• Who should amend the Constitution?

    1
    AL S. VITANGCOL III

    AL S. VITANGCOL III

    The House of Representatives’ standing committee on constitutional amendments will be conducting a public consultation on November 16, 2016 to determine the public sentiment on the following issues:

    1. Whether it is necessary to amend or revise the Constitution;

    2. What is the preferred mode of amendment or revision; and

    3. What are the specific proposals, if any.

    The invitations for the committee hearing were sent out as early as October 10, 2016.

    However, on October 29, 2016, President Rodrigo R. Duterte saidthat he would resign as President as soon as the country makes the shift to a federal form of government. Thus, he urged Congress to speed up the process of amending the Constitution.

    The President’s words

    These were the exact words of the President during the launch of the Comprehensive Reform and Development Agenda for ARMM and Other Conflict-Affected Areas in Regions IX, X, XII:

    “Akobastasabikopagdatingngpanahonbilisanlangninyo. Kayongmgacongressmen bilisanninyoang federal at maghanaptayongconfiguration nggobyernonatalagangpowerfulkanya-kanyang region. Bahala kayo kungano gusto ninyodito. Bilisanlangninyo x xx.”

    (I tell you, time will come, just hurry up. You, the congressmen, hurry up with the federal system and look for a configuration of a government that will make the regions really powerful. It is up to you what you want to do with this. Just hurry up x xx.)

    “Yung federal type provides [for]a President. Pagnataposyanngtatlongtaon ay asahanninyo, I give you my word. Pagnandiyanna yang framework, I will resign to give way to a new President x xx.”

    (The federal type provides for a President. If this is finished in three years, then expect that I give you my word. If the framework is already there, I will resign to give way to a new President x xx.)

    “Hindi akomaghintayng six years. Just hurry up the process. Pagkanandiyan na yung federal x xx at more power yan sa ibaba, less power doon sa itaas, at kayo naangbahala kung anoangnakitaninyodito.”

    (I will not wait for six years. Just hurry up the process. If the federal system is already there x xx with more power in the regions, less power in the national,it will be up to you what you will see here.)
    Verily, the President has given his marching orders to Congress.

    The three issues

    My insight tells me that Congress will just follow the desires of the President, regardless of the outcome of the scheduled public consultation, as mentioned above.

    On the first issue, whether or not it is necessary to amend or revise the Constitution, the answer will be a resounding “yes”.

    On the second issue, on the preferred mode of amendment or revision. The President said, “You, congressmen,” which means he prefers the constitutional amendment by constituent assembly. Of course, I have my reservations concerning this mode of amendment.

    And the third issue, on the specific proposals, if any. Well, the President has long been harping on the federal form of government. So, expect our congressmen to just work on it. Nonetheless, there are other important aspects of the Constitution that should likewise be revised.

    Amending the Constitution

    In my column of October 8, 2016, I briefly touched on the topic of amending the Constitution. Let me reprint a portion of that here.

    “The present administration prefers the incumbent congressmen to amend the Constitution and shift to a federal form of government. However, there is always that fear, that the legislators will introduce amendments that will only protect their own interests and not that of the Filipino people.”

    “Historian and award-winning author Gordon S. Wood, in his book The Creation of the American Republic, 1776-1787, discussed the fundamental transformation of American political thinking. He illustrated how the founding fathers of the United States rethought their political attitudes and the basic issues of governance.”
    “According to Gordon, a brilliant and visionary lawyer by the name ofJames Wilson, who later became an associate justice of the Supreme Court of the United States, laid down the first principles of popular sovereignty during thePennsylvaniaratifying convention of the 1787 Constitution of theUnited States. Wilson opined that,“Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that, in our governments, the supreme power was vested in the constitutions… This opinion approaches a step nearer to the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as well as right.”

    “The right of the Filipino people to exercise their sovereignty in amending the Constitution finds refuge in the dissenting opinion of then Justice Puno in the consolidated cases of Lambino et. al. vs. Comelec (G.R. No. 174153) and Binay et. al. vs. Comelecn (G.R. No. 174299). Then Justice Puno, in his usual patriotic self, rationalized:”

    “I wish to reiterate that in a democratic and republican state, only the people is sovereign–not the elected President, not the elected Congress, not this unelected Court.Indeed, the sovereignty of the people which isindivisiblecannot be reposed in any organ of government.Only its exercise may be delegated to any of them.In our case, the people delegated to Congress the exercise of the sovereign power to amend or revise the Constitution.If Congress, as delegate, can exercise this power to amend or revise the Constitution, can it be argued that the sovereign people who delegated the power has no power to substantially amend the Constitution by direct action?If the sovereign people do not have this power to make substantial amendments to the Constitution, what did it delegate to Congress?How can the people lack thisfraction of a powerto substantially amend the Constitution when by their sovereignty,all poweremanates from them?It will take somemumbo jumboto argue that the whole is lesser than its part.”

    “Indeed, the Filipino people have the sovereign power to take a direct action to amend the Constitution, and at the same time protecting the said Constitution from the unscrupulous hands of traditional politicians.”
    Rightly so, the public should insist that any constitutional amendment must come from the Filipino people themselves–and not from their “elected” congressmen.

    Section 2, Article XVII of the present Constitution allows for this mode of amendment or revision.

    Other revisions and amendments

    Introducing a federal system of government will entail a revision and/or amendments of the following articles of the present Philippine Constitution: Article II – Declaration of Principles and State Policies; Article VI – Legislative Department; Article VII – Executive Department; Article VIII – Judicial Department; and Article X – Local Government.

    Revising these major areas of the Constitution is not an easy task. This is in fact a major overhaul of the Constitution. Hence, it might be better to draft an entirely new Constitution rather than amending or revising the existing one.

    If Article VIII will be revised, then it will be better if the jury system can be adopted as part of our judicial system.
    I wrote before that the sad reality is that cases are not decided based on the merits but on the prevailing political and “economic” conditions. More often than not, the judge’s (or even justices’) decisions are in accord with the pronouncements of the appointing authorities and those in power. This is a real dilemma in a society where the judges are the sole decisionmakers in the outcome of a case. There will always be a judge (or even a justice) who would succumb to the offer of money, or even power, to thwart the outcome of a case.

    This will not happen if the resolution of cases will be handled by a group of jurors, and not by a single judge or justice.

    How a jury system works

    Typically, there are two different juries – a grand jury and a trial jury.

    A grand jury is composed of a number of civic-minded citizens (called jurors) who have chosen to work for the good of their communities by evaluating the operations of the local government units and the performance of government officials. The grand jurors are in fact the real agents of change.

    The grand jury issues criminal indictments to require the defendants to go on trial. The grand jury determines the existence of probable cause. It investigates allegations of a public official’s corrupt or willful misconduct in office, and when warranted, files an accusation against that official. The grand jury does the work of an investigating prosecutor and that of the Ombudsman. Once there is an indictment, or accusation, from the grand jury, then the case goes into trial. The advantage here is that the indictment is a product of a collegial body (the jury) and not of a single soul (prosecutor or Ombudsman, who is susceptible to “external influence”).

    A trial jury is then formed through a selection process called “voir dire” where prospective jurors are examined to determine their qualifications and suitability to serve on a jury. Once a jury is finalized, the trial can commence and the jury receives and evaluates the evidence presented by the prosecution and the defense.

    The jury then decides to convict or acquit –- on a unanimous basis. The fate of the accused now lies in the hands of several of his peers –- not in the hands of a sole judge or justice.

    In a jury system, the role of the judge is limited to sentencing. Once a guilty verdict is handed down by the jury, the judge determines the proper sentence, as governed by prevailing statutes and applicable laws.

    The trial jury is disbanded once the case on hand is disposed of. The jurors are properly compensated for their time away from their usual work. Able and qualified citizens are required to be on jury duty at least once in their lifetime.

    I will be analyzing and discussing the other applicable and significant revisions and considerable amendments in the Constitution in my future columns. I urge the readers, and the public at large, to suggest and give their own views on these matters. Any change in our Constitution will surely have an effect on each and every Filipino. Let your voices be heard.

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    1 Comment

    1. Dylan D Dipasupil on

      It is good that Mr Vitangcol, analyzed the defects in our current justice system, a sub system of our political-economic system.

      In this regard, I propose that our Penal System (the Revised Penal Code), a sub-sub-system of the justice system should also be reviewed. A new Penal System should reflect our Asian views, value system and culture; and effective in correcting not only the offender, but also the community or the whole society as well.

      For example: Singapore – a first world nation, dominated by Chinese race (with Malay and Indian minorities) adopted a modern/revised version of (somewhat) Sharia Penal system. They are still caning offenders in public, because they know very well that “face value” is very important to Asians. This is in contrast to corporal punishment preferred by Caucasians. For Asians, honor and face value, and not bodily harm are the more important aspect of human life.

      In light of the current trend of talks on Systemic Changes, how about if law luminaries write dissertations on this as well?