It was pointed out in this column last week that, contrary to what a surviving member of the 1986 Constitutional Commission self-servingly told the Senate, the 1987 Constitution drafted by the Commission “is the best constitution in the world.” That’s a mere opinion, like a parent praising an offspring.
Last week’s column revealed several defects in the 1987 Constitution.
One defect is the failure of the 1987 charter to specify whether the Senate and the House of Representatives should vote jointly or separately when Congress convenes as a constituent assembly to propose amendments to the constitution. Father Joaquin Bernas, a member of the 1986 Constitutional Commission, and retired Supreme Court Associate Justice Vicente V. Mendoza, a leading expert in Constitutional Law, pointed out that due to its carelessness in drafting the charter, the Commission failed to specify that the voting should be done separately.
Another defect in the 1987 Constitution is its declared policy against political dynasties. The charter disallows political dynasties, but left it to Congress, which has been dominated by political dynasties since time immemorial, to define the term “political dynasty.” As expected, senators and congressmen are reluctant to provide such a definition, lest the lucrative hold their families have had on elective public office gets diminished. More than 30 years since the ratification of the 1987 Constitution, Congress has not yet provided the mandated definition.
Today’s essay is all about the other defects in the 1987 Constitution.
Article IV is about citizenship. It does not recite any provision regarding dual citizenship. As a consequence, individuals who are citizens of both the Philippines and another country mock Philippine elections by running for public office despite their dual nationality.
Incidentally, dual citizenship should not be confused with dual allegiance, which is addressed in Section 5, Article IV of the charter.
There is Section 17, Article VI, which created the Senate Electoral Tribunal and the House of Representatives Electoral Tribunal. Section 17 provides that each electoral tribunal “shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members.”
Unfortunately, Section 17 does not specify when the electoral tribunals are to exercise exclusive jurisdiction over cases seeking the disqualification of candidates. There is wide-scale confusion in current jurisprudence on this issue. Some judicial pronouncements say that winners who were validly proclaimed by the Commission on Elections can be sued only in the electoral tribunals, while some rulings say otherwise. This confusion creates instability in the electoral system.
Another defect is found in Section 18, Article X, which governs autonomous regions in the country. Section 18 provides that “the creation of the autonomous regions shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose …” This means that only a local, and a not a national plebiscite, will decide the existence of an autonomous region that the entire country must recognize.
Since the creation of an autonomous region creates special privileges for such regions, that is, privileges not accorded the other regions, then it is unfair that the plebiscite is limited only to the region. The plebiscite should be nationwide in scope.
This observation is particularly true if the controversial Bangsamoro Basic Law drafted by minions of then President Benigno Aquino III were to be taken up by Congress anew. Although the BBL purports to be a law granting autonomy to Muslim Mindanao, it is to all intents and purposes a law establishing a Moro sub-state in the heart of Mindanao.
A sub-state in Mindanao will make a mockery of Philippine sovereignty. If elite troops of the country were unable to serve a warrant of arrest against a Malaysian terrorist in Mamasapano, Maguindanao years ago, one can just imagine the well-nigh impossibility of applying Philippine law to the Moro sub-state in Mindanao to be created by the BBL.
If the plebiscite is nationwide and not localized, the national interest is better reflected and duly served.
Still another defect in the 1987 charter is its policy of allowing a multi-party election for president and vice president. Under the multi-party election system, the winner is elected on a mere plurality and not a majority of the votes cast in the polls. This means that the elected president holds office at the will of less than a majority of the electorate. That arrangement is a repudiation of the democratic system, which means that the will of the majority of the people must prevail.
A president elected on a mere plurality will have to spend the first half of the presidential term winning public approval, which will necessarily involve a lot of politics, and the other half, hopefully, in carrying out his duties.
The French electoral model calls for a multi-party election for president. To address the need for a majority winner, the French model calls for a run-off election —the top two elected in the presidential polls must run again, this time against each other, in a second poll. That way, the ultimate winner enjoys a mandate from a majority of the electorate.
Unfortunately, the provision in the 1987 Constitution allowing multi-party election for president and vice president was lifted from the French model, but the provision for a run-off election was not included in the 1987 Constitution. As a result, all Philippine presidents installed under the 1987 charter, with the notable exception of Joseph Estrada and Rodrigo Duterte who both enjoyed overwhelming mandates, are plurality-installed presidents.
Since there are good reasons for the people to suspect that incumbents in Congress will want to extend their terms in the guise of “transitory provisions” to a new constitutional system, the people are reluctant to open the 1987 Constitution to amendments. If what is suspected is true, then opposition to charter change should be encouraged because the public interest must be protected, and not because the 1987 Constitution “is the best constitution in the world.”