Processes
A month after becoming President, Cory promulgated a provisional charter, named the Freedom Constitution, which promised ‘the transition to government under a New Constitution in the shortest time possible’; it also promised that Cory would appoint a commission to draft a new constitution within 60 days.[707] Reflecting the importance Cory gave to this promise, she took less than a month to assemble the 1986 Constitutional Commission (ConCom).[708]
How the Constitution could embody people power was the issue that filled the first three weeks of the ConCom’s sessions.
The commissioners agreed upon two ways. The first was by periodically consulting the public about their constitutional preferences as the ConCom went about its business. The second (discussed in section III) was by introducing constitutional innovations designed to make politics more representative of a wider swath of the population. Both made people power an integral part of not only the process of constitution-making, but also the substance of constitutional design.The first way was mandated by Cory herself. Both the Freedom Constitution and the Law Governing the Constitutional Commission of 1986 (‘1986 ConCom Law’) ordered the Commission to ‘conduct public hearings to insure that the people will have adequate participation in the formulation of the New Constitution’.[709] This was partly designed to parry anticipated criticism that the Commissioners were all handpicked by Cory, not elected by the citizenry.
Despite the revolutionary beginnings of the new regime, Filipino political culture required Cory to anchor its legitimacy upon legality and constitutionalism.[710] And precisely because of her regime’s revolutionary beginnings, Cory needed to demonstrate that such constitutional anchor was a genuine product of popular sovereignty.[711] As Cory herself remarked, the Philippines will again become ‘a full-blown democratic republic’ only after the ‘people’ have been presented ‘a constitutional draft...
for their sovereign acceptance or rejection’.[712]An elected constitutional convention would have been more democratic, but Cory had good pragmatic reasons to prefer an appointed constitutional commission. Holding elections for a constitutional convention would have been expensive, time-consuming, and destabilising, and a large elected convention would be slower, more expensive, and less efficient than a small handpicked commission.[713] Fortunately for her, the Philippines did not have a strong tradition of electing constitutional conventions.[714] She could also point to respected foreign examples of appointive constitution-making bodies - for example the Philadelphia Convention.[715] Besides, Philippine constitutionalism required any proposed charter to be ratified in a plebiscite (even during the dictatorship the 1973 Constitution and its amendments were all officially claimed to have been popularly ratified);[716] the resulting Constitution would thus in any case still be democratic, since it would take effect only upon a majority vote of the people.[717] Hence the Freedom Constitution called for an appointive Constitutional Commission whose members Cory would choose after consulting the country's various sectors.[718] The names of the estimated 1,500 to 2,000 nominees and their endorsers were published in leading newspapers for public feedback.[719] The 1986 ConCom Law specified that the ConCom would comprise not only women and men of nationwide renown, but also representatives both from the country's different regions and from its various sectors such as farmers, fisherfolk, workers, students, professionals, entrepreneurs, soldiers, teachers, ethnic minorities, etc.[720]
What matters in the end was not how the Constitution's drafters were chosen, but how the people would vote in the plebiscite.[721] And what would greatly help the draft charter's ratification was a widespread sense that it was a reflection, not a betrayal, of the revolutionary spirit of people power.
Cory thus took care that Filipinos would regard the ConCom (as they generally did) as broadly representative of all interests, stripes, and colors by naming delegates from the ranks of the political opposition as well as the non-communist Left.[722] Thirty of the 48 Commissioners were representatives of the various sectors: the clergy, professionals, Muslims, the academe, the media, the youth, farmers, business, the military, the workers, etc.[723] Twelve Commissioners had also been previously elected as delegates to the 1971 Philippine Constitutional Convention.[724] Moreover, the Commission’s sessions were declared open to the public,[725] and possibly even televised.[726] The requirement that the Commission should conduct public hearings was part of these moves to ensure that the citizenry would regard the Constitution as a genuine product of people power.Despite these, eight in ten Filipinos surveyed in May 1986 stated that the drafters of the promised new constitution should have been elected, not appointed.[727] And the commissioners were vocally mindful of the perceived democratic deficit of their appointive mandate.[728] They were also vocally mindful of concerns that they were insufficiently representative of all social sectors.[729] Commissioner Ponciano Bennagen, for example, recently recounted that his appointment to represent, as an anthropologist, indigenous cultural communities across the archipelago was borne out of concerns that appointing an indigenous representative from, say, the Cordilleras, might invite protests from indigenous communities in other regions.[730] Only six commissioners were women.[731] The peasantry, which comprised the bulk of the population, had only Commissioner Jaime Tadeo to represent them in the 48-member Commission.[732]
Tadeo said that the ConCom could strengthen its mandate only by first consulting the citizenry, and listening and learning from them, before they began drafting the Constitution.[733] ‘Unless public hearings are held or unless the people are able to speak and write this Constitution with us’, said another commissioner, ‘I think this Constitution will not gain the broad acceptance that it deserves’;[734] consulting the citizenry would ‘make this nation aware that we have empowered the people to determine the solutions to their real problems’.[735] Another commissioner argued that ‘the hope and desire of the people to be co-authors’ of the promised constitution made it ‘almost like our duty to listen to them before we speak’.[736] Still another said that the ConCom had ‘the unmistakable mandate’ to ensure that ‘not a single word in this new Constitution will be adopted without consulting the people’.[737] As one commissioner pithily summed it up, there was ‘an overriding concern among all Members for a wider participation of the people so that they, the speakers, in this Constitution that we will draft, could hear their own voices’.[738]
Naturally the very first motion introduced to the ConCom was for it to ‘immediately conduct public hearings’[739] The commissioner who introduced the initial motion thought that it was enough to hold public hearings only in Metro Manila.[740] Another countered that the 1986 ConCom Law contemplated nationwide public hearings.[741] Commissioner Christian Monsod suggested to enlist the many organisations who were willing to help’[742] Another commissioner shared that the Bishops-Businessmen Conference had already been conducting national consultations on a new charter, but voiced the need to ensure that the poor in the provinces would attend these consultations.
Public hearings were being held ‘to hear the masses of our people who are generally not heard and not informed', she said; ‘we do not want only the elite’[743] One commissioner added that he and another commissioner were then presently partaking in nationwide public hearings that involved around 150 organisations. It would be better if the ConCom itself were to conduct these hearings, he said, but it did not have the necessary resources. If, say, NAMFREL or the Bishop-Businessmen Conference, who had such resources, were willing to help, then why not tap them?[744] Within a fortnight Monsod, as NAMFREL chief, officially informed the ConCom that NAMFREL chapters nationwide would be ready to help;[745] other groups soon followed suit.[746]Commissioner Gregorio Tingson suggested that the ConCom request Cory to exempt the countryside from paying postage for mail sent to commissioners. This idea of franking privileges led to a healthy brainstorming of other ways to encourage more people to participate in the constitution-making process. A commissioner moved for the ConCom to request Cory to publicly urge all sorts of citizens and their groups to submit constitutional proposals to it.[747] Another suggested that the ConCom request civic, professional, religious, and other organisations with a nationwide reach to promptly conduct public hearings and report their findings to it. Tingson added that franking privileges should also be extended not only to these groups for this purpose, but to all communications sent to the ConCom.[748] (Cory promptly obliged by authorising the sending of all mail by and to the Commission under the franking privilege.[749]) One commissioner suggested that the ConCom hold its plenary sessions on mornings instead of afternoons (which it eventually did) so that the media could better report its daily discussions.[750] Some also supported a proposed change of venue of the ConCom's sessions (which in the end was not made[751]) that would have made it cheaper for more people to attend.[752] These sorts of proposals went on up to the last day of the sessions' third week, in which a commissioner formally proposed the airing of a nationwide radio and teleconference between commissioners and citizens before the ConCom held regional public hearings.[753]
Despite an early controversy following the call for a final vote on the Preamble before the start of public consultations,[754] the intent to involve as many citizens as possible in the Constitution's drafting was kept alive until the end. Four months later, in the ConCom's last week of sessions, a commissioner would boast that
more than a hundred public hearings had been held not only in Metro Manila but throughout the country - from Laoag in the north to Basilan in the south.
One thousand one hundred three communications were sent directly to the Commission.[755]In sum, as the 1986 ConCom Law had mandated, ‘people's participation was consciously included all throughout the processes of the ConCom'.[756] A loose grouping of the younger, more progressive commissioners (the media dubbed them the ‘Nationalist Bloc') shared a pool of researchers and legal consultants who constantly kept in touch with grassroots groups.[757] Lobby groups - including business and people's organisations, delegations of indigenous tribes, right-to-life advocates, and worker groups - attended the plenary sessions. Others - including feminist organisations, religious groups, and even grade-schoolers - opted to rally outside. Some, like the peasantry, both applauded their advocates inside the session hall and held large rallies outside of it. Various sectors attended the public hearings.[758] Filipinos abroad also participated by sending some of the hundreds of letters received daily by the commissioners.[759] The pressures that these various groups placed on both the ConCom and its members proved crucial. Indeed, the ‘pressure of public opinion' not only prevented the ConCom from imploding following a widely reported walkout of five commissioners, but also ‘facilitated the passage of certain progressive provisions on education and social justice’.[760]
The ConCom, whose sessions ran from 2 June to 15 October 1986, followed the majority principle.[761] This led to a dramatic finish over the pivotal decision whether the legislature should be unicameral (for all legislative power to be placed in a single law-making body) or bicameral (for the law-making body to consist of two houses). The vote was tied at 22-22 when Commissioner Bernardo Villegas, last in the alphabetical list, cast the winning vote for bicameralism.[762]
Juan Ponce Enrile campaigned hard against the ratification of the 1987 Constitution.[763] The Constitution simply takes it as a fact that Cory had won the 1986 presidential election,[764] and the campaign for ratification was also consequently a campaign to confirm Cory's claim to the presidency.[765] Enrile, on the other hand, claimed that his leadership during People Power gave him the right to an equal share of power with Cory.[766]
Enrile had jumpstarted the Revolution the year before by heading the military rebellion which popular support had turned into People Power.
At that time, as he pleaded with Filipinos to troop to EDSA to form a shield of human bodies around his small group of rebel soldiers, he was clear in declaring over the airwaves that Marcos had cheated and that he believed in his heart that Cory had won.[767] But Cory had since fired him as her defence minister following a foiled attempt at a coup led by his rebel troops.[768] To regain power, Enrile decided to play upon the widespread belief among the soldiers, publicly proclaimed by his loyal followers, that it was uncertain who had really won the Marcos versus Cory presidential elections. This uncertainty was bolstering Enrile's claim to an equal share of power.[769] He also found unlikely allies in the radical Left, who believed that Cory had ‘merely reestablished an elitist democracy’[770]Less than three weeks before the plebiscite, on 14 January 1987, Enrile attended the foundation meeting of the biggest coalition formed to campaign for a ‘No' vote to the charter and signed its manifesto. He then travelled from province to province to speak bluntly against the draft Constitution, earning him the mantle of de facto leader to the ‘No' campaign.[771] His long tenure as Marcos's defence minister helped him convince the country's soldiers. More than half of the military voted ‘No' to the Constitution and only around one in three voted ‘Yes'.[772]
Unfortunately for Enrile, more than six in ten Filipinos thought that Cory was ‘keeping promises she made to the people' - promises which were codified in the Constitution.[773] Cory also portrayed ratification as a re-dedication to the Revolution: she proclaimed that the Constitution will ‘serve as the framework of the house of democracy that we must build to protect the revolution’.[774] The ‘Yes' campaign to the Constitution was supported by all the groups which had formed the People Power coalition against Marcos. One editorial claimed that ‘the most zealous campaigners for the Cory Constitution [we]re not concerned with the Constitution at all’, but were ‘really working... a vote of confidence for Corazon Aquino - or a clear repudiation of the Marcos dictatorship and the Marcos Constitution’[775] But it also acknowledged that ‘cause-oriented groups' seriously debated ‘the proposed Charter's essential character’[776] Further, although an October 1986 public opinion survey reported that only one in ten respondents had ‘managed to attend any meeting to discuss the proposed Constitution’ ‘a majority (57 per cent) of respondents expressed their interest in the draft Constitution by following the process of its creation' and in fact expressed firm preferences on many of its more prominent design features.[777] The Constitution's drafters also strived to ensure that the People took the text of the Constitution seriously during the ratification campaign:
A period of nationwide campaign followed, with the Commissioners going around the country for educational campaigns, media appearances, convocations and for a, speaking engagements, etc. to convince people to vote for the draft charter. During the campaign, the Commissioners made sure that the draft document was translated into different languages used in the country and popularized into comics as well. Nolledo noted that the 1987 Constitution was ‘the most widely and exhaustively discussed document in our history’ with more than twenty million copies of the draft distributed in ‘all nooks and corners of the Republic of the Philippines’[778]
The campaign commenced with Cory's strong endorsement of the charter on 15 October 1986, at the formal ceremony where the Constitutional Commission handed her the document. At the same time, Cory's cabinet members, close relatives, and other pro-Cory personalities formed Lakas ng Bansa (LABAN), which would become the official coordinator of pro-ratification rallies. The following month, in early November, a broad coalition of liberal, Christian, and social democrats was formed. The Catholic Bishops Conference of the Philippines, too, issued a pastoral letter late November which urged Roman Catholics to vote ‘Yes' - stating that the charter was ‘consistent with the teachings of the gospel’.[779] The National Council of Churches in the Philippines also endorsed ratification. Also active in campaigning for ‘Yes' was ‘[a] host of organizations of varying degrees of formality, size, and purpose’[780] These organisations were backed by different church, worker, women, youth, occupational, and expatriate groups.[781] Adding numbers to the pro-ratification campaign was the ‘critical yes' vote. The communist- backed Partido ng Bayan (PnB), after first saying that it would campaign against the charter, later changed its mind and instead campaigned for a ‘critical yes.' The Bagong AlyansangMakabayan (BAYAN), a broad umbrella coalition of over 1,000 cause-oriented groups, also campaigned for a ‘critical yes' vote.[782]
The broad support for ratification frustrated Enrile's prediction that the charter would be overwhelmingly defeated.[783] Instead, more than seven in ten Filipinos voted ‘Yes' to the Constitution.[784] With this resounding approval of the charter, Cory ‘finally won the legitimacy to weather future coups’[785] In particular, ratification helped ‘consolidate her authority over the military' by ‘clearly giving her government a popular mandate to govern' and ‘in particular the formal presidential authority which the flawed presidential election of 1986 formally denied’[786] With the Constitution's ratification, Cory's political opponents ‘can no longer ascribe illegitimacy to her government or her position, nor can they credibly advance the theory of coalition government which makes her only one more, equal partner in a political duumvirate or triumvirate after the February revolution’[787]
Even Enrile, after the ratification, publicly conceded as much, ‘We accept the will of the people, he said.[788]
III.