Substance
Section I discussed how the 1986 People Power Revolution was the culmination of a radical reinterpretation of democracy rooted in the Christian idea that political participation is an integral aspect of human dignity.
This idea contested the old patronage politics of exchanging votes for piecemeal gains. The 1987 Constitution, which as section II shows was drafted and ratified in the people power spirit of widescale public participation, was understood by its framers and ratifiers as enshrining the right of every citizen to partake in politics.[789] The Constitution was designed to vest in citizen groups ‘a legitimate share of political power for them to participate' in public policy-making, including constitutional construction.[790] The framers followed Cory's exhortation to leave the Constitution ‘open-ended' by giving ‘Future Filipinos and their legislatures and supreme courts... the widest latitude of thought and action' to flesh out the Constitution over time.[791]The 1987 Constitution employs two strategies to open up this open-ended process to most Filipinos: wider representation and direct participation. The Constitution widens representation primarily by reserving a portion of the House of Representatives to national, regional, and sectoral parties.[792] It also mandates sectoral representation in local legislative bodies, non-governmental organisation (NGO)-representation in regional development councils, indigenous representation in consultative bodies for indigenous-cultural-community concerns, and multi-sectoral representation in consultative commissions for chartering the autonomous regions.[793] It also facilitates indirect policy-making through the decentralisation of national governmental powers in favour of local governments, autonomous regions, indigenous cultural communities, etc.[794] The Constitution enables direct participation by giving the people the elective powers of initiative, referendum, and recall.[795] Most importantly, it politically empowers the different kinds of citizens and their groups which embodied people power: workers, farmers, the urban and rural poor, people's organisations, non-governmental, community-based, or sectoral organisations, etc.[796]
Citizen participation in democratic decision-making was considered critical in pursuing the many socio-economic rights and goals the Constitution lists, mainly in articles II (Declaration of Principles and Policies), XII (National Economy and Patrimony), and XII (Social Justice and Human Rights).
Commissioner Joaquin Bernas, during the ConCom deliberations, explained that ‘the socio-economic goals' listed are ‘necessarily. not self-executory. To put them into effect, we have to depend on Congress'.[797] Hence the Constitution contains numerous by-law clauses which give Congress the power to determine, by statute, the limits or boundaries of various rights.[798] These include not only socio-economic[799] but also civil[800] and political[801] rights.‘Never again another President Marcos!' is another structural theme explaining many of the 1987 Constitution's clauses.[802] For example, the Supreme Court's subservience to the Marcos dictatorship loomed large over the ConCom's deliberations on the Judiciary. The Court had validated the constitutional plebiscites and referenda Marcos used to justify his dismantling of Philippine democracy.[803] Often, too, the Court had sacrificed civil liberties at the altar of national emergency.[804] On account of Marcos's martial law proclamation, for example, the Court ruled that accused subversives can be militarily arrested and detained without a judicial warrant and then tried by a military commission.[805] Thus, most of the 1987 Constitution's design innovations on the Judiciary were intended to ‘institutionalize safeguards against a repetition of the past' - specifically the martial-law past.[806] For example, under the 1935 and 1973 Constitutions, at least two-thirds of all the members of the Supreme Court were required to declare a law or treaty unconstitutional.[807] This supermajority requirement helped pave the way for the Marcos dictatorship, as four of the ten Justices (there was one vacancy) ‘seemed ready to approve all acts of the President under martial law'.[808] Now only a simple majority of the Justices who deliberated and voted on the issues is needed to decide a case, including judicial review cases - although the concurrence of at least three Justices is the minimum for deciding Division cases.[809]
Alluding to the Supreme Court's lamentable record during the Marcos years, ConCom President Cecilia Munoz Palma proudly proclaimed that the 1987 Constitution ‘clothes the judicial branch of government with the mantle of independence in order that it may attain once more its lost prestige and regain the faith of the Filipino people'.[810] The framers' main design strategy was to strengthen judicial independence ‘by insulating the processes of choosing, compensating, correcting and even castigating members of the Judiciary from the influence of partisan politics'.[811] For example, judges and Justices hold office during good behaviour until they become either 70 years old or incapacitated to discharge the duties of their office.[812] No law reorganising the Judiciary may undermine this security of tenure of judges and Judges.[813] This last rule was added to prevent what Marcos did in 1980, when, ‘under the guise of a judicial reorganization... to attain economy', the dictator was able to replace uncooperative judges with lackeys.[814]
The 1987 Constitution expands judicial power to include ‘the duty.
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'.[815] This addition ‘limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide'.[816] It was a response to the Supreme Court's frequent resort to the political question doctrine during the Marcos years. The framers were ‘worried about the inaction of the Supreme Court over some of the most important cases' during that time.[817] The framers specifically wanted to place matters of ‘national interest, national welfare, national security, national defense' (which had been ‘always the main argument of Marcos' when he invoked the political question doctrine) within the jurisdiction of courts.[818] ‘With this broad definition of judicial power, explained Munoz Palma, the Supreme Court ‘can no longer evade adjudicating on the validity of executive or legislative action by claiming that the issue is a political question’.[819] Or, as Commissioner Serafin Guingona vividly put it, the Supreme Court can no longer,like Pilate, wash its hands from its responsibility of reviewing acts of public officials and offices, as the Supreme Court had done during the Marcos administration where vital issues that concerned civil liberties and human rights were summarily left unresolved on the ground that they were ‘political questions’[820]
Constitutional stickiness also marked the drafting of the 1987 charter, which brought back many central features of the 1935 Constitution which Marcos had replaced.[821] These include unitary government,[822] presidentialism,[823] bicameralism,[824] nationwide (not regional) election of senators,[825] much of the Bill of Rights,[826] judicial review,[827] and the independent Commission on Elections.[828]
IV.