Final Historical Analysis Of The Philippine Constitution

CONSTITUTIONAL HISTORY OF THE PHILIPPINES INTRODUCTION The Republic of the Philippines sits on an archipelago in Southeast Asia and consists of 7,107 islands with a total area of 300,000 square kilometres. It is located at the intersection of several bodies of water: it is bounded by the Pacific Ocean in the north, the South China Sea in the west, the Sulu and Celebes Seas in the south, and the Philippine Sea in the east. Over 90 million people live on the islands, some 12 million of whom live in the capital region, Metro Manila. Most of the people on the islands are of the same racial stock as the Malays and the Indonesians, but a Chinese minority (around 1.5%) make up an influential part of the Philippine economy. There are eight major languages and close to a hundred dialects. CONSTITUTIONAL HISTORY The Philippines had long been used as a trading port in Asia, and this led to their colonization by the Spanish and later by the Americans. The Spanish converted most of the population to Catholicism and the religion remains the dominant one in the country. During the later part of more than 300 years of Spanish rule, nationalist sentiment began to grow among groups of Indios (which was how the Spanish referred to the Filipinos), fuelled in large measure by the writings of national hero Jose Rizal (later executed by the Spanish authorities) and other ilustrados (the Filipino intellegensia). A revolution was launched against Spain and the revolutionaries declared Philippine independence in Kawit, Cavite on June 12, 1898. What became known as the Malolos Congress was convened on September 15, 1898 and the first Philippine Constitution, called the Malolos Constitution, was approved on January 20, 1899, ushering what is called the First Philippine Republic. In the Spanish-American War of 1898, the revolutionaries sided with the Americans, hoping that, with the defeat of Spain, independence would be granted by the US to the Philippines. This, however, did not happen. After Spain ceded (or sold) the islands to the United States in the Treaty of Paris, the US immediately proceeded to brutally suppress the Philippine independence movement. In 1916, the US passed the Jones Act which specified that independence would only be granted upon the formation of a stable democratic government modelled on the American model, not the French model as the previous constitution had been. The US approved a ten-year transition plan in 1934 and drafted a new constitution in 1935. World War II and the Japanese invasion on December 8, 1941, however, interrupted that plan. After heroic Filipino resistance against overwhelming odds finally ended with the fall of Bataan and Corregidor in 1942, a Japanese “republic” was established, in reality, a period of military rule by the Japanese Imperial Army. A new constitution was ratified in 1943 by Filipino collaborators who were called the Kapisanan sa Paglilingkod ng Bagong Pilipinas (Kalibapi). An active guerilla movement continued to resist the

Japanese occupation. The Japanese forces were finally defeated by the Allies in 1944 and this sorry chapter came to a close. Philippine independence was eventually achieved on July 4, 1946. The 1935 Constitution, which featured a political system virtually identical to the American one, became operative. The system called for a President to be elected at large for a 4-year term (subject to one re-election), a bicameral Congress, and an independent Judiciary. INDEPENDENCE TO MARTIAL LAW From the moment of independence, Filipino politics have been plagued by the twin demons of corruption and scandal. Notwithstanding, Presidents Ramon Magsaysay (1953-57), Carlos Garcia (1957-61), and Diosdado Macapagal (1961-65) managed to stabilize the country, implement domestic reforms, diversify the economy, and build Philippine ties not only to the United States, but also to its Asian neighbours. Ferdinand Marcos was elected president in 1965 and was re-elected in 1969, the first president to be so re-elected. Desirous of remaining in power beyond his legal tenure, he declared martial law in 1972, just before the end of his second and last term, citing a growing communist insurgency as its justification. He then manipulated an ongoing Constitutional Convention and caused the drafting of a new constitution – the 1973 Constitution – which allowed him to rule by decree until 1978 when the presidential system of the 1935 Constitution was replaced with a parliamentary one. Under this new system, Marcos held on to power and continued to govern by decree, suppressing democratic institutions and restricting civil freedoms. In 1981, martial law was officially lifted, but Marcos continued to rule by the expedient of being “re-elected” in a farce of an election to a new 6-year term. He continued to suppress dissent and thousands of vocal objectors to his rule either mysteriously disappeared or were incarcerated. Despite economic decline, corruption allowed Marcos and his wife Imelda to live extravagantly, causing resentment domestically and criticism internationally. THE PEOPLE’S CHOICE When opposition leader Benigno Aquino Jr. was assassinated upon returning from exile in 1983, widespread outrage forced Marcos to hold “snap” elections a year early. The election was marked by fraud on the part of Marcos and his supporters but Marcos had himself declared the winner constitutionally, amidst international condemnation and nationwide domestic protests. A small band of military rebels tried to mount a coup, which failed because of its discovery, but this triggered what became internationally celebrated as the “People Power” revolution, when droves of people spilled out onto the streets to protect the rebels, eventually numbering well over a million. Under pressure from the United States, Marcos and his family fled into exile. His election opponent, Benigno Aquino Jr.’s widow Corazon, was installed as president on February 25, 1986.

THE 1987 CONSTITUTION Aquino began her term by repealing many of the Marcos-era regulations that had repressed the people for so long. In March, she issued a unilateral proclamation establishing a provisional constitution. This constitution gave the President broad powers and great authority, but Aquino promised to use them only to restore democracy under a new constitution. This new constitution was drafted in 133 days by an appointed Constitutional Commission of 48 members and ratified by the people in a plebiscite held on February 2, 1987. It was largely modelled on the American Constitution which had so greatly influenced the 1935 Constitution, but it also incorporated Roman, Spanish, and Anglo law. The 1987 Constitution established a representative democracy with power divided among three separate and independent branches of government: the Executive, a bicameral Legislature, and the Judiciary. There were three independent constitutional commissions as well: the Commission on Audit, the Civil Service Commission, and the Commission on Elections. Integrated into the Constitution was a full Bill of Rights, which guaranteed fundamental civil and and political rights, and it provided for free, fair, and periodic elections. In comparison with the weak document that had given Marcos a legal fiction behind which to hide, this Constitution seemed ideal to many Filipinos emerging from 20 years of political repression and oppression. Executive branch The Executive branch is headed by the President and his appointed Cabinet. The President is the head of the state and the chief executive, but he is subject to significant checks from the other branches, especially in times of emergency, which, given the history of the country, was obviously intended to be a safeguard against a repeat of Marcos’ martial law despotism. For example, in cases of national emergency, the President can still declare martial law, but not for a period longer than 60 days. Congress can revoke this decision by a majority vote, or it can also extend it for a period to be determined by the Congress. Additionally, the Supreme Court can review the declaration to decide if there were sufficient facts to justify martial law. The President can grant pardons and amnesty. He is also empowered to make or accept foreign loans. He cannot, however, enter into treaties without the consent of the Senate. The President and Vice-President are elected at large by a direct vote, but the President may only serve one 6-year term. The Cabinet, consisting of the President’s advisers and heads of departments, is appointed by the President and it assists him in his governance functions. Legislative branch The legislative power is vested in a Congress which is divided into two Houses, the Senate and the House of Representatives. The 24 members of the Senate are elected at large by a popular vote and can serve no more than two consecutive 6-year terms. The House is composed of 250 elected members. Most of these Representatives are elected by district for 3-year terms, but 20% of the total membership is chosen in

proportion to party representation. Besides the exclusive power to legislate, one of the most important powers of Congress is the ability to declare war, which it can through a two-thirds vote in both houses. Even the power to legislate, however, is subject to an executive check. The President retains the power to veto a bill passed by both houses, and Congress may override this veto only with a two-thirds vote in both houses. Judicial branch The Court system in the Philippines exercises the judicial power of government and it is made up of a Supreme Court and lower courts created by law. The Supreme Court is a 15-member court appointed by the President without need for confirmation by Congress. Appointment, however, is limited to a list of nominees presented to the President by a constitutionally-specified Judicial and Bar Council. This Council consists of 7 members: the Chief Justice of the Supreme Court, the Secretary of Justice, a representative from Congress, a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The first four serve for four years, the law professor for three, the retired Justice for two, and the private sector representative for one year. The Supreme Court Justices may hear, on appeal, any cases dealing with the constitutionality of any law, treaty, or decree of the government, cases where questions of jurisdiction or judicial error are concerned, or cases where the penalty is sufficiently grave. It may also exercise original jurisdiction over cases involving government or international officials. The Supreme Court also is charged with overseeing the functioning and administration of the lower courts and their personnel. GOVERNMENT OVERSIGHT BODIES The Constitution also establishes three independent Constitutional Commissions. The Civil Service Commission acts as a central agency in charge of government personnel. The Commission on Elections enforces and administers all election laws and regulations to ensure that they are free and fair for all involved. Finally, the Commission on Audit examines all funds, transactions, and property accounts of the government and its agencies. Each of these Commissions is given governing and financial autonomy from the other branches of government to ensure unbiased decision-making. All decisions made by these Commissions are reviewable by the Supreme Court. To further ensure the ethical and lawful functioning of the government, the Constitution also creates an Office of the Ombudsman to investigate complaints regarding public corruption, unlawful behaviour of public officials, and other public misconduct. The Ombudsman can then charge such misbehaving public officials before a special court called the Sandiganbayan. The Ombudsman is also independent administratively and financially from the other branches of government, although the President is vested with the power to appoint the Ombudsman and his Deputies (from a list also prepared by the Judicial and Bar Council) for single 7-year terms. Only the House has the power to initiate impeachment of the President, the members of the Supreme Court, and a few other constitutionally protected public officials like the Ombudsman. The Senate is then supposed to try the impeachment case. Each of these aforementioned independent

agencies was created for the purpose of promoting moral and ethical conduct in government. System of Government under 1987 Constitution Branch

Hierarchy

Appointment

Powers

Removal

Executive (Click to expand) Legislative (Click to expand) Judicial (Click to expand)

Issues and Challenges Issues 



Challenges

Economic development – how to ensure 

Corruption

that economic growth also benefits the 

Poor

poorer classes?

ineffective justice system

Minority rights – how to ensure multi- 

Lack

ethnicity and pluralism for religious and

accountability in public office

ethnic minorities? 





enforcement

of

and

transparency

an and

Polarization between the few who

De-concentration of power – how to

are wealthy and the many who are

reduce the considerable power of the

poor

political and economic elites and give 

Weak

more actual power to the people?

human rights of vulnerable groups

Better

governance

–

how

to

make

nation’s aspirations?

protection

children,

of

the

minorities,

journalists, political activists) 

Spreading growth – how to have more even regional development?

actual

(women,

government more effective in meeting the 

law

Involvement of the military in political questions



Ending the Muslim insurgency in southern Mindanao

Timeline 1542

Spanish claim the islands

1898

Spain cedes the Philippines to the US

1902

US establishes civil government to replace military rule

1935

The Commonwealth of the Philippines is established under President Manuel Quezon and the US promises independence in 10 years

1941

Japanese forces invade the islands

1944

The US retakes the islands

1946

The US grants the new Republic of the Philippines full independence

1965

Ferdinand Marcos becomes President

1969

Marcos is reelected despite allegations of elections fraud, Vietnam protests begin, Muslim separatists begin guerrilla war in the south

1972

Marcos declares martial law, suspends parliaments, arrests opposition leaders, and imposes censorship regulations

1973

New constitution adopted granting Marcos broad powers

1981

Marcos wins reelection, martial law lifted

1983

Opposition leader Benigno Aquino killed as he returns to the Philippines from exile

1986

Marcos opposed in elections by Aquino’s widow Corazon, mass protests of election results in favor of Marcos forces him into exile

11 February New Constitution passed 1987 1992

Aquino replaced as President by defense minister Fidel Ramos

1996

Peace agreement signed with Muslim separatist group

1998

Joseph Estrada, former film star, elected President

January

Impeachment trial against Estrada suspended, leading to mass protests

2000

which replace Estrada with Vice-President Gloria Arroyo

April 2001

Estrada found guilty of stealing more than 80 million dollars of state funds during Presidency, but later pardoned

June 2004

Arroyo elected to Presidency

2005

Arroyo resists attempt to impeach her under allegations of vote-rigging, declares a state of emergency in response to an alleged military coup

2007-2009

Ethnic tensions mount between Islamic separatist groups and Christian majority

June 2010

Beningo “Noynoy” Aquino, son of Corazon Aquino, elected President

CONSTITUTIONAL FRAMEWORK The Philippines has a long history of democratic constitutional development. The Malolos Constitution of 1898-99 reflected the aspirations of educated Filipinos to create a polity as enlightened as any in the world (see The Malolos Constitution and the Treaty of Paris , ch. 1). That first constitution was modeled on those of France, Belgium, and

some of the South American republics. Powers were divided, but the legislature was supreme. A bill of rights guaranteed individual liberties. The church was separated from the state, but this provision was included only after a long debate and passed only by a single vote. The Malolos Constitution was in effect only briefly; United States troops soon installed a colonial government, which remained in effect until the establishment of the Philippine Commonwealth in 1935 (see Commonwealth Politics, 1935-41 , ch. 1). The 1935 constitution, drawn up under the terms of the Tydings-McDuffie Act, which created the Philippine Commonwealth, also served as a basis for an independent Philippine government from 1946 until 1973 (see Independence and Constitutional Government, 1945-72 , ch. 1). The framers of the Commonwealth Constitution were not completely free to choose any type of government they wanted, since their work had to be approved by United States president Franklin D. Roosevelt, but as many were legal scholars familiar with American constitutional law, they produced a document strongly modeled on the United States Constitution. In fact, the 1935 constitution differed from the United States document in only two important respects: Government was unitary rather than federal, local governments being subject to general supervision by the president, and the president could declare an emergency and temporarily exercise near-dictatorial power. This latter provision was used by Marcos after September 1972, when he declared martial law. The 1935 constitution seemed to serve the nation well. It gave the Philippines twenty-six years of stable, constitutional government during a period when a number of other Asian states were succumbing to military dictatorship or communist revolution. By the late 1960s, however, many Filipinos came to believe that the constitution only provided a democratic political cloak for a profoundly oligarchic society. A constitutional convention was called to rewrite the basic law of the land. The delegates selected to rewrite the constitution hoped to retain its democratic essence while deleting parts deemed to be unsuitable relics of the colonial past. They hoped to produce a genuinely Filipino document. But before their work could be completed, Marcos declared martial law and manipulated the constitutional convention to serve his purposes. The 1973 constitution was a deviation from the Philippines' commitment to democratic ideals. Marcos abolished Congress and ruled by presidential decree from September 1972 until 1978, when a parliamentary government with a legislature called the National Assembly replaced the presidential system. But Marcos exercised all the powers of president under the old system plus the powers of prime minister under the new system. When Marcos was driven from office in 1986, the 1973 constitution also was jettisoned. After Aquino came to power, on March 25, 1986, she issued Presidential Proclamation No. 3, which promulgated an interim "Freedom Constitution" that gave Aquino sweeping powers theoretically even greater than those Marcos had enjoyed, although she promised to use her emergency powers only to restore democracy, not to perpetuate herself in power. She claimed that she needed a free hand to restore democracy, revive the economy, gain control of the military, and repatriate some of the national wealth that Marcos and his partners had purloined. Minister of Justice

Neptali Gonzales described the Freedom Constitution as "civilian in character, revolutionary in origin, democratic in essence, and transitory in character." The Freedom Constitution was to remain in effect until a new legislature was convened and a constitutional convention could write a new, democratic constitution to be ratified by national plebiscite. The process took sixteen months. Although many Filipinos thought delegates to the Constitutional Commission should be elected, Aquino appointed them, saying that the Philippines could not afford the time or expense of an election. On May 25, 1986, she selected forty-four names from hundreds suggested by her cabinet and the public. She appointed respected, prominent citizens and, to be on the safe side, prohibited them from running for office for one year after the constitution's ratification. Delegates had the same profile as those who had drawn up the constitutions of 1898 and 1935: they were wealthy and well educated. They represented a range of political stances: some were leftists and some were ardent nationalists, but moderate conservatives held a majority. There were thirty lawyers, including two former Supreme Court justices. A nun, a priest, and a bishop represented the interests of the Catholic Church. Eight commissioners had also served in the aborted constitutional convention of 1972. Five seats on the fifty-member commission were reserved for Marcos supporters, defined as members of Marcos's New Society Movement, and were filled by former Minister of Labor Blas Ople and four associates. One seat was reserved for the Iglesia ni Kristo (Church of Christ), which, however, declined to participate. One of Aquino's appointees, leftist movie producer Lino Brocka, resigned, so the final number of commissioners was forty-eight. The commission divided itself into fourteen committees and began work amidst great public interest, which, however, soon waned. Long, legalistic hearings were sometimes poorly attended. Aquino is known to have intervened to influence only one decision of the commission. She voiced her support of a loophole in the constitution's antinuclear weapons provision that allowed the president to declare that nuclear weapons, if present on United States bases, were "in the national interest." The commissioners quickly abandoned the parliamentary government that Marcos had fancied, and arguments for a unicameral legislature also were given short shrift. Most delegates favored a return to something very much like the 1935 constitution, with numerous symbolic clauses to appease "cause- oriented" groups. The most controversial proposals were those pertaining to the Philippine claim to Sabah, presidential emergency powers, land reform, the rights of labor, the role of foreign investment, and United States military base rights. Special attention focused on proposals to declare Philippine territory a nuclear-free zone. Aquino had asked the Constitutional Commission to complete its work within ninety days, by September 2, 1986. Lengthy public hearings (some in the provinces) and contentious floor debates, however, caused this deadline to be missed. The final version of the Constitution, similar to a "draft proposal" drawn up in June by the University of the Philippines Law School, was presented to Aquino on October 15. The commission had approved it by a vote of forty-four to two.

The constitution, one of the longest in the world, establishes three separate branches of government called departments: executive, legislative, and judicial. A number of independent commissions are mandated: the Commission on Elections and the Commission on Audit are continued from the old constitution, and two others, the Commission on Human Rights and the Commission on Good Government, were formed in reaction to Marcos's abuses. The Commission on Good Government is charged with the task of repossessing ill-gotten wealth acquired during the Marcos regime. Some ambitious Filipino politicians hoped that the new Constitution would invalidate the 1986 presidential election and require that a new election be held. Their hopes were dashed by the "transitory provisions" in Article 17 of the new constitution that confirmed Aquino in office until June 30, 1992. Other officials first elected under the new constitution also were to serve until 1992. Article 3, the bill of rights, contains the same rights found in the United States Constitution (often in identical wording), as well as some additional rights. The exclusionary rule, for example, prohibits illegally gathered evidence from being used at a trial. Other rights include a freedom-of-information clause, the right to form unions, and the requirement that suspects be informed of their right to remain silent. The church and state are separated, but Catholic influence can be seen in parts of the Constitution. An article on the family downplays birth control; another clause directs the state to protect the life of the unborn beginning with conception; and still another clause abolishes the death penalty. Church-owned land also is tax-exempt. The explosive issue of agrarian reform is treated gingerly. The state is explicitly directed to undertake the redistribution of land to those who till it, but "just compensation" must be paid to present owners, and Congress (expected to be dominated by landowners) is given the power to prescribe limits on the amount of land that can be retained. To resolve the controversial issue of United States military bases, the Constitution requires that any future agreement must be in the form of a treaty that is ratified by two-thirds of the Senate and, if the Congress requires, ratified by a majority of the votes cast in a national referendum. Many provisions lend a progressive spirit to the Constitution, but these provisions are symbolic declarations of the framers' hopes and are unenforceable. For example, the state is to make decent housing available to underprivileged citizens. Priority is to be given to the sick, elderly, disabled, women, and children. Wealth and political power are to be diffused for the common good. The state shall maintain honesty and integrity in the public service. To be implemented, all of these declarations of intent required legislation. Aquino scheduled a plebiscite on the new constitution for February 2, 1987. Ratification of the constitution was supported by a loose coalition of centrist parties and by the Catholic Church. The constitution was opposed by both the Communist Party of the Philippines--Marxist Leninist (referred to as the CPP) and the leftist May First Movement (Kilusang Mayo Uno) for three reasons: It was tepid on land reform, it did not absolutely

ban nuclear weapons from Philippine territory, and it offered incentives to foreign investors. But the communists were in disarray after their colossal mistake of boycotting the election that overthrew Marcos, and their objections carried little weight. The constitution faced more serious opposition from the right, led by President Aquino's discontented, now ex-defense minister, Juan Ponce Enrile, who reassembled elements of the old Nacionalista Party to campaign for a no vote to protest what he called the "Aquino dictatorship." Aquino toured the country campaigning for a yes vote, trading heavily on her enormous personal prestige. The referendum was judged by most observers to turn more on Aquino's popularity than on the actual merits of the Constitution, which few people had read. Her slogan was "Yes to Cory, Yes to Country, Yes to Democracy, and Yes to the Constitution." Aquino also showed that she was familiar with traditional Filipino pork-barrel politics, promising voters in Bicol 1,061 new classrooms "as a sign of my gratitude" if they voted yes. The plebiscite was fairly conducted and orderly. An overwhelming three-to-one vote approved of the Constitution, confirmed Aquino in office until 1992, and dealt a stunning defeat to her critics. Above all else the victory indicated a vote for stability in the midst of turmoil. There was only one ominous note--a majority of the military voted against the referendum. Aquino proclaimed the new Constitution in effect on February 11, 1987, and made all members of the military swear loyalty to it.