The draft federal constitution: the case against a long, complex constitution

The draft federal constitution for the Philippines presented by the Constitutional Commission is a long, 82-page document, presented in single-spaced typed text, coming to a total of 30,516 words.

Just for perspective, the document is 6.7 times longer than the original US Constitution that went into effect in 1789 (4,543 words, including the signatures). In the course of more than 200 years of American history, 27 amendments caused this to rise to a total of 7,591 words. The draft Philippine federal document is still four times longer than the amended US Constitution.

Another example for comparison is the French Constitution of 1958. Its English translation of the French language text contains only 6,953 words!

A complete rewriting. Executive Order No. 10, dated Dec. 7, 2018, created the Constitutional Committee (ConCom) of not more than 25 members to “study, conduct consultations and review the provisions of the 1987 Constitution, including but not limited to the provisions of the structure and power of the government, local governance, and economic policies.”

In response to this broad mandate, the ConCom, headed by former chief justice Reynato Puno, came up with a comprehensive constitutional draft. It has been submitted to the Congress for possible adoption.

This draft document deserves our scrutiny, for it will impact our lives and those of the generations who follow us. Consequences will include the ways in which our economy could evolve in the future. Each generation of Filipinos needs the flexibility to steer their future course.

It is, therefore, important to discuss the overall format and framework of the proposed constitutional document.

Ideally, a constitution should be simple, short, and narrow in scope. Its main purpose is to outline the structure and form of government, including defining the main duties of the principal organs of government and of its principal officers and their interrelations.

The preamble of the constitution should provide the definition of national aspirations of the people. This part is inspirational and declares the statement of the goals and objectives of nation-building.

Should there be a French connection? Perhaps, we should take a cue from the French Constitution. I quote from its preamble:

“The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946.”

In a single provision and instead of a long list of rights, the preamble was able to deal with the bill of rights issue. From that point on, the constitution was able to go to the heart of the matter, to define the political structure of the government, describing each of its major branches and specifying their inter-relationships.

I must note that Article 34 of that constitution states that the French parliament has the duty to pass laws that cover almost all matters.

The French Constitution prescribe constitutional policies mainly on the structure of the government. In general, it stays away from defining restrictions that apply to economic, social, family, educational, civil and criminal matters. All

such issues are matters of ordinary legislation, the duties of the elected parliamentarians.

Why the ConCom draft is massive. ConCom’s draft federal constitution is very long because it is full of details and special definitions outside the essential structure of the government.

First, of course, and as it should, it provides the details for the structure of the proposed federal government. This covers the new provisions on the description of the executive, legislative, and judicial branches, describing their operations and interactions.

In addition, it lists the constitutional commissions that are already operating and are provided by existing laws.

Also, the draft federal constitution contains a long list of state policies amounting to 28 sections that amount to instructions. This is accompanied by a section on the bill of rights of citizens which goes beyond political rights. There are social and economic rights (and some enumeration of what this meant in terms of right to food, health, education, and employment).

In addition, it covers a restatement of the policies pertaining to the economy and national patrimony. It has a long section on social justice. It gives special directives on the nature of policies for science, technology, sports, and culture and the arts. Further, there is a section on the family.

In many parts, the draft constitution is enunciating basic new state policies. It is as if it is legislating almost for all time since the provisions of the constitution can only be amended at a very high bar for approval.

In this manner, the constitutional drafters, instead of facilitating the future making of laws by the people’s duly elected parliament, are arrogating unto themselves the preparation of instructions on how the laws of the nation on a lot of matters are to be defined. In short, they are defining provisions to follow their judgment of the moment about the content of fundamental law! This was the original sin of the 1935 Constitution – that all framers of future Philippine constitution makers continue to follow, especially this one with its much longer list of nonpolitical legislations.

An important consequence of those specific provisions was the unexpected and adverse outcome of some of the restrictions on the succeeding generations of Filipinos after independence.

(Among many developing countries, the Philippines has difficulty in attracting foreign capital to participate in helping us build a progressive national economy – because the restrictive economic provisions and their later variants have hovered in the background since 1935!) Lengths of previous Philippine constitutions compared. The text of the 1935 Constitution (drafted by the Constitutional Convention chaired by Claro M. Recto) was 8,483 words in length.

The 1973 Constitution (framed by the Constitutional Convention chaired by Diosdado Macapagal), which recommended a shift to a parliamentary government, was written in 12,875 words.

The 1987 Constitution (Corazon Aquino’s People Power Constitution), prepared by a constitutional committee, was in all 21,659 words.

The ConCom draft federal constitution of 2018 as presented is 3.6 times longer than the 1935 Constitution; 2.4 times than the 1973 Constitution; and 1.4 times longer than the 1987 Constitution.

In a sense, it is a copy of each of the previous constitutions, only more interventionist on a lot of matters.

My email is: gpsicat@gmail.com. Visit this site for more information, feedback and commentary: http://econ.upd.edu.ph/gpsicat/

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