Is constitutional reform needed to keep alive the promise of People Power?

The People Power Revolution that ended the dictatorship of Ferdinand Marcos Sr. in February 1986 was more than a model for peaceful regime change, it paved the way for a new legal scaffold for Philippine politics. Today, the 1987 Constitution is inseparable with the idea of People Power, inscribing the charter with a sacrosanct quality that has made it impervious to any calls for amendments.

The 1987 Constitution, ratified a year after the protests, established the norms for the kind of politics that Filipinos aspired to after decades of dictatorship. Its language was progressive and inclusive and aimed at social transformation, including the introduction of a party-list system for politically marginalised sectors. It contained a robust human rights framework, both through separate articles on the Bill of Rights and Social Justice.

Apart from reinforcing civil liberties, the charter enabled strategic litigation on social and economic rights. As a more direct response to the lessons from the Marcos Sr. years, the 1987 Constitution put in place stringent measures for declaring Martial Law and reinforced the separation of powers. Together with the constitutional office of the Ombudsman, the charter introduced avenues for holding erring officials accountable.

Where political disempowerment characterised the Marcos Sr. years, the 1987 Constitution promised consensus and greater direct involvement of the people in political life. As a corollary, the judiciary’s ‘expanded certiorari power’ – which empowers the court to entertain questions on the grave abuse of the discretion of state organs – has allowed the Supreme Court to enter the ‘political thicket’ in moments ripe for intervention. Amid deepening polarisation and inequality, the 1987 Constitution remains in its original state, untouched by many efforts to amend it over the years. In this sense, the 1987 Constitution remains the only tangible legacy of the People Power Revolution.

Despite the constitutional innovation, some of the Philippines’ most complex contemporary issues have appeared to turn the promises of People Power on their head.

In the past decade, the Philippines saw the Rodrigo Duterte-era ‘Drug War’ unfold, with the president himself leading the charge in discrediting the framework of human rights. The Philippines saw further entrenchment of elite democracy. Civil society continues to lobby for an Anti-Dynasty Law with great difficulty, one of the state policies declared by the constitution itself. The major stumbling block is the constitutional provision that leaves the Congress—now an institution captured by dynastic politics—to define political dynasties by law.  The country is facing historic levels of corruption. Zaldy Co, the fugitive ex-congressman touted as the central figure of the latest wave of corruption scandals, was himself elected under the party list system. And with the  Supreme Court’s latest pronouncement on the impeachment case against Sara Duterte, one of the constitutional avenues for public accountability has arguably been neutered.

The Constitution now appears to be buckling under the weight of administrative, social, and political changes in the Philippines over the years. The strength of its guardrails against corruption has worn out, demonstrating how  “democratic backsliding can happen gradually” and with institutional imprimatur.

Yet paradoxically, despite cumulative evidence pointing to the need to revisit the social compact underpinning the 1987 Constitution, its unusual endurance may also be the very reason Filipinos feel protective of the charter. Four decades without amendment is an uncharacteristically long period compared to the charters of its peers.

Nevertheless, Filipinos’ suspicion of amendments is not unfounded. Marcos Sr. arrogated legislative powers to himself through Amendment No. 6 to the 1973 Constitution. In the subsequent ‘ratification cases’, the Supreme Court refrained from declaring the process unconstitutional, describing it as a ‘political’ rather than a legal question. This brought noriety to efforts to change the constitution and, at the same time, highlighted the dangers of a docile judiciary. Numerous administrations after Marcos Sr. have also attempted to amend the constitution. From President Fidel V. Ramos to President Rodrigo Duterte, there were different iterations of efforts to change the constitution, with some cases over their validity heard by the Supreme Court.

Cumulatively, these historical experiences created a ‘deep distrust’ of constitutional amendments. Some scholars have provided an explanation through a design-based analysis. Ideally, subsequent generations would have built on the charter’s framework, which is open-ended. Relatedly, others have linked reluctance to the process of how amendments can be made and how these processes can inevitably trump sovereign will.

A form of trap then comes into play: the hallowed status of the Constitution as an identifiable product of the People Power Revolution may itself constrain the practice of democracy. Whether this paradox needs to be overcome depends on the contemporary values of the Filipino people. Should a constitution drafted at a time the Philippines was a paragon of re-democratisation be preserved, or should it be revisited to suit current needs?

It is difficult to answer this question in politically difficult and divisive times.

As victim lawyer Joel Butuyan stated at the International Criminal Court four decades after People Power many peace-loving Filipinos have “become converts to the belief that violence and killings are valid solutions to social problems”. Social transformations in any direction take time, and perhaps changing the framework of the legal order is only one incomplete, imperfect piece of the puzzle.

We are not advocating an overhaul the Constitution, nor are we endorsing any current proposals for constitutional change. However, a closer look at the Constitution’s features on accountability should be part of a public conversation, given how breaches of public trust and corruption have gone unresolved.  Revisiting the Constitution, if it is to be done, must be a consultative, deeply participatory practice.

But even before that, we must confront the paradox at the heart of post-authoritarian constitutionalism: the very document borne of democratic restoration can, if treated as untouchable, narrow the space for democratic evolution. The danger lies in the Constitution’s consecration. We risk mistaking the preservation of the symbol for the practice of democracy itself when democracy is embodied in a single sacred document.

Ruby Rosselle L. Tugade is a doctoral researcher at the University of New South Wales Sydney Faculty of Law & Justice, supported by an Australian Government RTP scholarship. She lectures international law at the University of the Philippines College of Law. Her legal practice centres on human rights and accountability for mass atrocity events.

Athena Charanne R. Presto is a doctoral researcher at The Australian National University’s School of Sociology, supported by an Australian Government RTP scholarship. Her research and publications focus on the intersections of politics, gender, and policy.