The REAL Problem With the 1987 Philippine Constitution Nobody Wants to Discuss

Once again talk of Cha-cha, or Charter Change, is in the air. Why is this a perennial topic amongst Philippine politicians? Surely the 1987 Constitution is wonderful and any change would be a betrayal of EDSA People Power, right? Wrong. Senate President Zubiri gives us some hints as to the problem plaguing the 1987 Constitution. 

https://newsinfo.inquirer.net/1889682/senate-launches-own-bid-to-amend-constitution

Senate President Juan Miguel Zubiri on Monday led the filing of a resolution rewriting specific economic provisions of the 1987 Constitution, amid the controversy over the decades-old charter change agenda being revived once again under President Marcos’ administration.

“This is to avert a constitutional crisis between the House of Representatives and the Senate,” Zubiri told reporters after filing Resolution of Both Houses No. 6.

Speaker Martin Romualdez expressed his “unwavering support” for the Senate’s initiative. (See related story on this page.)According to Zubiri, the resolution resulted from his consultations with the House leader and a separate meeting with Mr. Marcos himself.

The Senate resolution is limited to “three topics on economic provisions. We are doing this to preserve the bicameralism of [Congress],” he said.

“[This is] to make it clear that there are no other planned provisions or amendments,” emphasized the Senate leader.

Under the resolution, the proposed constitutional changes should only cover Section 11 of Article XII (National Economy and Patrimony), which requires 60-percent Filipino ownership of public utilities; Section 4 (2) of Article XIV (Education), which requires 60-percent Filipino ownership of educational institutions; and Section 11 (2) of Article XVI (General Provisions), which requires 70-percent Filipino ownership of any enterprise in the advertising industry.

“The nation’s economic policy must be reframed under the demands of this increasingly globalized age while still protecting the general policy of Filipino-first that guides the economic provisions of the Constitution,” read a portion of the resolution.

Can you see what is wrong here? The problem is that there are economic provisions in the Constitution. There should not be ANY economic provisions in the Constitution. Zubiri's statement illustrates why this is the case.

"The nation’s economic policy must be reframed under the demands of this increasingly globalized age"

Economic policy can be and at times must be changed. But a constituion is not about economic policy. It is about how an organization, in this case the government, is to function. 

A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.

https://en.wikipedia.org/wiki/Constitution

The functions of the government should NOT change except under extreme necessity. The Constitution should only delineate the powers and functions of the executive, legislative, and judicial branches of government. This is exactly what the 1987 Philippine Constitution DOES NOT DO. Only the Supreme Court, Commission on Elections, Ombudsman, and Commission on Human Rights have specific powers and functions listed. 

Article 6 describes the Legislative Department in minute detail over 32 sections.

Section 1 says the legislative power shall be vested in a Congress composed of a Senate and a House of Representatives. 

Sections 2-15 describes the qualifications of  members of the Congress, tells the time of their election, and grants limited immunity from prosecution during their terms

Sections 16-22 tells how the Senate and House are to govern themselves and describes the manner in which cabinet heads are to appear before the Congress.

Section 23 says the Congress has the sole power to declare a state of war and authorize the President to enact needed restrictions during war time. 

Sections 24-27 describes how bills are to be written and voted upon. 

Section 28 says the Congress must "evolve a progressive system of taxation."

Section 29 says describes how money from the public treasury is to be employed.

Section 30 says the Congress cannot pass a law increasing the appellate jurisdiction of the Supreme Court. 

 Section 31 forbids the granting to titles of nobility. 

Section 32 says the Congress must develop a system "whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body."

At NO POINT are the powers of the Legislature described. Compare the 1987 Philippine Constitution to  Article 1 Section 8 of the United States Constitution.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

https://www.archives.gov/founding-docs/constitution-transcript

See the difference? Take these two provisions for instance:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

While the 1987 Philippine Constitution mentions the military nothing whatever is said about the Congress' power to maintain them. In fact their maintenance is not mentioned at all but is apparently assumed with the Armed Forces, in Article 2, being called the protecter of the people.

Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory. 

As far as economic policy goes the United States Constitution only says the Congress shall have the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Yet in the 1987 Philippine Constitution we are met with Article 12 which spells out in great detail the nation's economic policy. While the U.S. Constitution tasks the Legislature with the power

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

The Philippine Constitution devolves that power to an independent Central bank. From Article 12:

Section 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as may be provided by law over the operations of finance companies and other institutions performing similar functions. 

Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority. 

Section 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.

What a vast difference between the teacher and the student, that is the USA and the Philippines. The Founding Fathers of the USA generally abhorred the idea of a central bank and would be appalled at not only the 1987 Philippine Constitution but also the Federal Reserve of the USA.

There are also many nebulous and undefined phrases and words in the 1987 Philippine Constitution. This includes: patriotism, progressive system of taxation, sovereignty resides in the people, and prescribed by law. 

The phrase "prescribed by law" appears eleven times in the 1987 Philippine Constitution which is rather odd because this document is setting out detailed policy which itself should be "prescribed by law." That is exactly how the Philippines has wound up in this predicament of having an unchangeable economic policy that is at odds with the current global situation.

The Legislature should only be given the broad power to regulate commerce and then it is up to the Congress to fine tune those regulations. 

To sum up here the REAL problem with the 1987 Philippine Constitution which nobody wants to discuss is that it is not specific enough in detailing the powers of Congress and it has policies both economic and social which simply do not belong. Take this policy from Article 13 on Social Justice and Human Rights:

Section 9. The State shall, by law, and for the common good, undertake, in cooperation with the private sector, a continuing program of urban land reform and housing which will make available at affordable cost, decent housing and basic services to under-privileged and homeless citizens in urban centers and resettlement areas. It shall also promote adequate employment opportunities to such citizens. In the implementation of such program the State shall respect the rights of small property owners.

According to the 1987 Philippine Constitution the State is required by law to make sure everyone can afford a house. But what law? The Constitution is not that law. The law to fulfill this mandate is something that must be passed by Congress and approved by the President. The Constitution is assuming a law that does not even exist. 

The 1987 Philippine Constitution is flawed because it says too much one way and not enough the other way. I compared the Philippine Constitution with the U.S. Constitution because it is the U.S. that taught the Philippines the basics of how to operate a Constitutional Republic. In the USA less government with greater freedoms for the people is the operating philosophy while the opposite is true for the Philippines which has more government with lip service to the rights of the people. Amending the Constitution, flawed though it is, should not be done lightly. But, once again, the Philippine people, at least the short-sighted men who wrote this document, have only themselves to blame for this mess.