FREQUENTLY REWRITTEN CONSTITUTION

By Philip M. Lustre Jr. 

Because of initiatives to amend the 1987 Constitution, we could not help but recall the two kinds of constitution: the written and the unwritten.

The British Constitution is an example of the unwritten constitution. This fundamental is essentially a product of legal customs and traditions handed down from one generation to another generation. Its normal for any British lawyer to cite laws that were enacted several centuries ago.

The US Constitution is a prime example of the written constitution. Its Founding Fathers saw the necessity to put its fundamental laws in the written form. It serves as the social contract between the governors and the governed.

The Philippines had the Malolos Constitution of 1898 as its first constitution. But it was not given a chance to be implemented completely because the newly born republic was immediately at war with the United States, another colonial power that replaced the Spanish colonial rule.

Being a former US colony and a much younger nation in the community of nations, the Philippines has adopted the 1935 Constitution as its second charter.

The Filipino people ratified it in 1935. It became operational when the Philippines became a commonwealth, or autonomous, state in 1935 in preparation for self-rule, or independence, ten years later.

The 1935 Constitution had remained the fundamental charter after the Philippines has gained independence from the US in 1946.

Because of the colonial nature of the 1935 Constitution, the government of Ferdinand Marcos (he was not yet the dictator then) initiated in 1971 a constitutional convention to draft a new constitution to reflect the republican character of the Philippines.

But Marcos declared martial law in 1972 and manipulated the convention to come out with a constitution to serve as the blueprint of the martial law government, or the Marcos dictatorship.

Marcos did everything to manipulate the ratification of the 1973 Constitution. In the Javellana v. Executive Secretary case, the Supreme Court, then under the respected Chief Justice Roberto Concepcion, ruled that the 1973 Constitution was not properly ratified by the Filipino people under the established norms of ratifying constitutions.

It was declared to have been ratified under fraudulent circumstances. It only became operational when somebody in the Supreme Court inserted the all encompassing phrase that “the 1973 Constitution has no judicial obstacles to an effective and operational."

The 1973 Constitution was amended six times to insert provisions to strengthen the one-man rule of Marcos.

Because of frequent pro-Marcos those amendments, wags claimed that a third kind of constitution has come into existence: the frequently rewritten constitution.

The 1973 Constitution was totally scrapped when the near bloodless 1986 EDSA People Revolution took place and ousted Marcos from power. Initially, Cory Aquino had a revolutionary government and it operated under the "Freedom Constitution" drafted by the group of the late Neptali Gonzales, who was Mrs. Aquino's justice secretary.

The Freedom Constitution was replaced by the present 1987 Constitution, which the Filipino people have overwhelmingly ratified on Feb. 7, 1987. Incidentally, the 1987 Constitution was crafted by a commission composed of 50 persons, whom Mrs. Aquino handpicked to draft it. 

Over the years, the 1987 Constitution has faced challenged for various groups to replace or amend it. But those initiatives were largely unsuccessful. Now, it faces what could be regarded the biggest challenge in its existence as the country’s basic law.

Pro-Duterte lawmakers want to put provisions to convert the country’s unitary structure into a federal state. This has produced combined feelings of misgivings, anxiety, and fear because the idea of a federal state is largely untested or even unknown in Philippine context.

Certain political quarters have been saying that a federal state could either lead to the strengthening of political dynasties, or it trigger the rise of a new dictatorship. This fear has not been addressed by the current government. But this is another story.