution

I did have to google and wiki to discover just what happened in the Philippines in 1986.

Ferdinand Marcos was ousted and President Cory Aquino issued a proclamation that introduced a transitional "Freedom Constitution" aimed at holding things together during the writing of the permanent Constitution.

Ms. Aquino was one of the "Founding Mothers" of the current Constitution.

President Aquino's proclamation formed a Constitution Commission of 50 people responsible for drafting the permanent Constitution. It was a hodgepodge of notables from different disciplines, including congressmen, Supreme Court Chief Justice Roberto Concepcion, Catholic Bishop Teodoro Bacani and film director Lino Brocka. The Commission included five people from the former Marcos government including former Labor Minister  Blas Ople.

The Commission elected as its president Cecilia Munoz-Palma who led opposition against Marcos after she retired as the first female Associate Justice of the Supreme Court. While on the court, with Marcos in charge, she issued rulings challenging his ambitions. Later she backed President Estrada and opposed President Arroyo. She died in 2006 at the age of 92.

She is the second "Founding Mother". She organized the Constitution Commission.

The writing was contentious, with many heated debates and even walk-outs. Hot issues were the form of government, the death penalty, American presence at Clark/Subic, and economic principals (e.g., land ownership).

I can't imagine 50 people writing on one document. I'm sure they started with the U.S. Constitution and built their own framework, with much of the writing done by one or two members and staffers. They remain anonymous. No one raises them up, as do Americans, in appreciation of the wisdom and wordsmithing, particularly, of Thomas Jefferson, James Madison, John Adams and Thomas Paine, three of whom became presidents.

If records do exist as to who did the main wordsmithing on the Philippine Constitution, I have not discovered them online.

The drafting was completed and approved by the Commission with two "No" votes. It was presented to the public for ratification in early 1987. It was approved by a vote of about 17 million "for" and 5 million "against".

MEMBERS OF THE CONSTITUTIONAL COMMISSION

President: Cecilia Munoz Palma
Vice-President: Ambrosio B. Padilla
Floor Leader: Napoleon G. Rama
Assistant Floor Leaders: Ahmad Domocao Alonto, Jose D. Calderon

Members: Yusuf R. Abubakar, Felicitas S. Aquino, Adolfo S. Azcuna, Teodoro C. Bacani, Jose F. S. Bengzon, Jr., Ponciano L. Bennagen, Joaquin G. Bernas, Florangel Rosario Braid, Crispino M. de Castro, Jose C. Colayco, Roberto R. Concepcion, Hilario G. Davide, Jr., Vicente B. Foz, Edmundo G. Garcia, Jose Luis Martin C. Gascon, Serafin V.C. Guingona, Alberto M. K. Jamir,Jose B. Laurel, Jr., Eulogio R. Lerum, Regalado E. Maambong, Christian S. Monsod, Teodulo C. Natividad, Ma. Teresa F. Nieva, Jose N. Nolledo, Blas F. Ople, Minda Luz M. Quesada, Florenz D. Regalado, Rustico F. de los Reyes, Jr., Cirilo A. Rigos, Francisco A. Rodrigo, Ricardo J. Romulo, Decoroso R. Rosales, Rene V. Sarmiento, Jose E. Suarez, Lorenzo M. Sumulong, Jaime S. L. Tadeo, Christine O. Tan, Gregorio J. Tingson, Efrain B. Trenas, Lugum L. Uka,Wilfrido V. Villacorta, Bernardo M. Villegas

The entanglements from the list of Commissioners is interesting. Attorney Felicitas S. Aquino is the wife of Senator Joker Arroyo. Joker Arroyo was previously an attorney opposing Marcos and defending those accused of government of misdeeds.  He was also counsel to Cory Aquino.

  • "I think that it is now the time to return the power to the people; let us have faith in them. And by faith, I mean real and abiding faith, not just looking at the people as some kind of a mystical entity in whose name the eternal political in some of us have done themselves proud. In other words, let the Filipinos chart their own histories." Constitutional Commissioner Felitas S Aquino, 1986

Fr. Joaquin G. Bernas, S.J., J.S.D. is a Jesuit and is Dean Emeritus of Ateneo Law School in Makati City, Philippines.  He is a Constitutional law expert and burr in the Catholic saddles at times. You can read his blogs by going to The Blog Center.

 Christian S. Monsod is former chairman of COMELEC.

You can research the others at your leisure.

Today we hear occasional calls for re-write of the Constitution. Some argue that federalism is more important for a diverse nation situated on different islands. Others argue for a parliamentary form of government to run the nation more as a business would run. Many argue the Philippines should liberalize its rules for foreign investment so foreign residents and businesses can fully own properties and businesses, injecting both cash and know-how into the economy.

JoeAm argues, what's the point of a new piece of paper when the disciplines to enforce laws are so weak? The courts are stuck up in the trade of favors and inefficiency. Case law is highly unreliable because the decisions are so weak and tainted with favoritism. Bodies like the Senate do not operate according to the highest ethical standards, freely plagiarizing speeches and revealing state secrets on negotiations with China. One can not quite TRUST the motives of anyone calling for a redraft of the Constitution.

President Arroyo pushed trust out the door.

Until the agents of governance are more disciplined and clearly focused on public interest, any proposal to redo the Constitution will break down into acrimony and dysfunction, blocking progress toward the development of progressive ways and means.

Face it, the Philippine Constitution will never be a rallying point, as was the American document. It will never crystallize the ideals of a nation in words.

Filipinos far and wide are not so interested in words.

Rallying is best be done by Manny Pacquiao and Jessica Sanchez or lightning rods like China and America, when they act with offense.

Ideals are not something Filipinos are fond of, or deal well with. Like the nuances of freedom of speech and plagiarism, representing the good and the bad of ideals. Ideals are not rallying points here. Offenses are.

But I digress royally.

Kudos to the Mothers of the Philippine Constitution for getting crafted a sound anchor to laws in a rather lawless land.

information source: wikipedia; photo: public domain

31 comments:

  1. 1987 constitution is flawed because it was crafted out of 3 preconceived notions.
    1. Knee jerk response to martial law
    2. Protectionism concept
    3. Nationalistic fervor out of anti american feelings

    Looking at the provisions requiring changes like land ownership of foreign entities, one could only feel disgusted by the crafters why on earth they believed that economy will flourish by forcing foreigners to use dummies as majority corporate owners to do business in the Philippines.

    Johnny Lin

    ReplyDelete
    Replies
    1. That explains a lot, Johnny. I've read some of the language now and then and it is clear that the nationalistic fervor ran nearly paranoid. The notion that a Filipino who got overseas citizenship somehow immediately, through that act, became a security risk and needed to be divested of Philippine citizenship.

      And, indeed, it is bizarre to expect a vibrant economy when all the red tape and anti-investment laws keep the most productive people out, the updated science and production methods. Again, paranoid, as if Filipinos cannot compete with Americans or Europeans or Asians. They can. But they have to go to other lands to prove it.

      Delete
    2. That also explains why you believe a comprehensive re-write is in order.

      Delete
    3. Joe, the philippines allows dual citizenship.

      Delete
    4. Lately and begrudgingly added because so many rich OFW's wanted to come home and complained that they were being treated like lepers, so it became in the national security interest to let them and their money back in.

      Delete
    5. Here's what the Constitution says: Article III, Section 5. "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."

      Delete
  2. Perhaps the correct approach was to have gone back to the 1935 Constitution, the one in effect before Marcos' martial law, and amend it - not write a new one.

    1. The economic provisions of 60% Filipino ownership would still be the same. No harm here.

    2. The barangay level of local government units - from the Marcos Constitution - might not have been considered. Great improvement here.

    3. The party-list system may not have been considered. Another great improvement here.

    4. The knee-jerk reaction against executive and legislative terms could have undergone greater debate.

    5. The following could have been considered as important amendments and afforded more detail:

    5.1. Separation of State and Church - Cloned as is from the Marcos Constitution
    5.2. The prohibition against political dynasties - totally new as a considered reaction to Marcos

    But hindsight is easy; foresight is tough.

    "Ideals are not something Filipinos are proud of..." This observation hurts but it is true. Quezon said it with his preference for a "a government run like Hell". Ninoy said it when he asked if the Filipino is worth dying for - not living for.

    If we go back to Rizal, one would be hard-pressed to name one ideal he espoused except for love of country. His views were negations - against Spain, against the clergy, against the indolence of Filipinos.

    Robredo, with his ideals of the public official as a servant of the people, of direct participatory democracy and of transparency and accountability, would be an exception.

    ReplyDelete
    Replies
    1. Interesting analysis. You have a lot of initiative, I'll give you that. I was thinking I'd take a shot at re-writing a bit of the current constitution. What section should I start at? (I want to confirm my suspicion that it is frickin' difficult to write a constitution). (Plus I can see how satire works in the highest law in the land.)heh

      Delete
    2. Start with the Preamble.

      o Why "We, the sovereign Filipino people" instead of the original "The Filipino people"?

      o Why "Almighty God" instead of the original "Divine Providence"?

      o Why have "truth", "love", "equality" and "peace" been added and "liberty" replaced by "freedom"?

      I understand the Preamble is hardest to write because it's supposed to summarize the whole.

      But I thought the idea of the Filipino lacking ideals was more important than re-writing or amending the Constitution. We have to get those ideals right before enshrining them in a Constitution.

      Delete
    3. Edgar,

      Yes I also liked the 1935 constitution. And I think that under the 1935 constitution senatorial election was based on party slates. But that was changed to individual choices after the war. That would be something for those who like strong party systems

      Delete
    4. You know, you are the person who should re-write it. Your gift with words is amazing. But I'll do my version of the Preamble. I promise not to sottoize the US Constitution. Thanks for the suggestion. I also may take a section from within the body and rework it.

      Delete
  3. WHAT WERE THEY THINKING, WHY THEY FRAMED THE CONSTITUTION THE WAY IT IS WRITTEN?

    Read the journals of the Constitutional Commission, you will find the answers to your questions there.

    ReplyDelete
    Replies
    1. MB, is there an online version? If so, can you provide the link? I googled said journal and came up empty. Thanks.

      Delete
    2. We will have an online version up by November.

      Delete
    3. There I even misspell the name of the website :)

      Delete
  4. This Constitution says, "It shall equally protect the life of the mother and the life of the unborn from conception." It is one clear demonstration of having a law that can never be fully implemented. Who knows exactly when conception has actually happened? Poor education, poor science and technology, you get a poor constitution.

    ReplyDelete
    Replies
    1. How would you reword that section? I agree with you it is easy to spot what we, in 2012 determine are deficiencies, some the result of historical enlightenment, some the writers probably just missed in their rush to get the Constitution done.

      Delete
    2. Angel and Joe,

      i will rewrite it this way, "It shall equally protect the life of the mother and the life of the unborn."

      That way I avoid "from conception" because it's a loaded idea. Among Catholics, conception means the thing has a soul thus it cannot be aborted. So just say the unborn and we don't have to get into an argument over when life begins. If it's in the womb and it's growing then you have to give it equal protection.

      Now the problem will be what is equal protection when you have to choose between the mother and the unborn. That's a very difficult decision I am not qualified to make. I guess a doctor would know who would have a better chance of surviving and the mother would have to take it from there.

      But I'm not really convinced that abortion is only for the mother to decide. Barring a real threat to her life, I think a father should also be allowed to weigh in, unless of course he raped the woman so he could have a child by her or the pregnancy brought about by rape was unintended. In that case I think the mother's wishes should carry more weight.

      Delete
    3. It depends on the age of the mother. If she is over 18, an arbitrary standard of maturity useful in defining laws, the woman should be empowered to make her own decisions. She can seek counsel wherever she wants, but in the end, only one person can make that decision, and no one else has a right to meddle. They don't have to live with the consequences.

      Delete
  5. Remove it, it is a medical decision made by the woman and her doctor.

    ReplyDelete
    Replies
    1. Yes, that makes good sense. I think one of the flaws of the document is that it tries to write too much specific law rather than writing the principles than are then applied to specific incidents by the courts through case law. The section you cite is a good example. The document is undermined as a profound statement of national rules. If it were simpler and more profound, perhaps the senators could grasp what freedom of speech means, and also that working for the public benefit requires living up to the highest ethical standards. Those principles are in there now but buried under the mass of words dealing with particulars.

      Delete
    2. If the RH bill has taken so much time and caused so much divisiveness, could you imagine what it would take to remove this specific passage?

      Delete
    3. Who is arguing for removing this specific passage? Not me. The choice is re-write the entire constitution, which would throw government up in the air and stall progress, or continue with the existing document and tap on a few well-aimed amendments. Like to permit greater foreign ownership. I favor the latter, and re-writing this passage is not a priority amongst the important amendments needed.

      Delete
    4. JoeAm, I guess you are not aware that this passage renders the proposed RH bills unconstitutional.

      Delete
    5. I'd guess I'm not aware of a lot of things until people more expert than me volunteer to offer enlightenment. I reckon you ought to take your case to Judge Sereno then.

      Delete
    6. You could bet someone will. Pro-life groups exist in the Philippines too. Here in the US, pro-life groups want such a passage to be law - what more in the Philippines - the passage is already there.

      Delete
  6. Joe,

    I'm not sure. You could probably check MLQ's blog and search there. He has quotes from those journal minutes.

    ReplyDelete
    Replies
    1. Yes, he has some interesting historical pieced, I know. Thanks, I'll look there.

      Delete
  7. JoeAm, maybe you can look at the part of the constitution that needs a revision: on the armed forces as protector of the people-an excuse many a coup plotter has invoked in the past.

    DocB

    ReplyDelete
    Replies
    1. Very good, Doc. That's the part I'll look at. Thanks.

      Delete

Please take up comments at the new blog site at joeam.com.

Note: Only a member of this blog may post a comment.