A thought on the draft constitution: I don’t like it

Well, it’s not really the ConCom (or Constitutional Commission) but rather a ConCom (for Consultative Committee). From a read of EO 10, Series of 2016, the Committee’s job is to study, conduct consultations, and review the provisions of the 1987 Constitution and, thereafter, submit its report, recommendations, and proposals to the President. He then transmits said recommendations and proposals to Congress. And that’s that, the “Committee shall cease to exist.”
That the Committee’s draft constitution generated the buzz and passion it had is actually a credit to the Committee members. My fellow BusinessWorld columnist, the normally placid Calixto Chikiamco, declared the draft “terrible, particularly on its economic provisions. The committee members should hang their heads in shame for such a protectionist and backward-looking document. Instead, the country should move forward and remove the foreign equity restrictions and protectionist provisions in the present Constitution.”
One has to go back to Ferdinand Marcos’ efforts to revise the Civil Service Code and, before that, Manuel Roxas’ Civil Code Commission (by EO 48, Series of 1947) to see such famously similar working grouping in our history. And remember those were not working on constitutional changes.
Still, it must be remembered that the Committee is essentially just President Rodrigo Duterte’s “Technical Working Group.” Roxas’ TWG may have Jorge Bocobo, JBL Reyes, Flérida Ruth P. Romero, José Vitug, and Edgardo Paras, with assistance by Arturo Tolentino. Marcos’ TWG on the civil service had Rafael Salas. Duterte has powerhouses Chief Justice Reynato Puno, Justice Antonio Nachura, and Fr. Ranhilio Aquino. Yet their work is but the President’s suggested working draft to Congress.
The Consultative Committee is not part of the process contemplated in Article XVII of the Constitution. Even assuming the Committee still exists (which it no longer does), the best it can do is hope that Congress uses their draft, which it has full discretion to simply ignore.
And despite the earned prestige and professional respect that many of the Committee members attained, it is expected of Congress to massively rework the draft or start from scratch.
Contrary to what Chief Justice Hilario Davide, Jr. says, the 1987 Constitution is not the “best in the world.” No constitution that bothers itself about advertising, limits the organization of the police, and then talks of so many things, from “love” to “athletic clubs,” can be that good.
Now, surveys show that around 72% of the population don’t understand our present unitary government of divided and separated powers (which is just three: the executive, legislative, and the judiciary)?
So why not make it more complicated and have a federal form of government? This — it must be emphasized — does not involve merely having another level of government, which is what we have now: a national government with local governments below it.
Doing so burdens the people with the conundrum of defining and controlling the inevitable “tug of war” that dividing and allocating powers create.
People right now find it hard to understand that our Supreme Court, unlike lower courts, is a court of law and not of facts? That issues like constitutional interpretation and the limits of judicial review are hotly debated among legal scholars due to worries over judicial oligarchy?
Well, why not create an even more complicated legal system: “the Federal Supreme Court, the Federal Constitutional Court, the Federal Administrative Court, the Federal Electoral Court,” plus other courts as may be established by law?
Constitutional improvements could have been effected by simply deleting Articles I, II, XII, XIII, XIV, and XV, and merging XVI, XVII, and XVIII; all the while paring and refining the Preamble and the remaining provisions, give greater powers to Congress, decrease the Presidency, limit the Supreme Court to legal questions (deleting the grave abuse clause), and give greater responsibility and fiscal freedom to local government units. It would also be better for the Constitution to be silent regarding Philippine territory, leaving it to Congress (along with our military) to regulate and define it.
Finally, whereas perhaps the most successful constitution in the world, the US Constitution, has merely 4,500 words (around 15 pages), the 1987 Constitution logs in 21,700 words (around 41 pages). The draft constitution tops them both at 31,500 words, at 82 pages.
Some 1,643 of those words are spent creating the “Federated Regions,” with Congress having the power (subject to the people’s ratification) to “create, abolish, merge and divide the Regions and determine their constituent political subdivisions.”
Does anyone see the incongruity there?
Federalism logically arises from pre-existing, independent, distinct political entities (e.g., States) that decide to unite for various pragmatic reasons and surrender some of their sovereign powers to that newly created legal entity. Effectively, two sovereign powers are simultaneously and equally at play: that of the various States and the new entity.
From the foregoing, one sees why no country in history with a unitary form of government decided to go federal.
Because it just doesn’t make sense.
 
Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.
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