The Constitution and its Legitimacy

The Constitution is said to be the supreme law of the land. It is considered as the “god of all man-made laws”.[1] This is the Doctrine of Constitutional Supremacy. Isagani A. Cruz captures the essence of this great doctrine in this wise:

“The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. No act shall be valid, however nobly intentioned, if it conflicts with the Constitution. The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of the law by the pretenders to illegitimate power.”[2]

The Constitution is the basis of the validity of all laws and governmental acts. It is the basis of the legitimacy of the very existence of government. It is the basis of the legitimacy of the exercise by government of powers that interfere with personal autonomy and liberty. It is the anchorage of all legitimacy.

The Constitution does not become legitimate just because it is a constitution and while it cannot be unconstitutional, it can however be illegitimate. Constitutionality therefore is one thing and legitimacy is another. Constitutionality is an attribute of governmental acts and laws that do not contravene the Constitution; legitimacy is an attribute of governmental acts and laws, including the Constitution, that makes them at the least, juridically right, acceptable, and necessary.

As the anchorage of all legitimacy, the Constitution must itself be legitimate. Its legitimacy cannot rests on mere conjectures or shaky theories. It cannot simply be assumed. It must rest on solid ground if it is to the basis of the legitimacy of all governmental acts and laws that depend on it for their own legitimacy.

What does legitimacy of the Constitution consist in? Is it in the positive consent of the majority of the people who ordained it as expressed in the process of its ratification? Is it the mere acquiescence of the people it seeks to govern?

In the landmark case of Javellana v. Executive Secretary[3] where the legitimacy of the 1973 Philippine Constitution was put in question, five questions were agreed upon as reflecting the basic issues involved, to wit:

1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable, question?

2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial, if not strict, compliance) conformably to the applicable constitutional and statutory provisions?

3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the people?

4. Are petitioners entitled to relief? and

5. Is the aforementioned proposed Constitution in force?

The second, third and fifth questions are important to our present inquiry because they give us an insight on how the Philippine Supreme Court understands and regards the legitimacy of the Constitution.

The second question deals with the validity of the ratification of the Constitution. It is simply a question of whether the applicable procedure for ratification was followed. Chief Justice Teehankee expresses the view that “the act of ratification is the act of voting by the people,” [4] that is, on whether or not they approve a proposed constitution.

Ratification is important in the life of a constitution because it is usually the reckoning point of its effectivity. Most modern constitutions contain a provision that says that they take effect upon their ratification. The procedure for ratification may differ from country to country. In the case of the U.S. Constitution, it provides that “the Ratification of the Convention of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the Same.”[5] In other countries, however, including the Philippines, ratification is usually done by the direct popular vote.

With respect to the 1973 Constitution, there are two ways of looking at its ratification: First, if the 1973 Constitution is to be regarded as a distinctly new Constitution, not a mere amendment to the 1935 Philippine Constitution, then it must be ratified upon its own terms, that is, based upon its own provision for ratification found in Section 16 of its Article XVII that says: “This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose x x x.” Second, if the 1973 Constitution is to be regarded as an amendment to the 1935 Constitution, then the procedure for ratification of amendments found in Article XV, Section 1 of the 1935 Constitution should be complied with. The said article provides that “amendments shall be valid as part of this Constitution (1935) when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.”

The Javellana Court regarded the question of validity of the ratification as dealing with whether or not the 1973 Constitution was validly ratified in accordance with Article XV, Section 1 of the 1935 Constitution. Six (6) members of the Court[6] held that the 1973 Constitution was not validly ratified; three (3) members[7] held that under their view there has been in effect substantial compliance with the constitutional requirements for valid ratification; and the last member, Justice Barredo, cast a qualified vote, explaining that:

“x x x I am constrained to hold that, in the political sense, if not in the orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution has been constitutionally ratified.”

While the majority had voted that there has been no valid ratification, the third question probes into the issue of whether or not the 1973 Constitution was acquiesced in (with or without valid ratification) by the people. In the view of the Javellana Court, the acquiescence by the people can be a sufficient basis of the effectivity of the Constitution. Acquiescence can substitute for the requirement of valid ratification.

On this third question of acquiescence by the people, no majority vote has been reached by the Court. Four of its members[8] held that the people have already accepted the 1973 Constitution; two members[9] held that there can be no free expression, and there has been no expression, by the people qualified to vote all over the Philippines, of their acceptance or repudiation of the 1973 Constitution; and the other three members[10] expressed lack of knowledge and/or competence to rule on the question.

With a majority saying on the second question that there was no valid ratification, and there being no majority vote reached on the third question with regard to the acquiescence by the people, the 1973 Constitution apparently had no basis for its effectivity. Surprisingly, however, the Javellana Court proceeded to a fifth question on whether the 1973 Constitution was already in force. Surprising, because this fifth question cannot in substance be separated from the second and third questions. Theoretically, the issue of whether the Constitution should be considered to be “in force” or not should just be an outcome of either the validity of its ratification or the acquiescence by the people. If it is neither validly ratified nor acquiesced in by the people, then it cannot be “in force.”

On the fifth question of whether the new Constitution of 1973 is in force, four members of the Court[11] held that it is in force by virtue of the people’s acceptance thereof; another four members[12] cast no vote thereon on the premise stated in their votes on the third question that they could not state with judicial certainty whether the people have accepted or not accepted the Constitution; and two members[13] voted that the 1973 Constitution is not in force, with the result that there were not enough votes to declare that the 1973 Constitution was not in force.[14]

Hence, the 1973 Constitution took effect not by virtue of a valid ratification or by the acceptance of, or acquiescence by, the people, but by the sheer technicality of failure to muster the required two-thirds vote to strike it down and declare it as not in force. Therefore, one would search for the legitimacy of the 1973 Constitution and would find it empty.

Fortunately for the 1987 Philippine Constitution, there is no question as to the validity of its ratification; hence, there is no need to discuss the Filipino People’s acceptance or acquiescence independently of the validity of its ratification.

Now, back to the main inquiry on the legitimacy of the Constitution, is the validity of the ratification sufficient to endow the Constitution with legitimacy? What about people’s acquiescence independently of the validity of its ratification? Is the vote of a bare majority in a plebiscite sufficient to bring legitimacy to the Constitution and make it binding on the whole citizenry? If so, and being a document of founding or refounding of a polity, how can the Constitution be legitimately binding on the minority who have not given their positive consent to its mandate? Does the legitimacy of the Constitution depends merely on the empirically discoverable consent of the governed or is there something more to it like the need for the intrinsic validity of the principles and rules that it embodies?

Richard H. Fallon, Jr. in his article “Legitimacy and the Constitution”[15] argues that the term legitimacy invites appeal to three distinct kinds of criteria that in turn support three distinct but partly overlapping concepts of legitimacy – legal, sociological, and moral. He writes:

“When legitimacy functions as a legal concept, legitimacy and illegitimacy are gauged by legal norms. As measured by sociological criteria, the Constitution or a claim of legal authority is legitimate insofar as it is accepted (as a matter of fact) as deserving of respect or obedience – or, in a weaker usage that I shall explain below, insofar as it is otherwise acquiesced in. A final set of criteria is moral. Pursuant to a moral concept, legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”[16]

Modern constitution-making is seen by the Federalists as a matter of “reflection and choice.” Alexander Hamilton writes in Federalist No. 1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are capable or not of establishing good government by reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”[17]

Federalism scholar Daniel J. Elazar considers constitutional choice as an art and to bring the constituency to endow the constitution with legitimacy is even a greater art because legitimacy is a commitment that cannot be coerced. He explains:

“Constitutional legitimacy involves consent. It is not a commitment which can be coerced – however much people can be coerced into obedience to a particular regime. Consensual legitimacy is utterly necessary for a constitution to have real meaning and to last. The very fact that, while rule can be imposed by force, constitutions can only exist as meaningful instruments by consent, is another demonstration that constitution-making is the preeminent political act.”[18]

The U.S. Constitution provides that “the ratification of the Convention of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”[19] The 1987 Philippine Constitution in turn provides that “this Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitution.”[20]

In modern consitutions, this act of ratification as a way of expressing the “consent of the governed” is regarded as the core of the Constitution’s legitimacy. This consensus that is manifested during ratification gives life and meaning to the phrase “We, the People” that usually begins preambles of modern constitutions. “We, the People” operates to endow the Constitution with legitimacy by announcing from the very start that the Constitution is the handywork of the people, that they are the author, and they are the ones that have breathed life into that foundational document.

[1] Angel Aguirre, Jr. & Ramsey Domingo Pichay, Postulates in Constitutional Law, Revised Edition 1992, Lex Scripta Suprema Publishers, Inc., p. 3
[2] Isagani A. Cruz, Philippine Political Law, Central Lawbook Publishing, Co., Inc. 1991 Ed., p. 11
[3] G.R. No. L-36142, March 31, 1973
[4] Chief Justice Teehankee, Concurring Opinion in De Leon v. Esguerra, G.R. No. 78059, August 31, 1987
[5] Article VII, Constitution of the United States of America
[6] Chief Justice Concepcion and Justices Makalintal, Zaldivar, Castro, Fernando, Teehankee
[7] Justices Makasiar, Antonio, and Esguerra
[8] Justices Barredo, Makasiar, Antonio, and Esguerra
[9] Chief Justice Concepcion and Justice Zaldivar
[10] Justices Makalintal, Castro, and Teehankee
[11] Justices Barredo, Makasiar, Antonio, and Esguerra
[12] Justices Makalintal, Castro, Fernando, and Teehankee
[13] Chief Justice Concepcion and Justice Zaldivar
[14] Article VIII, Section 10 of the 1935 Constitution provides that “no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court.”
[15] Richard H. Fallon Jr., Legitimacy and the Constitution, Harvard Law Review, Volume 118 Number 6, April 2005, p. 1787
[16] Ibid., at pp. 1790-1791
[17] The Federalist Papers, Federalist No. 81, (with Kesler Introduction and Notes), New American Library, 1989, p. 1
[18] Daniel J. Elazar, Constitution-Making: The Pre-eminently Political Act, Constitutionalism: The Israeli and American Experiences - Chapter 1, http://www.jcpa.org/dje/articles3/constisramer.htm
[19] Article VII, U.S. Constitution
[20] Article XVIII, Section 27, 1987 Philippine Constitution