A Universalist History of the 1987 Philippine Constitution (II)
| Autor | Diane Desierto |
| Páginas | 427-484 |
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Against the previous discussion in Part I of this Article in Volume 10 of the Historia Constitucional of ideological currents in the history of Philippine constitutionalism, I now approach the universalist characterization of the 1987 Philippine Constitution from three areas. First, from aspects of its constitutional design, I submit that the plethora of institutional checks against the arbitrariness and abusive potential of executive power (e.g. expanded judicial review and rule-making powers of the Supreme Court; impeachment mechanisms and the establishment of special constitutional offices such as the Office of the Ombudsman and the Commission on Human Rights; provision for direct amendment of the Constitution by the people; partylist representation, multiparty system and the prohibition against political dynasties; among others) comprises a set of more direct avenues that empowers Filipino individuals to make and legitimate their political judgments in Philippine public order. These institutional checks were purposely devised by the Constitutional Commissioners with the end in view of restoring the constitutional primacy of the Filipino individual through his participation in popular sovereignty.
Second, the orientation of the 1987 Constitution shows a strong entrenchment of a rights-culture that appears more universalist in character than in previous constitutional epochs. At the time of drafting of the 1987 Constitution, active Philippine participation in the international legal order ---- as one of the original signatories of the United Nations Charter, and for having ratified all the major human rights treaties and signed the Universal Declaration of Human Rights --- had already informed our conceptions of human rights. As seen from Philippine legal history, the concept of rights inherent to the individual by virtue of his/her basic humanity was a staple in our constitutional rights discourse. Given the atrocities of strongman rule in the Marcos dictatorship, the Constitutional Commissioners were assiduous in ensuring the textualization of ever more numerous individual rights. More importantly, however, the Constitutional
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Commissioners had the foresight to recognize that international legal principles on individual human rights were not static normative conceptions. Maintaining the avenue of incorporation, (alongside a pacific internationalist foreign policy on use of force) would not only ensure that the full corpus of the Filipino individual’s human rights would be accorded constitutional protection, but that the Philippine government would dynamically recognize its evolving responsibilities as a sovereign independent state in the international legal order.
Finally, the philosophy of the 1987 Constitution is quaintly described by the Constitutional Commissioners themselves as "pro-life, pro-people, pro-poor, pro-Filipino, and anti-dictatorship". These are aspirations towards realizing (universalist) fundamental human dignity values --- first articulated by the 1899 Malolos Congress, but never motivating constitutional philosophy as strongly until the present 1987 Constitution.
There are many critics of the 1987 Constitution whose arguments swing from a pendulum.4On one end (which I prefer to call the ‘weak state’ objection), critique veers to the perceived excesses of diluting executive power, and the political instability caused or fomented by this constitutional policy. And on the other (the ‘mob rule’ objection), critique is leveled at ‘entrusting’ Filipino individual rationality with ‘too much democracy’ or ‘too many rights’ that result in exercises detrimental to ‘responsible citizenship’. Each critique has its own claims to validity, the evaluation of which would be beyond the scope of this work. Nonetheless, while the universalist response to these critiques could be the subject of separate research altogether, my universalist analysis of various executive particularist acts elsewhere5will contribute to a broader understanding of the actual persuasive value of normative assumptions in both objections on the supposed ‘weak state’ and ‘mob rule’ tendencies created by the 1987 Constitution.
But we must begin the evaluation of those critiques somewhere. I submit that a keener understanding of our constitutional orientation, design, and philosophy is a useful beginning for appreciating (and responding) to the ‘weak state’ and ‘mob rule’ critiques. Thus, the important descriptive result for now is the apparent constitutionalization of the universalist vision of a public law conception that has moved towards cosmopolitan democratic public order --- and ultimately, to
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one that is governed by the rationality of fundamental human dignity values. It is a more complete approximation of universalism than previous constitutional epochs.6
The 1987 Constitution introduced various institutional and popular sovereignty mechanisms which Filipino individuals could harness to check the excesses of executive power. As shown in the records of the Constitutional Commission and affirmed by subsequent jurisprudential practice, these mechanisms were purposely detailed in the 1987 Constitution as forms of executive restraint:
Article VIII, Section 1 of the 1987 Constitution is a broader formulation of the power of judicial review than in previous Philippine Constitutions:
"Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."
Unlike the United States Constitution which does not expressly textualize judicial review (first explained in the leading case of Marbury v. Madison which elicited the principle of judicial review from "particular phraseology" of the US Constitution that was "supposed to be essential to all written constitutions"), Article VIII, Section 1 of the 1987 Constitution expressly establishes judicial review in the Philippine constitutional system. The Philippine Supreme Court dates the initial exercise of judicial review (through invalidation of constitutionally infirm legislative acts) way back to 1902, stating that the executive and legislative branches effectively acknowledged the power of judicial review in provisions of the Civil Code that mandated consistency of legislative, administrative, and executive acts with the Constitution as a requirement for legality.7This provision of the 1987
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Constitution expanded the certiorari jurisdiction of the Supreme Court to include cases of "grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." As noted by the Court, the rationale for this expansion is attributable to the experience of martial law under the Marcos dictatorship. Former Chief Justice and 1986 Constitutional Commissioner Roberto Concepcion proposed the expansion to avoid repetition of the Court’s experience in failing to resolve crucial human rights cases due to the obstacle of the political question doctrine:
"Fellow Members of this Commission, this is actually a product of our experience during martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime was marred considerably by the circumstance that in a number of cases against the government, which then had no legal defense at all, the solicitor general set up the defense of political questions and got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters related to the operation and effect of martial law failed because the government set up the defense of political question. And the Supreme Court said: ‘Well, since it is political, we have no authority to pass upon it’. The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further violations thereof during the martial law regime...
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to...
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