Why the Constitution has to be defended


For three years now, the Constitution has been under relentless attack, and ironically it is the President, whose oath of office commits him to execute and defend it, who is leading the assault.

Among others, the Bill of Rights has been disregarded in the conduct of the war against drugs, in the fight against insurgency, in retaliating against human rights defenders, and in suppressing political dissent by going after opposition figures like Senators Leila De Lima and Antonio Trillanes. The doctrine of separation of powers has been set aside, notably in the ouster of Chief Justice Maria Lourdes Sereno and in criticism by the President of independent accountability mechanisms like the Commission on Audit and the Commission on Human Rights.

And now, the sacred constitutional cow of our national territory is tossed aside in defense of a failed policy of appeasement with China.

We live in perilous times. Unfolding before us, the constitutional order is being destroyed. In the name of our children who must be saved from shabu, promising to eradicate all corruption and to end an insurgency without addressing its roots, and out of misplaced friendship to and an unfounded fear of war against China, the Constitution is being buried by a lawyer-president aided by fellow lawyers trained in sophistry and not with Socratic wisdom.

Why should we care?

Fortunately for us, retired Supreme Court Justice Vicente V. Mendoza delivered last Tuesday, June 25, the commencement speech during the recognition rites for the graduating class of the University of the Philippines College of Law.

I made sure to attend the recognition rites because we were also honoring Justice Mendoza, with the University conferring on him an honorary Doctor of Laws. The good Justice, then a member of the Court of Appeals, was my first year constitutional law professor. He taught me the basics of the constitution of governance and imbued in me an abiding and passionate love for the Bill of Rights. Since then, even as he joined and served the highest court, retiring from it in 2003, I have considered Mendoza one of my mentors in constitutional law, for sure a beacon of judicial wisdom and integrity. It was because of him, the late Professor Haydee Yorac, Dean Pacifico Agabin, the late Justice Florentino Feliciano, and Professor Owen Lynch that I decided to do my masteral and doctoral law studies in Yale Law School. As alumni of this great law school, Justice Mendoza and his colleagues introduced me to a policy science approach to constitutional law.

Thirty-three years have passed since I was in a classroom of Justice VV but I can still hear his voice rising when I recited on freedom of speech: almost shouting, this gentle intellectual urged me to speak with conviction about this great freedom. You have to love the Bill of Rights if you are to defend it successfully.

There was no turning back for me after that. And today I urge my constitutional law students to do the same and love passionately all our great freedoms.

\You have to believe in the constitutional order to defend it. Below are excerpts from the commencement speech of Justice Mendoza that argue with clarity why such belief is warranted and necessary:

“Today, I would like to talk about the urgent need to take good care of the constitutional order, lest through abuse, misuse, neglect, or indifference, it breaks down. By ‘constitutional order,’ I mean the way things have been worked out in our society by which we have been able to live and cooperate with one another in relative peace.

“Like any mortal contrivance, the constitutional order is not of limitless capacity. It cannot abide the stress and strain in which it may be subjected by the relentless testing of the limits of individual rights or the limits of governmental power, or by the tit for tat and pettiness of “little minds”. It cannot survive the transformation of the market place and the public forum into dumpsites of noxious ideas and dangerous doctrines or the use of the internet for spreading hatred, gossip, malice, meanness, or falsehood.

“Shakespeare understood the importance of order and the awful consequences of disregarding it. What he said about the order of nature in Troilus and Cressida (I. iii, 85-100) applies as well to the constitutional order:

“The heavens themselves, the planets, and this center/ Observe degree, priority, and place/ Insisture, course, proportion, season, form, Office, and custom, in all line of order . . . O, when degree is shared, Which is the ladder of all high designs, The enterprise is sick! How could. . . . The primogenity and due of birth,/ Prerogative of age, crowns, scepters, laurels,/ But by degree, stand in authentic place?, Take but degree away, untune that string,/ And hark, what discord follows.”

“Take but one degree out, and lo, what discord follows! The constitutional order is like the natural order. Shake it up and lo, what upheaval will follow.

“Order is needed because without order there can be no peace. Of course, peace may be brought about by a violent order or by an order maintained by force but that is not the peace we want. That’s the peace of the graveyard.

“What we want is peace which is the result of a constitutional order, the way of life we have chosen and hope succeeding generations will carry on.

“This order rests on a delicate balance of liberty and authority which requires for tis maintenance on alert and vigilant citizenry, to whom public discussion is a public duty and a public office a public trust. For, indeed, freedom isn’t freedom till it is exercised.

“Unfortunately, there are some who find freedom to be isolating. They find freedom to be the loss of guidance and support, and for this reason, are willing to exchange their freedom for the security offered by authoritarianism. In his time, Claro M. Recto, president of the 1934 Constitution, railed against the “little minds”, who he said, needed to be told that after Independence the duty to think for themselves had begun. Justice Brandeis warned that the greatest menace to freedom is an inert people. Freedom should be an opportunity for realizing one’s dignity as an individual and one’s worth as a member of society . . .

“Indeed, intolerance, good will, good faith, and self-restraint in the exercise of rights and the use of powers are needed to maintain the balance of freedom and authority. There are neither absolute rights nor absolute powers in the constitutional order. And a society which fails to observe these norms will ultimately decay from anarchy or atrophy .
. .
“The duty to care for and nurture the constitutional order is an imperative of our time. We can practice what the Greeks in ancient times did, by which, through reflection on their shared cultural inheritance, they created a normative universe or nomos. What we have to do with our own values, traditions, and culture is to observe them constantly. The practice of civic virtues can develop into a culture of law observance and create a nomos. In turn, the nomos can change the growing culture of accountability, where every individual will be responsible to his fellowmen for his actions . . .

“Take care of the constitutional order and it will take good care of you. Abuse it and it will break down, then anarchy will follow and an authoritarian regime will not be far behind.

“I cannot think of any class in our society to whom the duty of protecting and taking care of the constitutional order should be especially addressed other than the lawyer class. By education and training, they are the special guardians of the constitution . . .

“To the graduates: With high hopes and fervent prayers, we may yet witness in our time the Reign of Law and Justice in our land.”