IN ITS PREAMBLE, THE 1973 BASIC LAW DECLARES RIGHTLY THAT THE FILIPINO PEOPLE ARE SOVEREIGN, A REFERENCE TO THE 1935 CONSTITUTION BEING COLONIAL IN CHARACTER. “BLESSINGS OF INDEPENDENCE” BECAME “BLESSINGS OF DEMOCRACY”. “UNDER A RÉGIME OF JUSTICE, LIBERTY, AND DEMOCRACY” BECAME “UNDER A RÉGIME OF JUSTICE, LIBERTY, AND EQUALITY.”
By Antonio S. Lopez
The delegates to the 1971 Constitutional Convention were young (average age straddled between 35 and 37), idealistic, reform-minded, and represented the intellectual, economic and political elite of the country, if not the best of the Filipino race.
They were elected in an election that today remains the cleanest and fairest in history. The interest and future of the nation were the primordial consideration.
Their mission: Craft a new Constitution that will cut the country’s umbilical cord from its colonial past of 450 years, establish rules of order and governance that befit the Philippines’ stature as Asia’s first Republic, and lay the foundation for a robust future—independent, democratic, socially and economically inclusive, and proud of its heritage that embodies the best of the West and the East.
The 1973 Constitution has “Mission Accomplished” splashed over it.
With 12,875 words, the 1973 revision is 52.3% longer than the 8,449-word 1935 version. In this case, the verbiage is worth it.
In verbosity though, no constitution (perhaps in the world) can beat the 1987 Philippine Constitution or the current version which is 21,660-word long—68% longer than 1973’s and 2.5x longer than the 1935 Constitution. In the case of the 1987 charter, the result of verbiage has sometimes been confusion and conflict.
In its Preamble, the 1973 basic law declares rightly that the Filipino people are sovereign, a reference to the 1935 Constitution being colonial in character. “Blessings of independence” became “blessings of democracy”. “Under a régime of justice, liberty, and democracy” became “under a régime of justice, liberty, and equality.”
So there, sovereignty, democracy, and equalit—the 1973 Preamble defined a nation’s greatness in a 60-word sweep.
The 1935 Constitution limited Philippine territory to that ceded to the United States by Spain under two treaties –the Treaty of Paris in 1898 and the Treaty of Washington in 1900.
The 1973 Constitution enormously expanded Philippine territory to include the entire archipelago “with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and the other submarine areas over which the Philippines has sovereignty or jurisdiction.
The waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.”
That means Sabah (“historic right or legal title”), the Kalayaan Island Group, and sovereign rights in the Exclusive Economic Zone (EEZ). In effect, the 1971 Convention future-proofed Philippine territory, including its territorial sea. The 1971 Convention antedated the 2009 nine-dash line submission by China to the United Nations of its territorial map.
The 1973 Constitution defined for the first time what is natural born—“one who is a citizen of the Philippines from birth without having to perform any act to acquire or perfect his Philippine citizenship.” This is an important definition. It is also in the 1987 Constitution.
In succeeding Philippine presidential elections, questions were raised of candidates who were suspected of not being natural born. It now appears a baby found at the doorstep of a church, or any doorstep for that matter, is natural born.
In the Bill of Rights, freedom of abode, which shall not be impaired, includes liberty to travel but adds exceptions—“except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health.” In effect, freedom of abode and travel could be restricted, as has been done under the current pandemic. In the 1987 Constitution, freedom of abode and travel are two separate rights but are treated under a single section (Section 6).
In the privilege of habeas corpus, which shall not be suspended, an additional exception is made—imminent danger, on top of invasion, insurrection or rebellion.
Duties of citizens
The 1973 Constitution defines the duties of citizens (this was not in the 1935 charter). These include, to:
— Be loyal to the Republic and to honor the Philippine flag, to defend the State and contribute to its development and welfare, to uphold the Constitution and obey the laws, and to cooperate with the duly constituted authorities in the attainment and preservation of a just and orderly society.
— Exercise rights responsibly and with due regard for the rights of others.
— Engage in gainful work to assure himself and his family a life worthy of human dignity.
— Register and cast his vote.
The 1987 Constitution drops this whole section of duties of citizens under the 1973 charter.
Presidential term and age
The term of office of the Philippines used to be six years, under the 1935 Constitution. This was amended to accommodate Manuel Quezon’s desire to extend his term—four years with reelection.
The 1973 Constitution restored the six-year presidential term, increased the minimum age to 50 (from 40 under the 1935), and set the start of his/her term to noon of June 30.
The 1987 Constitution restores the old 40 minimum age for president under the 1935 Constitution. The 1971 delegates probably thought 50 is the age of maturity for a presidential candidate. As it happens, a 70-year-old could still be a child. Or a moron.
The 1973 Constitution creates under a parliamentary system, a legislature called Batasang Pambansa composed of no more than 200 members (the law can increase the number. The 1935 Constitution pegged Congress membership at 98). They are younger—25 years of age, from 30 under the 1935 Constitution. The 1973 Constitution introduces the concept of sectoral and regional representation. They shall serve for six years. No word on term limits.
Both the 1935 and 1973 restricted foreign ownership to no more than 40% for exploitation of natural resources which is reserved for Filipinos and corporations which are 60% Filipino. Also reserved for Filipinos are “certain traditional areas of investments when the national interest so dictates”.
The 1973 Constitution, however, introduces the concept of service contract for exploitation of natural resources. The 1987 Constitution retains the restrictive provisions of the 1935 and 1973 Constitution banning majority ownership of companies engaged in natural resources use.
The restriction is often cited as one reason why the Philippines has missed out on three major waves of foreign investments that flowed into Southeast Asia in the last 50 years.
The 1935 Constitution did not have a single word “accountability”. The 1973 Constitution creates an entirely new section, on Accountability of Public Officers, in 326 words. I guess it was honesty system during the time of Quezon and Sergio Osmeña.
Just like in the 1935 Constitution, the 1973 Constitution says the president, the vice president, members of the judiciary, and the auditor general can be removed from office by impeachment. The 1973 also creates new constitutional commissions whose heads can be removed by impeachment.
Tanodbayan and Sandiganbayan
The 1973 Constitution creates an anti-graft prosecutor called Tanodbayan (or Ombudsman) and a special anti-graft court called Sandiganbayan for complaints relative to public office.
The 1987 Constitution improves on this anti-corruption concept. It mandates that all public officers and employees must “lead modest lives”. Enrichment, when obvious, thus becomes a crime and a source of shame.
Still, governments after the 1987 Constitution became even more corrupt than those under the 1935 and 1973 Constitutions. For two reasons: One, the abolition of the two-party system; and two, the failure of term limits to curb nepotism and perpetuity in power of political dynasties.
The abolition of the two-party system led to incompetent governments and extremely corrupt elected officials.
The old two-party system of the Nacionalista and Liberal parties under the 1935 Constitution ensured competence, relative honesty among officials, and clean electoral counts.
The object of the NP and LP was capture power, principally the presidency. To do that, the parties must capture first the Senate, the breeding ground of presidents. Until 1966, most presidents came from the Senate.
To capture the Senate, the NP and LP fielded the best and brightest from each region. Usually, these were the bar topnotchers, the best educated and the professional class from each region. The rigid selection for senators promoted excellence and competence.
The two-party system
A two-party system also meant the state partly financed presidential campaigns because the NP and LP each was represented at the precinct-level election boards. No results could be released unless signed by the chairman, a teacher, and the NP and LP representatives. Today, there is no such system. This forces the presidential candidate to employ his own poll watchers—at least two per precinct. If there are 40,000 precincts, he must employ 80,000—very expensive, given a two-day electoral rites.
Without government-funded campaign finance, presidential elections became horrendously expensive and divisive. Winning presidents become beholden to big time donors, the vested interests, and thus have to be corrupt to pay back. Without the two-party system, popular actors, comedians, boxers, and tv people win hands down during elections. They also manage to win the presidency. Competence is disregarded as an issue.
Term limits were supposed to curb dynasties, of which the Philippines has 100 at most. To overcome the loophole, incumbents fielded their nearest of relatives –parents, children, in-laws. The result was even bigger, monstrous dynasties. So you have in the Senate, siblings serving at the same time, parents alternating with their children to serve in the upper chamber, and husbands and wives. The dynasties, of course, help themselves with the resources of the state.
The government, after all, is the Philippines’ biggest corporation, biggest borrower, and biggest spender.
Today in ASEAN, the Philippines is the worst managed, among the most corrupt, and with the lowest FDI, and the highest incidence of hunger and poverty.
Can future constitutions solve those problems?
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