Constitutional rot is the steady erosion of constitutional norms. According to Professor Jack Balkin, Knight Professor of Constitutional Law and the First Amendment of Yale Law School, “it is the process through which a constitutional system becomes less democratic and less republican over time.”
The thought of us being afflicted with constitutional rot is spurred by the domination of political dynasties of our politics and governance. As of last reckoning, close to 80% of members of the House of Representatives belong to a fat dynasty. After the midterm elections, the Senate could be overrun by political clans as well.
President Bongbong Marcos himself is the patriarch of probably the biggest and oldest political family to date. And we all know that he owes his electoral victory to an alliance of the most powerful clans today. Truly, whether constitutional rot has hit us is worth thinking about.
First and foremost, we must acknowledge that as per Article II, Section 1 of the 1987 Constitution: “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Fundamentally, this is how we designed our politics and governance to be.
This provision is often described as the fundamental articulation of the “people power” ethos in the 1987 Constitution because it affirms the supremacy of the citizenry in our political system. One constitutional drafter explained that this provision demonstrates the people’s ability to express their collective will (or “sovereignty”) through active participation in the electoral process.
Pertinently, in the case of Macalintal vs Comelec [G.R. No. 263590, June 27, 2023], the Supreme Court citing Justice Isagani A. Cruz explained:
“The essence of republicanism is representation and renovation, the selection by the citizenry of a corps of public functionaries who derive their mandate from the people and act on their behalf, serving for a limited period only, after which they are replaced or retained, at the option of their principal.”
Second point to make here is that the power to choose political leaders is inherent in all citizens by constitutional fiat. Indeed, according to the case of Geronimo vs Ramos [G.R. No. L-60504 May 14, 1985]:
“The people have a natural and a constitutional right to participate directly in the form of government under which they live. Such a right is among the most important and sacred of the freedoms inherent in a democratic society and one which must be most vigilantly guarded if the people desire to maintain through self-government for themselves and their posterity a genuinely functioning democracy in which the individual may, in accordance with law, have a voice in the form of his government and in the choice of the people who will run that government for him.”
The third and final point to make is that the public good is the raison d’être of having a democratic republican political system. Justice Cruz elaborates further:
“Obviously, a republican government is a responsible government whose officials hold and discharge their position as a public trust and shall, according to the Constitution, ‘at all times be accountable to the people’ they are sworn to serve. The purpose of a republican government it is almost needless to state, is the promotion of the common welfare according to the will of the people themselves.”
According to Prof. Balkin, “When we talk of constitutional rot, therefore, we are interested both in failures of democracy—that is, responsiveness to public opinion and public will—and failures of republicanism—that is, public officials’ devotion to the public good.”
With the domination of fat political dynasties of our politics and governance, we must ask ourselves whether the public officials we elect are still capable of working towards the common good as demanded by us? Is it not the case now that we are allowing them to stay in power just for the expansion of their clan’s political and economic agendas?
The professor becomes eerily prophetic, at least as regards the lamentable state of our politics and governance, with these words: “And when public officials are no longer responsive either to public will or to the public good, and instead serve the interests of a small group of powerful and wealthy people, the result is oligarchy—rule by the few.”
It is undeniable that we are currently imperiled by constitutional rot. The question is, what are we going to do about it?
(MindaViews is the opinion section of MindaNews. Michael Henry Yusingco, LL.M is a law lecturer, policy analyst and constitutionalist.)