The Philippines has a long history of constitutional replacement and amendment since 1896. The current 1987 Constitution, though argued to be in need of changes, is yet to be amended. There had been some high profile attempts to amend the Constitution, spanning three administrations: Fidel Ramos, Joseph Ejercito Estrada, and Gloria Macapagal - Arroyo. All of them failed despite seeming well-argued positions in favor of amendments. This qualitative and descriptive study focuses on the Arroyo Administration [2001-2010], where the most tenacious efforts at constitutional change were pursued. This thesis argues that the attempts at constitutional amendments failed due to confluences of unfavorable contexts, lack of compromise among interests, and hard-lined contestation among the actors participating in those attempts. The particular social, economic and political experiences of the country, especially Marcos’ constitutional authoritarianism, had made the people particularly suspicious of any amendment attempt. The proponents of the amendments [Pres. Arroyo, her administration, and her allies in the House of Representatives and local governments] were further suspected because of the numerous scandals that eroded Pres. Arroyo’s legitimacy. The opponents [the Senate, the Churches, and numerous organizations] were quick to suspect the proponents of moving to perpetuate themselves in power, thus foreclosing any real possibility for compromise. Incessancy pervaded the proponents however, leading to fierce contestation between the two sides. By that time, the opponents eventually evolved into a social movement that sought to protect the Constitution from self-interest and ensure that the reforms being pushed would be genuinely concerned for the good of the people. Thus, to overcome this impasse in reform, advocates need to acknowledge and attend to the complex challenges mounted by disabling contexts, disparate interests, and contentious nature of constitutional politics.
See Full PDF See Full PDFPresident Rodrigo Duterte assumed office in July 2016, His party, PDP-Laban, had campaigned under the slogan: "No to Drugs, Yes to Federalism". Duterte thus is committed to shepherding the Philippines towards a federal form of government; an undertaking that would require an extensive overhaul of the country's constitution. The future of constitutional change under Duterte in any event is uncertain for a series of constitutional and political reasons. Critically, some of the most pressing of these concern the process of constitutional change itself.
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In legal orders around the world, commitments to democracy, liberalism, and constitutionalism are increasingly eroding. Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this paper are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance, and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant's constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. In legal orders around the world, commitments to democracy, liberalism, and constitutionalism are increasingly eroding (Huq and Ginsburg 2018; Kurlantzick 2014; Plattner 2015; Scheppele 2019). Although political and constitutional theorists often lament this trend, they invariably adopt frameworks that are indifferent to these commitments. My aims in this paper are both critical and constructive. As a critical matter, I will expose the indifference of the leading political and constitutional theories to the emergence, maintenance, and refinement of liberal democratic constitutional orders. As a constructive matter, I will draw on Immanuel Kant's constitutional theory to explain why realizing such a form of governance is a public duty and why receding from it is a public wrong. Political and constitutional theorists offer two basic ways of thinking about modifications to an existing constitutional order. The animating principle of the procedural paradigm is that the structure of a constitutional order must answer to the deeply held convictions of the people that it governs. Constitutions enable citizens to transform their convictions into supreme law through a particular procedure, often requiring an enhanced majority. Accordingly, in order to determine whether a particular constitutional amendment is valid, one must ask whether the relevant procedure has been satisfied. The opposing preservationist paradigm advances the competing idea that the purpose of a constitutional amendment is to refine the existing order, not to destroy it. Accordingly, in addition to satisfying the relevant procedure, amendments must satisfy a substantive criterion by conforming to the identity of the existing constitutional order. Thus, even an amendment that satisfies the most demanding procedure-say, the unanimous approval of citizens or their representatives-could be invalid.
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This article examines the 1987 Constitution of the Philippines’ provisions on social and economic rights and welfare. It considers how the 1987 Constitution fits within the post-liberal paradigm of ‘transformative’ constitutional texts that emerged during democratic transitions in the 1980s and 1990s. It then analyses how the Supreme Court of the Philippines responded to the constitutional call for egalitarian socio-economic reform in the first fifteen years after the People Power revolution. The article highlights how the 1987 Constitution envisions far-reaching, progressive socio-economic change, and incorporates both social and economic rights as well as open-ended policy goals in this regard. The article argues that this hybrid approach to distributive justice creates a distinctive set of interpretive challenges for the judiciary. It then argues that the Philippine Supreme Court’s approach to these provisions in the years following the transition to democracy was perfunctory and.
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The author argues that Ginsburg’s insurance theory is applicable in the Philippine case, albeit with a slight twist. Instead of reflecting the interests of powerful politicians at the time of its drafting, the post-Marcos 1987 Constitution adopted stronger judicial review powers as a means of protecting democratic safeguards and strengthening judicial checks on the Executive to reinforce horizontal accountability. The insurance system came in the form of an empowered judiciary which was tested and proven when the Supreme Court, by exercising its power of judicial review, provided a forum to challenge constitutional amendments intended to benefit dominant political forces and acted as guardian of the Constitution.
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Pacific Basin Law Journal
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It has been a little over a year since President Rodrigo Duterte won the presidency. The Mayor-turned-President founded his campaign — and later on his administration — on a promise to swiftly put finis to the drugmenace hounding the Philippines. In keeping to his word, Duterte, his administration, and his supporters have acquiesced, and even encouraged, the killing of suspected drug users and/or peddlers by the police and vigilantes. This is only the first of many illegal and unconstitutional acts of the government under Duterte. The above tableau is curiously set against the background of a republic that espouses in its Constitution the rule of law, the separation of powers, and due process. Duterte’s actions and public acquiescence reflect what the Author calls “constitutional deconsecration” or the processes of removing the sacred character of the Constitution. The Article aims to trace the genesis of constitutional deconsecration, the inquiry branching into: (1) Dutertismo and (2) the colonial history of the Filipino and its effect on the legal transplantation that occurred between the Philippines and the United States. In this Article, the Author dissects the politics of Duterte, arguing that support for the President emanates from the pent-up anger among the middle class at the deterioration of public order and concerns about growing drug abuse. Duterte won and continues to enjoy popular support because he packages himself as a newcomer in Philippine politics, and constantly dissociates himself from the political elites. More importantly, his wanton disregard for the Constitution and prevailing laws is something that needs addressing. From this premise, the Author argues that Filipino indifference or acquiescence to executive acts that clearly violate the Constitution is the product of Philippine colonization. The real reason for Filipino’s lack of fealty towards the rule of law is the absence of a “constitutional moment.” The Constitution was presented as a finished product with local participation to ensure the acquiescence of local elites, with fundamental questions of constitutional choice safely remaining in foreign hands and not entailing any meaningful or substantive decision-making power. An imposed constitution, the Author concludes, is instantly diminished because the colony did not share the values that helped shape the Constitution.
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Journal of Law and Society
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