Imperfect Constitution

Constitution is the Supreme Law of the land. It is the very framework of a certain government in which the same is being used as the basis of all. What if there are ambiguities? Questions that can only be solved by overhauling the whole constitution.

During our review class on Political Law, our Professor, Atty. Radan presented an article which concisely   discussed some vagueness in our current constitution. Just want to share it with you for your reflections and academic purposes.

Constitutional ambiguities MY FOUR CENTAVOS By Dean Andy Bautista (The Philippine Star) Updated November 14, 2009

As the country continues to repair and rehabilitate the infrastructure damaged by Ondoy, Pepeng and Santi, we should not lose sight of another “clean-up” which we will need to undertake at some point in the future — that of the Constitution. Concededly, the cause of Charter change is not timely given the current partisan atmosphere. Unfortunately, it has been equated to term extension and efforts to cling to power. Of course, Charter change is more than that. But given the brazen attempts to ram it thru, this oversimplified association is perhaps forgivable. However, I am confident that a more sober, less shrill discussion on the subject will take place sometime soon.

This week’s column will not tackle the complex topics of the proposed shift from a presidential to a parliamentary system or a unitary to a federal form of government. That will need to be discussed in a more extensive, in-depth manner. Rather, I wish to focus on the editorial lapses in the 1987 Constitution. For in their haste to “pass the paper” to President Cory, the Commission failed to “dot the i’s “ and “cross the t’s” of the entire document.

The most prominent omission is found in Article 17 on whether or not Congress needs to vote jointly or separately to propose an amendment or revision of the Constitution. The problem arose when, at the last minute, the Constitutional Commission voted 25-24 to retain a bicameral (as opposed to a unicameral) Congress. However, the Commissioners forgot to make corresponding changes to the other provisions that were impacted by the vote. It may interest the reader to know that there are four provisions which expressly provide for separate Congressional voting: 1) Choosing the President in case of a tie; 2) Determining the President’s disability; 3) Confirming the nomination of the Vice President; and 4) Declaring the existence of a state of war. On the other hand, there is only one provision directing Congress to vote jointly: Revoking or extending a proclamation suspending the privilege of the writ of habeas corpus or placing the Philippines under martial law.

Instead of compelling the Supreme Court to enact a judicial amendment, we should fix this oversight through one of the modes recognized in Article 17.

Similarly, the composition of the Judicial and Bar Council (“JBC”) needs to be amended to reflect the bicameral nature of Congress. Currently, the Constitution only provides for a “representative of Congress” as one of the JBC members. To remedy the situation, the JBC currently allows the chairpersons of the Senate and House Committees on Justice to attend its meetings but they are only collectively entitled to one vote. This omission requires a Constitutional amendment.

There is of course the pending issue of whether a former President (as opposed to the incumbent) can run again for the Presidency. As discussed a few columns ago, some argue that the sentence “the President shall not be eligible for any re-election” is unclear. A quick fix is to change the article “the” to “a” or to insert the word “incumbent” before “President”.

There is also the issue of presidential succession in a no-election scenario. Also discussed in an earlier column is the potential vacuum that may occur if no President-elect is proclaimed prior to the end of the term of the sitting President. This may be cured either by legislation or by amending the Constitution.

Finally, there is the issue on when an impeachment proceeding is considered “initiated”. Because of the ambiguity, the Supreme Court ruled in Francisco v. House of Representatives that initiation occurs upon the filing of a complaint of a Representative or any citizen upon endorsement by a Representative. Recall that this case involved the impeachment case filed against then Chief Justice Hilario Davide. Following the Oliver Wendell Holmes dictum that “hard cases make bad law”, this interpretation leads to the possibility of a sham complaint being filed to trigger the one year prohibition. My four centavos is to amend the Constitution and explicitly provide that initiation only occurs upon filing by the House of Representatives of an impeachment complaint in the Senate.