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The best and the worst in Puno constitutional draft

Based on a first reading of the Puno constitutional draft, my first impression is that there are good and bad provisions. Hopefully, only the good will survive the constituent assembly process and the bad will be cast out. I am not so optimistic that is the case, however, given the composition of Congress. Still but am willing to see how this unfolds.

The best provisions of the Puno text are in the Bill of Rights of the proposal (explained in full below) and in several provisions scattered throughout the text that reform our politics (such as the self-executory anti-dynasty provision, the provisions that institutionalizes voting for parties and proportional representation, and those that support political party development). There are good provisions also in the sections on the Judiciary and the Federal Commissions although, as I will write in another column, the revolutionary changes in the former—having four highest courts and regional supreme courts—will be extremely challenging to implement.

The worst provisions of the Puno proposal emanate in the terrible choice the consultative committee made of keeping the discredited presidential system, increasing and expanding further an already imperial presidency based on the powers of the colonial governor generals of Spain and the United States of America, contradicting and negating the decentralization principle of federalism and the libertarian and democratic tendencies of its Bill of Rights and provisions on political reform. This, in fact, is the worst feature of both the 1935 and 1973 constitutions, that among others allow presidents like Aquino and Duterte to oust chief justices on personal pique. There are many seeds of dictatorship in the draft, including in the transition period where the President is given enormous power.

I reserve my views on the design of the Federal system being proposed. I am glad that we are establishing regions and not states, and that the principle of asymmetry will govern the relationship between the Bangsamoro and Cordillera regions and the Federal government. However, I am not convinced on the practicality, efficiency, and effectiveness of the division of powers between the Federal government, regional governments, and local governments. Related to this concern, I am also concerned about the design of the fiscal and revenue allocation system being proposed. My initial analysis is that rich regions will benefit greatly from the proposed Federal design and the poor regions will be worse off, the exact opposite of the outcome being promised. I am willing to be convinced and persuaded that I misunderstand the proposal.

I have no such doubt with the new Bill of Rights being proposed, an effort led by Fr. Ranhilio Aquino, my dean at the San Beda Graduate School of Law. A staple in every constitution, this section contains the declaration and enumeration of a person’s rights and privileges which the constitution is designed to protect against violation by the government and other individuals.

Arguably, the Bill of Rights of the 1987 Constitution was a reproduction of its predecessor, the 1973 Constitution, at least in most of its main features, the constitutional commission of 1986 also introduced substantial amendments, resulting in a much longer provisions. However, the proposed federal constitution provides for a much more comprehensive bill of rights with 28 sections including a new section on environmental and ecological rights. In contrast, the Bill of Rights of 1987 Constitution has only 22 sections.

While most of the rights contained in the proposed federal constitution are a reproduction of its predecessors, the consultative committee chose to introduce novel principles and concepts which explicitly spell out, in no uncertain terms, certain rights of individuals to reflect present-day realities.

Substantially recreated in the proposed federal constitution which are also found in the 1987 Constitution are Civil and Political Rights with a number of alterations. This article includes the right to life, liberty and property without due process; freedom of religion, press, and expression, rights of the accused, the inviolability of the right to privacy, right to travel, right to information. The right against unreasonable searches and seizure is reiterated but here it now extends to the conduct of unlawful unreasonable surveillance. Surveillance, not just searches, will only be allowed if authorities obtain both a search warrant and surveillance warrant. Individuals can demand that government agencies delete illegally obtained information related to them.

Social and Economic Rights, which used to be scattered in different articles in the 1987 Constitution or merely implicitly stated therein, can now be found in the bill of rights of the proposed federal constitution. As provided, every person is declared to have the right to adequate food, universal and comprehensive health care, quality education, adequate and decent housing, livelihood and employment opportunities.

A new section on Environmental and Ecological Rights states that every person has the right to a healthful environment, clean air, clean water, clean soil, and clean surroundings; to seek compensation for damage to the environment; and to seek “immediate relief” from courts through the writ of kalikasan and other protective writs.

What is radical is that all of these rights are self-executory and actionable. Citizens can immediately file lawsuits against government agencies and non-state actors to enforce their rights and seek redress if they are violated. For sure, some will claim that these rights will be abused and that this will cause congestion. But that’s not the case, as we have seen in the area of environmental rights, where the Supreme Court has been sympathetic to citizens in the rule of procedure it promulgated and its precedents. The rule and these precedents have not been abused, nor have they congested the courts.

One significant step taken by the consultative committee is to elevate the Commission on Human Rights into a constitutional commission with the responsibility to investigate human rights violations both by state and non-state actors. Under the present set-up, the Commission on Human Rights has a limited mandate. It is only authorized to accept complaints and investigate. But without prosecutorial powers, the CHR’s hands are tied. As a constitutional commission, the existence of the Commission on Human Rights is guaranteed. It becomes insulated from partisan politics and protected from emasculation by state actors like as what previously happened when it ran the risk of being deprived of its annual appropriations by Congress.

Another important provision is the explicit statement that violations of human rights include those not only guaranteed by the Constitution but also international human rights covenants and treaties to which the Philippines is a signatory.

For sure, if the new Bill of Rights is approved, thanks to Chief Justice Puno Fr. Aquino and their colleagues, it would be one reason for voting yes in the referendum. It would be such an irony that the best Bill of Rights we would ever have is adopted during a government with the worst human rights record. There is of course precedent in that as the 1973 Marcos Constitution also had a strong Bill of Rights which the dictatorship simply ignored and disregarded. Nonetheless, I would still be surprised if the Puno-Aquino Bill of Rights survives the constituent assembly process.

If only one could choose and pick the text that is good and throw away the bad, that would be perfect. But that is not going to happen here. Hard decisions will have to be made. I hope to help my readers make that decision in the months to come.

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Topics: Congress , Bill of Rights , Environmental and Ecological Rights , Social and Economic Rights , Rodrigo Duterte
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