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Philippines 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.
Data as of June 1991
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