A defective constitution
This is the fourth and last part of a series of essays highlighting the defects of the 1987 Constitution. Since the government seems to be in the mood, as of the moment anyway, for charter change, this commentary ought to be considered by Congress sitting as a constituent assembly, assuming that the administration’s plan to amend the current charter really takes off.
A day before Valentine’s Day this year, two of the surviving drafters of the 1987 Constitution attended an assembly at the University of the Philippines in Diliman where they denounced planned attempts of Congress to amend the charter. Together with other allies of ex-President Corazon Cojuangco-Aquino, they branded charter change as an attack against national sovereignty and fundamental freedoms. One of them even declared that charter change is anti-Filipino.
Good grief! As pointed out in the previous essays, the 1987 Constitution is not the perfect charter some of its surviving drafters allege it to be, and that substantial amendments to it are definitely in order. In that sense, therefore, it is absurd to brand charter change as an attack against national sovereignty and fundamental freedoms, and to equate it to being anti-Filipino. The conclusions peddled by those who participated in that assembly are perfect examples of non-sequitur.
Anyway, several defects in the 1987 Constitution were taken up in the three previous essays in this series. This installment tackles the other remaining effects.
Pursuant to the principle of checks and balances obtaining in a democratic and republican system of government, each of the three branches of the government is vested with powers to prevent the other coordinate branches from becoming abusive. That way, government power is never concentrated on any single branch of government.
Under the 1935 and 1973 charters, the Supreme Court is empowered to promulgate rules governing court procedures. Those charters also provide that the legislature has the power to amend those rules. The power of the legislative to amend those rules is one of several legislative checks against judicial abuse. On many past occasions, the legislature enacted laws which amended rules of court procedure promulgated by the Supreme Court.
The 1987 Constitution, however, has a problematic version. Section 5(5), Article VIII thereof retains the power of the Supreme Court to promulgate rules of court procedure, but it is silent on whether Congress may amend such rules. In an obiter dictum (a non-binding, unsupported side remark) found in a decision of the Supreme Court involving a death row convict, it was mentioned that the failure of Section 5(5) to retain the power of the legislature to amend rules of court procedure means that Congress may not, under the 1987 charter, amend such rules.
One of the members of the 1986 Constitutional Commission which drafted the 1987 Constitution is Father Joaquin Bernas. In his treatise on the 1987 charter, Bernas points out that the failure of Section 5(5) to empower Congress to amend rules of court procedure promulgated by the Supreme Court was a clerical oversight, and it was not the intention of the Commission to take away that checking mechanism from Congress.
Further, Bernas cites Section 10 of the Transitory Provisions of the 1987 charter, which provides, among others, that the existing rules of court procedure in the country “shall remain operative unless amended or repealed by the Supreme Court or by the Congress.” This is a clear indication that it was never the intention of the 1987 Constitution to take away the power of Congress to amend rules of court procedure promulgated by the Supreme Court.
Moreover, Congress enacted Republic Act No. 9285, or the Alternative Dispute Resolution Act of 2004, which amends numerous provisions of the existing rules of court procedure promulgated by the Supreme Court. This law has been repeatedly implemented by the Supreme Court since its enactment. If Congress no longer has the power to amend rules of court procedure, then how does one explain the validity of Republic Act No. 9285?
If the principle of checks and balances is to be upheld, Section 5(5) must be amended to retain the power of Congress to amend rules of court procedure promulgated by the Supreme Court.
Another defect in the 1987 Constitution is its failure to specifically state how officials of the Office of the Ombudsman, other than the ombudsman himself, as well as members of Congress, can be made accountable for criminal or administrative wrongdoing.
There is an on-going legal dispute regarding the authority of the president to impose disciplinary sanctions on a deputy ombudsman. The ombudsman insists that disciplinary jurisdiction over the deputy ombudsman is vested by law exclusively in the ombudsman himself. President Rodrigo Duterte, however, believes otherwise.
The jurisprudence on this issue is on the side of the ombudsman’s exclusive jurisdiction, but this legal doctrine is precarious because of the close 8-7 vote taken by the Supreme Court on this issue. This constitutional impasse could have been avoided if the 1987 Constitution had clearer provisions in this regard.
Another on-going legal dispute concerns the power of the ombudsman to remove an incumbent member of the House of Representatives for an infraction of law committed by such member. The Office of the Ombudsman believes it has the power to do so. Congress, however, insists otherwise, and maintains that Congress has the exclusive power to unseat members of Congress. Again, this constitutional impasse could have been avoided if the 1987 Constitution had been more explicit in its provisions.
Finally, the creation of the Judicial and Bar Council (JBC) under the 1987 Constitution ought to be revisited. The power of the JBC to decide who may be considered by the president for appointment to judicial posts is an awesome power exercised by only seven individuals. That’s too much power vested in one body composed of unelected officials. If too much power should not be vested in any of the three branches of government, there is greater reason not to vest it in a smaller body like the JBC.