Economics and the Constitution

The general rule is: less is more. And when dealing with a subject whose nature is inherently about the scarcity of resources, i.e., economics, then less is definitely more.

Apparently, any talk on constitutional changes inevitably zeroes in on the Charter’s economic provisions. As usual, lawyers are blamed for whatever flaws are perceived therein. But really, a rewrite by businessmen or economists can hardly be said to be a well-thought through solution.

As one of my more astute colleagues at the University of Asia and the Pacific School of Law and Governance, Vida Gruet, puts it: “I think I have 400 years of history on my side when I say that the best constitutions are written by those that understand that the way a State should deal with the economy is to not write it in the constitution at all.”

Indeed. Some things are better off constitutionally left unsaid, leaving to the elected Congress to deal with the matter in the way it deems best.

Actually, the Constitution — by its structure and orientation towards natural rights — already has provisions significantly affecting the economy. There is really just no need to keep ramming further specifics into it.

The most important of those provisions is the most famous one, one that first year law students are required to memorize: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.” (Article III.1). This is the crucial, the core, statement of individual right that the entire structure of the Constitution essentially seeks to protect.

This statement on the need to protect “property” is traceable to the Lockean idea of an inherent natural right, founded on a good in itself and also by which the individual is able to maintain his life and liberty vis-a-vis the State. To put it in Alexander Hamilton’s words: “The man who has control over another man’s subsistence also exercises control over his will.”

Article II’s standing principles are merely an elaboration of the foregoing: “just and dynamic social order,” “prosperity and independence of the nation,” promote “full employment, a rising standard of living, and an improved quality of life for all,”; “free enterprise,” and so on.

Other “economic” constitutional provisions are those regarding the protection of contracts, the taxing power of Congress, and the ability of the president to negotiate trade agreements and foreign loans.

It needs pointing out that those provisions, while indeed having a no insignificant effect on the economy, are structural in nature. In other words, in keeping with the fact that a good constitution doesn’t pretend to give the answers but merely provides a pragmatic and coherent process by which the people can arrive at the answers themselves.

Compare those foregoing provisions with that found in Article XII.1: “The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and ser-vices produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

“The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.”

The foregoing are not mere principles, they are specific instructions and it effectively do two things: the first is that it ties the hands of Congress to a particular economic policy, one that leaves no room for adjustment regardless of prevailing circumstances; and, finally — and more disconcertingly — it opens itself up to being interpreted as an invitation for the Supreme Court to engage in policymaking when the latter inherently has no business doing so.

Because, assuming that Congress made a law setting an economic policy of full industrialization but seemingly detached from agriculture, which the Executive Branch is constitutionally bound to execute, does this mean the Supreme Court, by authority of Article VIII.1, can overturn such legislation and instead demand economic legislation that the latter interprets to be more in keeping with the Constitution?

If so, can the Supreme Court now tell the other branches of government that its measures are too protectionist or vice-versa, too free trade or vice-versa, too fiscally prudent or vice-versa? That’s really an eccentric way of doing things, considering the Constitution demands the Supreme Court be populated by lawyers only and not economic or governance experts.

Frankly, we can vastly improve the Constitution simply by deleting Arts. XI to XV (the “impeachment provisions” could be placed under the General Provisions).

Really, if people want a Constitution more in tune with economics, the best way to do that is to forget about it. n

JEMY GATDULA is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence https://www.facebook.com/jigatdula/ Twitter @jemygatdula