The House committee on constitutional amendments approved last Wednesday the concurrent resolution for Congress to convene in a Constituent Assembly (Con-Ass) to amend the Constitution.With this, the Con-Ass express has officially left the station.
The entire House is expected to uphold the Committee report. When the vote is called, majority will invoke the bargain price of a Con-Ass compared to the Constitutional Convention (Con-Con) mode. Reports place the spread at P2 billion for Con-Ass compared to P6-7 billion for Con-Con.
If cost should factor in the choice of mode, it is imperative that we have data to confirm the premises of the differential. I say this because there are suggestions that the expense of a Con-Con drops dramatically if the election for delegates were to be synchronized with the Barangay elections next year or the local elections in 2019. This adjusted figure is actually closer to the Con-Ass P2 billion price tag.
Of course, the concurrent resolution would have no effect if the Senate withholds its concurrence. As of today, it appears from reports that the Senate may be persuaded to agree to the Con-Ass mode for as long as the three-fourths supermajority required in the Constitution is understood to mean three-fourths of each chamber, voting separately.
Reform areas. In previous administrations (notably, those of President Joseph E. Estrada and Benigno C. Aquino III), the focus of movements to amend or revise the Constitution was on economic provisions which limited foreign ownership in: exploration, development, and utilization of natural resources; real property; reserved investments; franchises, schools; mass media; the advertising industry.
Under the Duterte administration’s Constitutional Reform package, economic liberalization is likewise on the table. The intent is to increase the ownership ratio up to 70-30 in favor of foreign investments.
Economic reform also inexorably draws us into the realm of political reform. Federalism and its attendant massive overhaul of the existing centralized structure will be the centerpiece issue. The debate will focus on the decentralization of power in a federal system. But more important than the division of governmental power vertically – creating two sovereigns, national and regional – is the potential for change in the division of power horizontally, i.e. the area of separation of powers.
Cory innovation. One of the innovations of the 1987 Constitution that impacts on the delicate equilibrium among the branches was the creation of the Judicial and Bar Council (JBC) and the confiscation of the confirmation power over the Judiciary from the Commission on Appointments (CA).
The raison d’etre of this move was the insulation of the Judicial branch from patronage and partisanship, one of the bulwarks of the Rule of law being an independent and impartial Judiciary. Pre-martial law horror stories of kowtowing to CA members permeated the atmosphere of the 1986 Constitutional Commission (ConCom) deliberations. This, and the gravitas of ConCom President Cecilia Munoz-Palma and member, former Chief Justice Roberto Concepcion carried the day for the supposedly less political JBC creation.
To not a few, however, the diminution of this legislative check over the Judiciary was a black day for checks and balances. The debate in the ConCom itself was heated and the vote extremely close. Accordingly, constitution observers have always cast a critical eye toward this new creature.
Thus far, the performance of the JBC has received mixed reviews. Typical commentary is this statement from Transparency and Accountability Network: “If you look at the record of both the JBC and the CA, neither of them has a very good track record. The JBC has a terrible track record. …. if we go with the suggestion to take [the vetting] out of the CA, well, we haven’t done well with a non-CA process either.” Apparently, the Congressional Old Boys club of the CA is seen as having simply turned into a Presidential Old Boys club.
Duterte Court. We are presently on the eve of the first Supreme Court appointments of President Rodrigo Roa Duterte. He will have 12. (President Ferdinand Marcos had 31; Gloria M. Arroyo had 21; Corazon Aquino, 18). Two iconic Associate Justices are due for retirement this December: Justice Jose Portugal Perez, the Court’s first homegrown member having spent his entire career in the Supreme Court, and Justice Arturo D. Brion, one of the greatest intellects in the history of the Court. The retirement age, by the way, is still another topic for discussion as, arguably, 70 is the new 60. Quality of life has made the senior set more productive. Seventy-five should be the new retirement age.
During ordinary times, Presidential appointments to the Supreme Court are ranked among the most sensitive considering the awesome power possessed by each one of the 15 Justices. In extra-ordinary times, the importance is magnified. Inevitably, these men and women would have to make decisions on matters such as the death penalty, respect for human rights, and a host of constitutional questions on subjects ranging from international relations to land reform.
Now, more than ever, it becomes imperative that the choice of individuals to sit on the Court meet the highest standards of the four-fold litmus test in the Constitution: competence, integrity, probity and independence. A 24-man panel of nationally elected officials beholden to no one would arguably carry out this function more critically than would a seven-man body, six of whom are Presidential appointees.
JBC vulnerable. But these arguments are moot. The JBC is vulnerable. In contrast to the composition of the ConCom, this Con-Ass is composed entirely of Legislators. The Congressional check over the Judicial department used to be: the confirmation power, the budget power and the impeachment power. The JBC broke up this triumvirate. With Con-Ass, the safest bet is that these three checking mechanisms will be reunited.
Justices cannot escape being vetted. It is simply a question of who should do it. A CA confirmation is better as it is more transparent. Whatever diminution is felt by the Executive who appoints and the Justice who is appointed should be compensated by the benefit we all derive from a strengthened system of checks and balances.
source: Philippine Star
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