7 things to change in the 1987 Constitution - MDS

Below is the speech "PROPOSED CHARTER CHANGE" delivered by Sen. Miriam Defensor Santiago (Speech at the Charter Change Symposium sponsored by the Social Sciences Society of Centro Escolar University on 11 January 2013. Read more at www.senate.gov.ph.

An important part of the menu of reflections society must occasionally undertake concerns the need to re-evaluate the basic terms of our social contract codified in our Constitution. This meditation on social foundations assumes greater importance given that about half of our population today and, to be sure, the overwhelming members of the audience today - did not have the opportunity to ratify the current Constitution when it was submitted to the people in 1987.

The term of art used by constitutional law scholars to refer to the binding force of a constitution ratified long ago is "the dead hand of the past," a supposed understanding which influences the way current society applies and calibrates the language of the constitution. In more formal language, we use the term "pre-commitment" or the idea that the constitution, as an embodiment of the wisdom of the ages, should serve to control the unruly thoughts of the members of the current generation by setting limits to what they can and cannot do.

But while we recognize the wisdom of our founding parents who drafted the constitution in 1986, we should also realize that their vision was constrained by their environment at the time they wrote the document, and that because they were not prophets what they created was a blueprint for a constitutional government, not an encyclopedia of how society should operate. This also means that those of us who exist in the here and now have the advantage of having seen the Constitution as it has operated in the last two and half decades and are now eminently positioned to reflect on how this charter can respond better to the challenges of a globalized community. Let me give you some ideas to think about as we assess the relationship between the Constitution, on one hand, and political and economic progress, on the other.

1. We should shorten the Constitution. Ours is a constitution that is both noisy and verbose. It is full of too many grand statements that are the trademark of political speeches. A progressive constitution is one that focuses on political structures and actual mechanisms that operationalize those political structures. We must have a constitution that is both lean and meaningful.

2. The Constitution must have a working mechanism for initiative and referendum. This is a very important mechanism because initiative and referendum are constitutional processes that allow the people to continually update the constitution and force the hand of the legislature. Laws that are difficult to pass such as the Political Dynasty Law and the FOI Law can become realities with the proper use of initiative and referendum. These twin mechanisms also allow the citizens to directly participate in legislation, which is good because it makes our democracy more participatory.

3. We should look at the possibility of regionalizing both the Senate and the party-list system. This should respond to the problem of underrepresentation of certain regions of the country in the legislature. This might even undermine the power of nationally-popular public figures with little qualifications for important public offices to get elected. Regionalizing the party list might also encourage local political organizations to bring their agenda before a national forum.

4. We should professionalize important local and national offices by imposing academic qualifications. If we require members of local and national bureaucracies to be degree holders, there is no reason why we should not do the same for mayors, governors, congress people, senators, and presidents. If we want global competitiveness, we should require our leaders to be, at the very least, formally educated. This is because education is a powerful constraint against narrow parochialism and a gateway to ideas that can change communities. The best place to impose this requirement is in the Constitution.

5. We should limit the corrupting power of pork barrel in the Constitution. In my view, the pork barrel system has had the effect of inflating the cost of public office, distracting legislators from their real work, and unduly empowering the executive department, to the detriment of the public and the principle of separation of powers. We should place mechanisms in the Constitution to ensure pork barrel (1) does not line the pockets of politicians, and (2) does not become a discretionary fund that can be dangled by the President to promote transactional politics.

6. We should think of the possibility of removing from the President the power to appoint members of the judiciary. Colonialism and inertia are the only reasons why we give the President the power to appoint - and therefore politicize - judges. This just does not make any sense. Instead of just making the Judicial and Bar Council a recommending agency, why not give it the power to appoint? Couple this reform with some measures to ensure the independence of the JBC and we might actually have a better shot at improving the judiciary.

7. We should find a balance between the nationalist provisions of our Constitution and the demands of a global economy. We should ask: Are these nationalist provisions for the benefit of the ordinary Filipinos or the economic elite? To what extent do these restrictions actually help promote our economy or even our culture? Which areas of economic life should we subject to the operations of the market economy and which should we protect for the benefit of future generations of Filipinos? Finally, which areas of the economy are best left to policymaking by Congress and which should be pre-committed through the Constitution? I think these questions are preliminary considerations to a rational and effective approach to the economic provisions of the Constitution.