A universalist history of the 1987 philippine constitution (I)
| Autor | Diane A. Desierto |
| Páginas | 384-444 |
"To be non-Orientalist means to accept the continuing tension between the need to universalize our perceptions, analyses, and statements of values and the need to defend their particularist roots against the incursion of the particularist perceptions, analyses, and statements of values coming from others who claim they are putting forward universals. We are required to universalize our particulars and particularize our universals simultaneously and in a kind of constant dialectical exchange, which allows us to find new syntheses that are then of course instantly called into question. It is not an easy game."12
- Immanuel Wallerstein in EUROPEAN UNIVERSALISM: The Rhetoric of Power3
"Sec.2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights."
- art. II, secs. 2 and 11, 1987 Philippine Constitution4
Page 384
Any legal scholar contends with several hazards in attempting to present a reorientation of our reading of the Philippine Constitution. Apart from the task of balancing usual tensions between formalist (verba legis) and teleological (ratio legis) schools of Constitutional interpretation, one has to surmount archaeologic and analytical challenges. Constitutional intent must be rigorously discerned and situated alongside its contextual nexus to Constitutional norms and their application to specific controversies. Expectedly, "textual, historical, functional, doctrinal, prudential, equitable, and natural" methods, otherwise known as the traditional canons of Constitutional interpretation, will be used in this process to illuminate our Constitution's normative moorings.5 More importantly, before departing from the primary reference to text and canon, the legal scholar must provide substantial theoretical validation to lend purchase to an 'alternative' Constitutional reading.
It is not my intention to attempt each of the foregoing intellectual tasks. That has already been more copiously and critically illuminated upon by a host of prominent (and certainly most authoritative) Philippine Constitutional scholars.6 I am more concerned with the last intellectual task --- deriving substantial theoretical Page 385 validation --- to submit a reorientation in (if not a redescription of)7 Constitutional reading. As I emphasize later at the conclusion of this work, it is in the nature of a 'categorical imperative' to our cognitive process of constitutional balancing of individual rights and state power that we identify both our implied and articulated philosophies.8 Only after we have fully exposed the underlying logic of the Constitution can we make a credibly-informed critique of the scholarly empirical characterization of the Philippines as a "renewed constitutional republic" that is "probably stable and generally viewed as at or near the performance criteria" of a functioning constitutional democracy.9
I submit that the basis for a more open-textured reading of the Constitution rests on the theory and philosophy of universalism ---nomenclature that is unspecified in our Constitution but whose fundamental concepts are replete throughout its written text and corresponding jurisprudential practice. Both the historical evolution and subsequent interpretation of the postcolonial 1987 Philippine Constitution reflect many of the precepts of universalism---- from the emphasis on the centrality and fundamental equality of individuals, the primacy of rights discourse and the contractarian legitimacy of political institutions, to Kantian conceptions for perpetual peace.10 As I will show later, Kant's three 'Definitive Articles' for perpetual peace (republicanism, foedus pacificum or a pacific federation among states, and the establishment of a cosmopolitan law affirming the shared value of human dignity11) are clearly reflected in the language and underlying philosophy of the Philippine Constitution. This result is expected, since even prior to its achievement of independence from colonial rule from Spain and the United States,12 the Philippines had already been envisaged as a liberal and Page 386 democratic republic. This intent and interpretation is consistently traceable to the genesis of the present 1987 Constitution from the 1899 Malolos Constitution (post- liberation from Spanish colonial rule), the 1935 Constitution (drafted during the Commonwealth period under American colonial rule) and even to the 1973 Constitution (which preserved many universalist norms in the Constitutional text, despite having been ratified shortly after the imposition of martial law under the regime of deposed president Ferdinand E. Marcos13).
What I find more salient and less rigorously explored in the literature is how the distinct language and orientation of the 1987 Constitution strongly entrenches democratic participation, individual autonomy guarantees, and executive accountability in the public order --- a decidedly 'legal' vigilance fueled by the experience of centuries of colonialism and recent decades of martial law rule. The 1987 Constitution, the longest to date with eighteen Articles and three hundred and six sections, already institutionalizes many universalist norms and conceptions. Apart from overt textualization, however, the Constitutional framers still provided for further entry of universalist norms in the Philippine legal system through the traditional mode of treaty-making, and more controversially, through the Incorporation Clause, where "generally accepted principles of international law form part of the law of the land". It is this latter provision that has been the mechanism by which customary international law and general principles of international law have been invoked (and with recent frequency) as actionable norms before Philippine courts.
With the continued exponential growth of international law norms to date, Philippine jurists increasingly function as 'explorers' seeking to 'discover' international law and its applicability within the domestic legal system. Formalists and positivists14 who rely on codified norms to govern conduct would likely oppose this increase of judicial discretion that simulates rule-making, in protest against the chaos of admitting the presence of embedded norms in the Philippine legal system. To adopt this intractable position, however, is to blind ourselves to the reality that our legal norms are the product of social perceptions, shared beliefs and values, and community processes of validation and legitimation.15 By repeatedly engaging in deliberative, cognitive, and interpretive exercises to winnow 'relevant' facts and 'pivotal' legal issues and thereby decide concrete cases, the judiciary is inevitably a Page 387 critical actor in the process of law-creation.16 As previously emphasized by noted Philippine Constitutional expert and law dean Pacifico Agabin, the judiciary is a "participant in the struggle for power by various groups and classes of society...because it cannot avoid it. The fact that it makes important decisions which impinge on the interests of the most powerful segments of society necessarily involves it in power politics."17 While a wholesale admission of 'embedded' norms seems prohibitive to achieving the 'neat' demarcations of positivist legal solutions,18 neither can we afford to be completely insensitive to the Constitutionally-intended and Constitutionally-established presence of such norms. This is, therefore, a case for 'demystifying the obscure' within the contours of our constitutional system.19
I aim to show that universalism has simultaneously motivated and informed Philippine constitutional practice towards participation in the international legal order that is purposely inclusive rather than isolationist or particularist. By universalism, we refer to the description of Armin von Bogdandy and Sergio Dellavalle of the international law paradigm that "order can in principle be extended all over the world, i.e. to all humans and all polities not only in their internal relations --- as contended by supporters of the particularistic paradigm --- but also in their interaction beyond the borders of the single polities. In this understanding there are rights and values which are universal because they are shared by all individuals and peoples. They are enshrined in the set of rules which build the core of international public law."20 Universalism's conception of shared primary values that transcend state borders and national loyalty symbols is, at its core, an orientation in contemporary ethics that calls upon us to rethink the breadth of our set of moral values and principles. Jürgen Habermas characterizes moral universalism as a value orientation towards individual rights whose existence is not dependent on the construct of nationhood: 21 Page 388
"...nationalism has been drastically devalued as the basis of a collective identity...the overcoming of fascism constitutes the particular historical perspective from which a post-national identity, formed around the...
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