Since it seems that our national leadership is minded on revising the Constitution and not just amending it, there are some other provisions that should be revisited—to forestall the need of tinkering with the fundamental law very often. But I find it necessary to ask clarification from some of the very vocal proponents of constitutional revision in favor of federalism that, I pointed out in an earlier column certainly has many merits to commend it. What is all this talk about “the French model”? I teach Comparative Constitutions at the Graduate School of Law of San Beda College and Comparative Governments at the Graduate School of the Cagayan State University and I have never associated France with a federal configuration, even granting the ambivalence of the ascription “federal”. The saga of the French Constitution has to do rather with the powers of the President vis-a-vis the Prime Minister and Parliament. It appears to be the consensus among notable commentators of the French Constitution that, textually, the Constitution can allow for a strong President as it also allows Parliament and the Prime Minister to wield considerable power. It therefore depends a lot on how much weight the President of the French Republic is able to throw around, and Charles de Gaulle was one president who did not want his ponderousness taken for granted! So I wish we were more circumspect—and more diligent—about comparisons, and models and proposals, because re-writing our Constitution is (or, at least, should be!) very serious business worth prodigious scholarly time and labor.
Academic freedom needs strengthening and while our Supreme Court has frequently intoned Justice Frankfurter’s seminal formulation of the components of the freedom—what to teach, who should teach, who to teach, how it should be taught —the sad fact is that academic freedom in higher education in the Philippines is stymied by overactive regulatory agencies. When the Commission on Higher Education promulgates what it calls “Policies and Standards”, one expects only broad strokes by which higher education institutions are to guide themselves in determining the minutiae of their operations. Obviously, CHED has a different understanding of “policies and principles” and is not content with direction-setting—because it provides for such impertinences as the degrees and licenses that an institution must exact from professors and lecturers, limitations on methods of delivery, contact hours required, what courses may or may not require a thesis, etc. So it is that even highly experienced ambassadors and members of the diplomatic corps who would be most qualified to teach international relations may find themselves disqualified by CHED’s “policies and standards” because they do not possess the degrees the agency requires, nor are their academic qualifications “vertically aligned”—another rather stupid formula that confines an academic to one and only one discipline! And while state universities are supposed to be “autonomous” in that their charters are in effect statutory enactments passed by Congress that vest governance in a governing board, CHED has seized every opportunity to take them within its sphere of power and influence. Revising the Constitution would contribute immensely to the maturation of higher education in the Philippines by enunciating more clearly the entailments of academic freedom and concomitantly limiting the scope of regulation.
Political dynasties are what stand in the way of full support by many Filipinos of proposals to go federal. The reason is not too involved: Unless dynasties are dismantled, regions (or states) may very well become enclaves of dynasties and fiefdoms of well-entrenched families. Whoever said walang forever has obviously never conversed with a member of a dynastic family for whom political clout and power are and must be forever. The trouble with the 1987 Constitution is that its lofty aspiration to eliminate dynasties notwithstanding, it neutered its own proposal by leaving it to Congress to define what dynasties are and to pass the necessary legislation. It should not be too difficult to rewrite a self-operating provision of the Constitution on dynasties.
The part of the Constitution that many would be loathe to re-write is the Bill of Rights. But I take the position that it should be reviewed and, if found necessary, re-written. In many ways, the protections afforded the accused—and the breadth of the exclusionary rules—are exaggerated. One clear case: To waive the right of counsel, you need counsel! And the poison of the poisonous tree has spread so far, that plenty of evidence that would otherwise nail the accused and clinch allegations of culpability are “fruit of the poisonous tree”. The doctrines crafted by jurisprudence on double jeopardy also invite review, for precipitous acquittal by judges eager to dispose of many cases or, regrettably, by “hoodlums in robes”, forever bars prosecution even of the clearly guilty. And while I am all for trimming down the exaggerated certiorari powers presently attributed to our Supreme Court, I am all for expanding the grounds of certiorari against acquittals, keeping however to the general requirement of the writ: a clear and convincing showing of grave (that qualifier needs to be emphasized) abuse of discretion. Then there is the matter of prosecution. Our prosecutors take the constitutional provisions to mean that as long as they have “probable cause”—even if it is abundantly clear that they do not have the evidence sufficient to win a conviction—they can go on with prosecuting the offender. The result is hasty indictments, the detention of those charged with “unbailable” offenses, and—after the unjust and unjustified curtailments of freedom visited on an accused—his acquittal because of “insufficiency of evidence”. It should not be too difficult to include the following provision: “The prosecutor files the Information only upon a finding of probable cause, but shall desist from doing so unless he has evidence sufficient for the court to convict the accused.” There is no contradiction here, except to the dense. The first question the prosecutor asks is: “Do I have probable cause?” If he has none, he dismisses. If he has, then he takes a second look at the evidence and asks: “If I file this Information, do I have a chance at securing the conviction of the accused or none at all?” If it is clear to him that there is no way the evidence presently before him obtains the conviction of the accused, it would be immoral and unjust for the prosecutor—as well as a waste of public resources—to file the Information and visit all its attendant miseries on the accused!
Some have misgivings about re-writing portions of the Constitution other than those that deal with the Legislature (Article VI) and the Executive (Article VII). But when you want to go federal, then perforce, you must ask whether the Supreme Court shall continue to enjoy the same jurisdiction it now has, what cases go before it, and how much it must yield to state courts—and whether or not there should be state or regional supreme courts. Then you must also review provisions on accountability as well as patrimony, for crucial decisions will have to be made about how to hold state or regional officials accountable (shall state governors be impeccable officials, knowing that impeachment is a next-to-impossible process), what resources constitute patrimony of the region and patrimony of the Republic—in other words, the classic battle between state and union! And since the changes will be wide-ranging anyway, why not address other, equally vexatious though probably less sensational provisions of the fundamental law?