The “C” Word

I teach Constitutional Law. I do so with civic and critical irreverence. I feel that that attitude is essential in order to equip students to see constitutional provisions not merely as limiting frame but more to understand what the text and doctrinal interpretations really say and therefore to realize the possibilities given cases and social issues that they will inevitably encounter. In my view, an unthinking unhistorical admonition that the constitution is so sacred that the possibilities of what it can be cannot be discussed in public does more to weaken the social fabric of the state and the societies that it is supposed to protect. Constitution is a word that political actors should not avoid. Instead, discussions about it should be embraced.

In my classes, I train students to see the words, phrases, sentences and structural contexts of the provisions in the Constitution. I train them the way that I expect justices--of various skill levels--would see it. After all, with indulgence to the Bee Gees, “words are all we have” as lawyers.

Thus, an ordinary reading of the fourth paragraph of article XII, section 2 paragraph 4 of the Constitution might miss the tiny “or” in between “financial” and “technical”. But with cases such as La Bugal B’laan Tribal Association et al v Western Mining Corporation, this two letter word becomes the textual forum to determine control of trillions of pesos worth of minerals, lives of countless indigenous peoples and farming communities, and complex theories of “reading” and “interpretation”. These discussions set the stage for the well rehearsed but fundamental and ubiquitous questions of law and legitimacy, law and expectations, law and culture, law and economics.

There are countless other words in eighteen articles with a total of three hundred and one numbered provisions. Thus, “...founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till...” in article XIV, section 4 adds volumes into discussions about agrarian reform in Hacienda Luisita. The word “Congress” (yes with a capital C) in article XVII (amendments and revision) opens dimensions of ambiguity that can be deployed to cause or settle political conflict. And this possibility for ambiguity is present no matter what the constitution, for so long as words are words, words are words in context, words are used to signify and words are used for various purposes.

Constitutions, like all law, are crafted by human beings working through the politics of various forums legitimized by social realities. Constitutions, and the political necessities that they spawn, are therefore imperfect. This does not mean that lawyers should not--and cannot--use its provisions. Understanding the constitution with sufficient irreverence to arrive a more critical way of deploying it does not easily translate to an advocacy to violate its provisions. It invites discussion. And discussion can only lead to genuine participation in the body politic--especially by those who have not had a say in the formulation of law or even perhaps in the crafting of a constitution. Those who others better placed in the status quo would call as “rank amateurs”.

Of course, we could always start with the “constitution as a social contract”, and then silence those who do not find that metaphor as intellectual satisfying nor truly politically descriptive. Or that the “constitution is a manifestation of the sovereign will” and therefore reduce our critical abilities to the instinctual awe provoked by the holiness of the word “sovereign”. There is a temptation to call anyone who even discusses constitutional change in the agenda as automatically committing “treason.” I know that these metaphors have been deployed--even jurisprudentially. I sense that in the absence of reason, omnipotent metaphor that have become cliche fills in the vacuum. Authority--qua authority--is the normal refuge of those who fear authentic discussion. And normally, this again come from people who benefit the most from the status quo.

At the University of the Philippines, I have often heard that to be critical is in itself liberating political practice. I would not go that far. I would qualify it by saying that it depends on the cogency of the argument, the standpoint from which it is argued and the way the points are made. But, I am sure that conversations tend to be more egalitarian when there is more tolerance for the irreverent.

I think that from time to time, our political discussions in media should be infected by these discussions. I would think that this should be most welcome even if they do not scream headlines, nor stereotype people, nor sell newspapers.

Comments

[Frank Santos]

I'm afraid the Philippine media on the whole is intellectually-challenged, with sectors downright mediocre and quite possibly unable to competently engage in such discussions.