Rewriting other parts of the Constitution?
If we are minded, as it appears we are, to rewrite our Constitution so as to re-apportion governmental powers between the national government and federal subdivisions (whether they are eventually called “states” or “regions”), then nothing less than a revision of the fundamental law is called for.
And while we are at it, parts other than those appurtenant to the branches of government, might be profitably looked into it.
The very last article of the Constitution that has to do with amendments and revisions needs rewriting. Truthfully, we do not know how Congress is to vote: Do the chambers vote separately? If they do, then the overwhelming support of an amendment or a revision in one chamber notwithstanding an be flicked away by its defeat in the other chamber.
On the other hand, if they vote together, then it is truly the majority of Congress that decides the outcome – with the possibility that the smaller chamber, the Senate, can be swamped into irrelevance.
When I asked him about this textual ambivalence, Justice Adolf Azcuna, a jurist I most sincerely hold in high esteem, candidly admitted: When the Constitutional Commission members drafted Article XVIII, they had in mind a unicameral legislature. And when the “bicameralists” won the vote, the Commission completely overlook that they had written provisions contemplating a legislature of only one house!
A similar issue attended representation of the Legislature in the Judicial and Bar Council. And perhaps, an even more fundamental question should be asked: Are we content with the modes provided for rewriting the Constitution? Should we keep the provision that allows Congress itself to vote the changes into place?
Legacy of people power
Then there is the novelty of people’s initiative.
Riding on the wave of euphoria following the EDSA People Power movement, the Commission believed that they were writing into the fundamental law what they then thought was the glorious legacy of people power.
But in this world of sin, the serpent always slithers in. We tried to exercise people’s initiative in the matter of defining political dynasties – only to be faced with the stark reality that some congressional districts were fiefdoms, indeed, and the miserly 3% required would never be mustered! How does one maneuver when one is hemmed in by this dastardly form of political feudalism?
While the late, revered and truly erudite Justice Isagani Cruz frequently complained about a “talkative” 1987 Constitution, I tend to side with those who think it said so little, and left too much for the Legislature to determine.
I probably would not have the same disposition were I more impressed by the workings of our Legislature (and the erudition of its members). Sadly, I am not. In Santiago v. Comelec, the Supreme Court ruled that the law Congress had passed on initiative did not provide for its use to amend the Constitution. That of course underscores the error of leaving so much to the determination of Congress that can frustrate the purpose and the spirit of the Constitution.
Right to bail
The Bill of Rights too needs a second, hard look.
When someone under custodial investigation freely and knowingly waives his right to be assisted by counsel, should we insist on the ceremony of asking him to be assisted by counsel so that he can say, in writing, that he does not need counsel? And then too, the cases of former President Gloria Macapagal Arroyo, Senator Juan Ponce Enrile and his companions and now Senator Leila de Lima should make us examine the constitutional principle on the grant or denial of bail.
If, as the Constitution presently provides, bail may be denied only when one is charged with an offense warranting the severest penalties (reclusion perpetua, life imprisonment and, God forbid, death) AND evidence of guilt is strong.
But the trouble is that it has become customary for us to keep incarcerated – and treated as prisoners – accused persons even before the court has determined that the evidence of their guilt is strong! And if we keep to the proposition that probable cause is all that is needed to file the Information and cause the arrest of the accused, given the precipitousness with which Informations are filed and warrants of arrest are issued, how many persons must yet suffer the ordeal of detention, the ignominy of trial – before the court and by the press, before the paucity of evidence against them is exposed and their cases, eventually dismissed?
Finally, as an educator, I am deeply concerned that the academic freedom guaranteed by the Constitution to higher education institutions is virtually cancelled out of existence by layers of regulation issuing from the Commission on Higher Education.
When CHED lays down “Policies and Standards”, and force straightjackets on administrators on the matter of the selection of members of the faculty, prescribe how subjects are to be taught, the number of meeting hours, and whether or not courses may be delivered online or not, what else is left of academic freedom?
If there is anything a revision of the Constitution can do, it is to render regulatory agencies marginal in importance, and to strengthen the academic freedom of institutions.
I have been asked to testify by a congressional hearing on Constitutional Reforms, and these are some thoughts I shall advance. – Rappler.com
The author is Vice-President for Administration and Finance of the Cagayan State University and Dean, Graduate School of Law, of San Beda College.