In a strongly-argued column, Times columnist Rigoberto D. Tiglao asked last Monday, “Are we seeing a New Revolution led by Supremo Duterte?” He suggested that we may now be in the middle of such a revolution, and that it may be our last chance to change the status quo. Many of us have long dreamed of such a revolution, but I have always thought, not mistakenly I hope, that it would be waged by the people themselves, or at least with their support and participation.
If PDU30 has indeed launched a revolution, how many of us see it in the spate of extrajudicial killings, the shoot-to-kill and “surrender or else” orders? Until now most of us expect our President, pursuant to his oath, to preserve and defend the Constitution, execute the laws, do justice to every man, and consecrate himself to the service of the nation. Very few seem prepared to paper over the explosion of violence and blood-letting in the name of “change.”
Chief Justice Lourdes Sereno has found it necessary to tell judges who have been publicly linked to the illegal drugs trade not to surrender to the police unless they are facing charges and the court has ordered their arrest. Many others have been emboldened to raise their voices, after it became known that the President’s “hit list” contained names of dead and long retired judges and politicians.
Archbishop Fernando Capalla, archbishop emeritus of Davao, former president of the Catholic Bishops’ Conference of the Philippines and co-founder of the Bishops-Ulama Conference, has been compelled to issue a public statement vouching for the character and innocence of former Mayor Omar Ali of Marawi City, who has been falsely linked to drug runners. Ali has written PDU30 asking him to revalidate his information linking him to the drugs trade.
“Be it known publicly that as former bishop of Marawi and Iligan (1977-1994) I have known Omar Ali as a good person and a good Muslim and of good standing in the National Transformation Council and of his innocence as well,” Capalla said.
Obviously, errors and excesses have been committed. We can only hope that PDU30 promptly corrects any and all mistakes. I have no doubt he will. But leaving this issue for now, as I promised in my last column, I would like to draw PDU30’s attention to some constitutional issues. There is no need to experiment with inverted federalism; there is so much in the presidential system that needs immediate fixing.
The Constitution guarantees the supremacy of civilian authority over the military and names the Armed Forces of the Philippines as the protector of the people and the State. “Its goal is to secure the sovereignty of the State and the integrity of the national territory.” To this, it may be useful to add, “AND TO SAFEGUARD THE LEGITIMACY OF ITS INSTITUTIONS.”
Sec. 8, same Article, provides that “the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.” It may be necessary to require THE PRESIDENT TO REPORT TO CONGRESS ANNUALLY ON THE IMPLEMENTATION OF THIS PROVISION.
Sec. 12, same Article, provides: “The State recognizes the sanctity of human life and shall protect and strengthen the family as a basic social institution. It shall equally protect the life of the mother and the life of the unborn from conception…”
This clearly prohibits the State from interfering in the right of women to bear children. But since the Supreme Court has ruled, erroneously, that the Constitution does not prohibit population control, IT MUST MAKE THAT PROHIBITION INFINITELY CLEAR AND UNMISTAKABLE. POPULATION CONTROL VIOLATES THE CONSTITUTION AND STATE CONTRACEPTION IS POPULATION CONTROL.
Presidential or parliamentary govt?
This question has to be raised at the outset. We must avoid the mistake of Cory Aquino’s constitutional commission, which began drafting a constitution for a parliamentary government but in the end voted for the presidential system, without making sure that every provision in the draft was adopted to fit the presidential system.
If we choose the parliamentary system, then the Constitution must be thoroughly revised. If on the other hand we decide to keep the presidential system, then we must fix its most obvious flaws. We could begin with the presidency.
1) A majority President
To be elected President, it is not enough to get the highest number of votes among the candidates. One must garner at least 50 plus 1 percent of all the votes. If there are more than two candidates, and no one gets the desired number of votes on the first ballot, there should be a second ballot (a run-off) between the first two candidates with the most number of votes to produce a winner.
Although we talk of PDU30’s “landslide” victory after all his rivals conceded their defeat, his 38 percent win makes him a minority President still. The need to elect a majority President alone will discourage nuisance candidates, and encourage the return of the two-party system, even without legislating it.
2) President and vice president must come from the same ticket
The last two presidential elections gave us a President from one party and a vice president from another. This produced built-in conflict, instead of cooperation and partnership. This could have been avoided had we adopted the US system in which a vote for the President is a vote for his/her vice president. The voters then would always elect a team, not two rivals for the highest office.
3) Define natural-born citizen more clearly and avoid nuisance candidates
It is not enough for the Constitution to say that no person may be elected President unless he/she is a natural-born citizen; it must say exactly who is a natural-born citizen and who is not. It must say that A FOUNDLING OF NO KNOWN PARENTAGE IS NOT A NATURAL-BORN CITIZEN, and THAT NO PERSON WHO HAS BEEN A CITIZEN OF ANOTHER COUNTRY FOR ANY PERIOD OF TIME MAY BE ELECTED PRESIDENT, VICE PRESIDENT O MEMBER OF CONGRESS.
Prior to the election, the Commission on Elections, not any other tribunal, should have the sole and final authority to determine whether or not a candidate fulfils the constitutional qualifications for the office.
4) Revive and protect the impeachment process
Impeachment is a mechanism adopted by the Constitution to remove certain officials who enjoy immunity from suit while in office. These include the President, the vice president, the members of the Supreme Court, the members of the Constitutional Commissions and the Ombudsman. They may be impeached for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. The House of Representatives shall have the exclusive power to initiate all cases of impeachment; the Senate, the sole power to try and decide all cases of impeachment. But no impeachment proceedings shall be initiated against any official more than once within a period of one year.
Now, in 2003, two impeachment complaints were filed against then Chief Justice Hilario Davide Jr. The first one failed to prosper in the House Committee on Justice. The second gained the support of more than one-third of all the members of the House, sufficient to transmit the Articles of Impeachment to the Senate for trial. But a petition was filed before the Supreme Court questioning the constitutionality of the second complaint, arguing that “no impeachment complaint shall be initiated against the same official more than once within a period of one year.”
Although a previous complaint had been filed against Davide, this did not become a “case initiated by the House” and sent to the Senate for trial. But in order to save Davide, the Court declared the complaint unconstitutional and barred the House from impeaching the Chief Justice. This is now known as Justice (now Ombudsman) Conchita Carpio Morales’ ruling in Francisco v. the House of Representatives. As a result of this ruling, an impeachable official can now avoid impeachment by initiating, through a third party, a worthless complaint against himself or herself, so that after it has been thrown out by the House for being insufficient in form or in substance, no serious impeachment complaint could be filed against him or her for a period of one year.
THIS HAS DESTROYED THE IMPEACHMENT PROCESS.THE CONSTITUTION MUST NOW MAKE IT ABSOLUTELY CLEAR THAT AN IMPEACHMENT COMPLAINT DOES NOT CONSTITUTE A CASE OR AN IMPEACHMENT PROCEEDING UNTIL IT IS ENDORSED BY THE HOUSE TO THE SENATE FOR TRIAL, AND THAT NO OFFICIAL ACQUIRES THE ONE-YEAR IMMUNITY FROM IMPEACHMENT UNTIL AND UNLESS HE/SHE HAS BEEN IMPEACHED BY THE HOUSE ONCE BEFORE THAT SAME YEAR.
5) Enlarge the Senate, elect senators by region or abolish it altogether
We have a Senate of 24 members representing a population of 100 million. Given that senators are elected by the same voters that elect the President, the latter ends up electing candidates who are “popular” for no other reason than that they are “popular” (Bagehot), or who simply buy their votes from the PCOS syndicate or the warlords in Mindanao. Either we abolish the Senate for having become irrelevant or we increase its members to be elected by region rather than nationwide. No region would then be deprived of representation.
6) Purify the party list system or scrap it
Every member of Congress is supposed to represent everyone in his jurisdiction. And every citizen is supposed to be represented by his/her member of Congress. Why should some citizens be represented by one territorial and another party list or sectoral member, while everyone else is represented by only one? This objection must be overcome, if the party-list system is to be maintained.
7) Abolish term limit and define the limitations on political dynasties
Some delegates to the 1987 Constitutional Commission believed that by instituting term limits, they would be “democratizing access to political office.” This merely resulted in wives succeeding their termed-out husbands, or sons and daughters succeeding their fathers or mothers, and an over-expansion of family dynasties at all levels. In the 24-member Senate, we found two members of one family sitting together at the same time.
THE TERM LIMIT HAS PRODUCED THE EXACT OPPOSITE OF ITS DESIRED RESULT. EXCEPT FOR THE PRESIDENT AND VICE PRESIDENT, WHO SHOULD BE LIMITED TO ONE TERM, WE SHOULD LEAVE IT TO THE VOTERS TO DECIDE HOW LONG OTHER OFFICIALS COULD STAY IN OFFICE, WITHOUT BRINGING IN THE REST OF THEIR FAMILIES WITH THEM. THE CONSTITUTION MUST STATE IN UNMISTAKABLE TERMS WHO AND HOW MANY MEMBERS OF ONE FAMILY COULD SEEK PUBLIC OFFICE AT THE SAME TIME.
8) Limit the jurisdiction of the Supreme Court, strengthen the qualifications for Justices, abolish the Judicial Bar Council, submit all judicial nominations to the Commission on Appointments, let the Justices serve for life and let them elect their own Chief.
To relieve the Supreme Court of its undue burden, the Constitution should limit its jurisdiction to purely constitutional issues and allow the Court of Appeals to handle all appeals from the lower courts. No one should be appointed to the High Court unless he/she has been a judge of a lower court or engaged in active court practice or taught law at graduate school level in any law college of law for at least 15 years. The Judicial Bar Council should be abolished, and all court appointments should go through the Commission on Appointments. The members of the Supreme Court should hold their offices during good behavior, and elect the Chief Justice from among themselves.
These proposals are both tentative and illustrative. But they show the Constitution could use some timely amendments, without playing around with an inverted federal structure to replace our unitary Republic.