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Text and context in Charter change debate

The consultative committee completed last July 3 the draft of the proposed federal constitution. The draft was due to be submitted yesterday to the President for his approval. The President will then present it to Congress for consideration as the proposed mode to amend the constitution is through constituent assembly, that is, Congress will convene to amend the Constitution.

What the President will receive, which I call the Puno constitutional draft, is only a working draft and as such Congress, as a constituent assembly, can use it merely as a reference material. It is in no way bound by the contents of the proposed draft. However, it is wise and prudent for Congress to seriously take into account the proposals contained there since they were crafted by some of the best minds in the country. Besides, if the President adopts it as his own proposal, then it will have a big influence on Congress. As some point, the Puno constitutional draft will become the Duterte constitutional proposal, and if Congress approves it and the people ratify it in a plebiscite, it will become known as the Duterte Constitution.

I know personally and have worked with many of the drafters, including  its most senior leaders former chief Justice Reynato Puno, whom I worked with when he was head of the Supreme Court, and former Senate president Aquilino Pimentel and former assemblyman Reuben Canoy, who are both from my hometown Cagayan de Oro and whom I have known for more than 40 years.

I have also collaborated with Dean Julio Cabral Teehankee and Local Government Development Foundation executive director Edmund Soriano Tayao. Fr. Ranhilio Aquino is my dean at San Beda’s Graduate School of Law, while I have known former Integrated Bar of the Philippines president Roan Libarios since he was editor of the Philippine Collegian. Finally, Antonio Arellano, with his deceased companions Larry Ilagan and Marcos Risonar, is one of my martial law heroes. These are good people, patriots all, for sure most of them long-term advocates of constitutional change, and their work deserves respect and intelligent scrutiny.

With this column then, I begin a series on the proposed constitution of the Federal Republic of the Philippines. In this series, I will analyze both the text and the context of the proposed constitution. While I will be objective, independent, and non-partisan, I do this analysis as an advocate of federalism, democratic values, the strongest guarantees on human rights, and social justice.

I do this also as a constitutional law professor teaching this subject in eight law schools, including in two graduate schools of law. Thus, I have made sure to ground my analysis on historical and comparative literature. Finally, my analysis will not be naïve and look only at text. Strongly influenced by Yale Law School Professor W. Michael Reisman, I have always made the distinction between  the black letter law or  mythical system and the operational code where power and authority clash and hopefully integrate as legal and policy (contrary to what is taught in law thesis class, they can never be separated) decisions are made.

In subsequent columns, I will pay proper attention to the textual details of the Puno constitutional draft. I will use the official text for that purpose. But in this column, I emphasize two aspects of the context of our ongoing charter change. First, how constitutional change might come about, the process of adoption. Second, the issue of president Duterte being able to run again as president under the new constitution.

On how Charter change will come about, the 1987 Constitution is actually quite straightforward. For Charter change via constituent assembly, it can only be done if both houses of Congress first convene as such assembly. They can debate together or separately the proposed changes but must vote separately with three-fourths of a vote in each chamber necessary to approve amendments or a new constitution. 

Deviating from this procedure will render the exercise illegitimate from the beginning, but the Supreme Court decision on the quo warranto petition against Chief Justice Sereno is a strong indication that an innovative, some day distorted, interpretation of straightforward constitutional text can be found to justify a political outcome. 

In other words, I think that constitutional change is possible to happen even if the Senate does not participate. All that the House of Representatives has to do is to submit a draft constitution to the Comelec for approval in a plebiscite. Once the plebiscite is done, and the people approve the constitution, the political question doctrine can  be used by the Supreme Court to legitimize an unconstitutional adoption of a new constitution.

On whether President Duterte can run again, whatever the intentions of the drafters (and most of them are on the record saying that Duterte can no longer run) does not matter. The text controls; if there is no absolute, explicit ban on who can run under the new constitution, anyone can run­—all incumbents, all ex-presidents. Not even a ban on reelection is enough; that could be interpreted as applying only to 1987 Constitution positions as nobody is being reelected under the new constitution in its first elections.

 The only language that is clear enough is this: “No person who served as president under the 1987 Constitution shall be qualified to run and be elected as president under this constitution. Presidents Fidel Ramos, Joseph Estrada, Gloria Arroyo Macapagal Arroyo, Benigno Simeon Aquino III, and Rodrigo Duterte are hereby permanently and perpetually disqualified from running and to be elected as President of the Federal Republic of the Philippines.” Even this language could be subverted by a Supreme Court who could use the political question doctrine to allow all these former presidents to run or to legitimize the victory of a former or incumbent president. 

These scenarios are my analysis of the context of our constitutional debate. That is why, no matter how attracted I am to some of the ideas in the text offered in the Puno constitutional draft, I will wait until the scenarios play out in full before I make my decision on supporting or rejecting constitutional change. For sure, I am not afraid of such a change but certainly, for our sake and for the sake of future generations and of our country, we must proceed on this matter cautiously, rationally, with clarity of mind and purpose, always with the national interest and the greater common good in mind.

Changing the constitution is a whole-of-country project, an arduous and challenging task.It is my hope that my Eagle Eyes series on Charter change, on the text and context of the Puno constitutional draft, will assist everyone as we move forward with this debate.

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Topics: Rodrigo Duterte , Congress , Julio Cabral Teehankee , Reynato Puno , Ranhilio Aquino
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