I thank you for the privilege and honor of being the Guest Speaker in this meeting of the Rotary Club of Manila, my own club, indeed.
On January 22, 1987, or sixteen years now past, our club had the final discussion on the proposed 1987 Constitution. I spoke against its ratification while then Justice Minister Neptali Gonzales spoke for its ratification. The proposed constitution became the 1987 Constitution.
Not in the "I told you so" context but based on the experience over the last sixteen years, I propose for consideration the following amendments to the 1987 Constitution:
a. A shift from the presidential to the parliamentary system of government, already proposed by members of the House of Representatives.
b. Various changes or modifications in the responsibility of the Supreme Court and on the manner of appointments.
c. Limiting the Constitution to the Bill of Rights, the structure of the government, and a declaration of Principles and State Policies, and leaving to the Legislative Department the authority to deal with other matters which must be responsive to phenomenal developments in science and technology, the dynamics of a world of disappearing borders, and the hazards of the despoliation of an environment created to sustain life.
Change from Presidential to Parliamentary System.-
Believing that a developing country must have a strong and stable government I have, before now, been an advocate of the presidential system. But the distinguishing strengths of a presidential system, as compared to a parliamentary system, in light of our experience, I am now convinced, are illusory.
In our presidential system, we elect a president. He is the head of state and the head of government. Upon him solely is vested the executive powers. He is elected by direct vote of the voters of the entire country for a fixed term of six years. These provide stability and effectiveness in the governance of the nation. In these lie the strengths of a presidential system. But these, in my view, are more apparent than real.
Because the President is elected by direct vote of the people, it is assumed he is the people's choice. We overlook that the voters may only choose the president from among the candidates. But the people have no participation in the choice of candidates. Political parties or political aggrupations or alliances do the choosing. And competence, integrity, leadership do not rate high in the choice but winnability, party loyalty, and resources the candidates can muster. The assumption, therefore, that because it is the people who choose the president, he must be the "people's choice" and that he must be of the best from among the people is not quite true.
And because the voters in the entire country vote for the President directly, after a limited campaign period, the assumption that the vote reflects the people's judgment of the best choice from among the candidates is open to question. Unless the winner wins big, the integrity of the results of the vote, is invariably also assailed.
On the other hand, the fixed term of the President has not provided stability; rather, it has given occasion for people power. Indeed, the system's avowed stability instead reflects a rigidity which, when the need arises, results in the breakdown of the system itself.
But will a parliamentary system alleviate these deficiencies? May we expect a government that is competent and responsive?
Firstly, any member of Parliament may be elected Prime Minister, or head of government. The choice is from among all members of Parliament who were themselves elected, chosen by the people to be their representatives in Parliament.
Secondly, the responsibility for governance is not vested in a single individual. It is vested in the "government" which includes the Prime Minister and the Cabinet.
Thirdly, the "government" may be held to account for its governance, as often as Parliament desires, and failing to meet expectations, may be replaced at any time by Parliament. There will be no need for impeachment proceedings and no occasion for any "EDSA". "People power" will be exercised through the people's representatives in Parliament. The Constitution need not be shattered. The Supreme Court need not be, as it ought not to be, a party to any political upheaval.
Fourthly, elections within a representative district, generally with a population of just about four hundred thousand and voters of about two hundred thousand, are more easily assured to be conducted in accordance with the rules. There is also closer familiarity between voters and candidates, and after the elections, between the people in the district and the elected representative.
On the Supreme Court-
a. Limiting its jurisdiction.
The 1987 Constitution makes the following meaningful changes on the jurisdiction of the courts, particularly the Supreme Court:
a. It includes a definition of "judicial power", as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (2nd Par, Section 1,Article VIII)
b. It explicitly vests in the Supreme Court the following jurisdiction:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. (3rd Par., Section 18, Article VII)
I propose that these provisions of the Constitution be considered for revision or deletion.
Chief Justice Marshall has been quoted as stating of the court in which he sat that "it never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required". The new second paragraph of Section 1, Article VIII which defines "judicial power", particularly the second clause - ". . . and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." expands "the judicial power beyond its proper bounds".
The clause gives license to the Supreme Court to review and nullify legislative, executive or administrative acts, on any matter, not necessarily on a claim of violation of the Bill of Rights or of being beyond governmental power. It provides jurisdictional basis for the Court to deal on matters political, or on issues that are economic in nature and other non-judicial questions which are better left to the judgment of legislators or administrators. Not only does the expansion of the breadth of judicial power add to the workload of the Supreme Court but may in the ultimate weaken the Court and fidelity to its decisions.
On the other hand, the new mandate of the Supreme Court to review, "in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus" is impractical, unrealistic, and violates the very nature of judicial review. Note that under the 1987 Constitution, the privilege of the writ of habeas corpus may only be suspended or martial law proclaimed, in cases of invasion or rebellion - unlike the 1935 and 1973 Constitutions where these may be done in case of "imminent danger" thereof. When there is an invasion or a rebellion, the courts may not even be able to function. The facts upon which the President (or Prime Minister) acts are not susceptible to determination through the judicial process. And intervention by the courts where there is an invasion or rebellion may imperil the defense of the life of the State. The likelihood would be that the court's intervention would be ignored by the Commander-in-Chief as the armed forces fight to stop and overrun an invasion or to quell a rebellion. Both the Constitution and the Supreme Court would be the losers.
b. A single Supreme Court.
Under the 1987 Constitution, the Supreme Court shall be composed of a Chief Justice and fourteen (14) Associate Justices. It is allowed to sit en banc, or in its discretion, in divisions of three, five or seven members. Since its creation under the 1987 Constitution, the Supreme Court has sat en banc and in three divisions, each division composed of five members. I propose that the Supreme Court be composed of a Chief Justice and of only ten (10) Associate Justices and that it only sit en banc.
Because the present Supreme Court sits en banc and in three Divisions (of five members each), it has often been remarked that there are four Supreme Courts. The Supreme Court en banc, the First Division of the Court, the Second Division of the court, and the Third Division of the court. Only "cases involving the constitutionality of a treaty, international or executive agreement, or law" are required by the Constitution to be heard by the Supreme Court en banc. All other cases except when mandated by law or by the Rules of Court may be heard by any division of the Supreme Court. Whether a decision is rendered by the Supreme Court en banc or by any of its three divisions, the decision is that of the Supreme Court. I submit that decisions of the Supreme Court will command greater reverence and will truly be "supreme" when rendered only by the Supreme Court en banc.
c. Transfer of Supreme Court's authority, and responsibility, of administrative supervision over all courts and their personnel to an independent commission or council.
Before the 1973 Constitution, administrative supervision over what are now 2,204 lower courts and their 25,000 personnel, was exercised by the Department of Justice. The transfer of this power under the 1973 and 1987 Constitutions to the Supreme Court would assure that the lower courts would be independent of the Executive Department. I propose instead the creation of an independent commission or council which shall be given the function of administrative supervision of the lower courts. The commission or council shall be composed of not more than five (5) members, with fixed tenure, only three of whom need be members of the Bar, and shall include a member or members with expertise in management. Its chairman shall be vested with authority, and exercise functions, similar to the Chief Executive of a corporation.
Firstly, since the Supreme Court's function is judicial, its membership collegial, and its members trained and experienced to be judges (not administrators), the Supreme Court is ill-suited to exercise administrative supervision.
Secondly, this responsibility unduly burdens the Supreme Court, affecting adversely the discharge of its judicial function, of being the "Supreme Court", the highest tribunal.
Thirdly, in the discharge of their judicial functions, the lower courts are independent of the Supreme Court. While the Supreme Court has the ultimate power to affirm, reverse or modify decisions of the lower courts, that power may only be exercised in particular cases appropriately brought before the Supreme Court. Its exercise of administrative supervision confuses the independence of the lower courts.
d. Change in the manner of appointments of members of the Supreme Court and the lower courts.
The Judicial and Bar Council was created by the 1987 Constitution to propose nominees for appointments to all the courts from which nominees the President shall make the appointments. This was apparently intended to purge the judiciary from the influence of politicians - particularly the members of Congress. Confirmation by the Commission on Appointments under the 1935 Constitution was dispensed with.
What perhaps the majority of the members of the Constitutional Commission did not appreciate was that while participation of members of Congress, because they are politicians, was withdrawn, the control over the process of appointment of members of the Supreme Court and the lower courts was effectively vested in the President who is the Number One politician in our government, and who has the biggest stake in cases involving the exercise of powers of government contested before the Supreme Court.
The Judicial and Bar Council is composed of the Chief Justice of the Supreme Court who acts as Chairman, the Secretary of Justice and a representative of the Congress as ex officio members, a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members of the council (other than the Chief Justice who shall be Chairman, the Secretary of Justice and the member of Congress), are appointed by the President for a term of four (4) years with the consent of the Commission of Appointments. They are eligible for reappointment.
Take note that all the seven (7) members of the Judicial and Bar Council except the representative of the Congress, and perhaps the Chief Justice because he does not hold office for a term of four (4) years, are appointees of the President. The perception then is that should the President desire any particular individual to be recommended by the Judicial and Bar Council, his nomination is assured. And his appointment will follow. This gives the President effectively the sole prerogative of choosing who the members of the Supreme Court shall be as well as those of the lower courts. And, I may add, this is true also in regard the appointment of the Ombudsman and his deputies.
I propose that appointment of members of the Supreme Court and the Court of Appeals revert to the procedure provided in the 1935 Constitution. They shall be appointed by the President with the consent of the Commission on Appointments. And if we shift to a parliamentary system, the members of the Supreme Court and the Court of Appeals will be appointed by the Prime Minister, with the consent of a Commission on Appointments consisting of twenty-one (21) members of Parliament the members of which shall be appointed on the basis of proportional party representation. If decisions of the Supreme Court, especially involving issues affecting the government will command respect and obedience, there must not be the slightest perception that they but reflect the wishes of the President.
As to the judges of the other courts, I would propose that the commission or council I had earlier advocated to be constituted to exercise administrative supervision over the lower courts be mandated to prepare a list of members of the bar who are qualified for appointment to the various courts and it is from this list that the President or the Prime Minister may make appointments.
Limiting the Constitution to the Bill of Rights, etc.
Much unlike the Constitution of the United States which is limited to establishing the structure of government, and providing for a Bill of Rights, the 1987 Constitution contains eighteen (18) articles, including articles on the National Economy and Patrimony (Article XII); Social Justice and Human Rights Labor (Article XIII) which include provisions on Labor, Agrarian and Natural Resources Reform, etc.; Education, Science and Technology, Arts, Culture, and Sports (Article XIV); and The Family (Article XV). I propose that the Constitution be limited to the Bill of Rights, the structure of the government, and a declaration of Principles and State Policies, and leaving to the Legislative Department the authority to deal with other matters.
Alexander Hamilton observed, thus:
Constitutions should consist only of general provisions: The reason is, that they must necessarily be permanent, and that they cannot calculate for the possible changes of things.
(Alexander Hamilton, Speech at New York, Ratifying Convention, 28 June 1788, in Papers of Alexander Hamilton 1:118 [Harold C. Syrett ed. 1961]) while John Marshall noted:
A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language.
John Marshall, McCulloch v. Maryland, 17 U.S. [4 Wheat.] 316, 407 [1819])
Indeed, while the Constitution covers these various matters, many provisions provide that in the ultimate, these provisions shall be implemented "in the manner provided by law" or "as may be provided by law" or "shall be dealt with by law".
For example, Section 1, Article XII (National Economy and Patrimony) provides, as follows:
SECTION 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices
In the pursuit of these goals, all sector of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.
May a law enacted by Congress or Parliament be then assailed as unconstitutional because not in accord with the above provision?
Epilogue.
"The strains of advocacy", says author-barrister John Mortimer, Q.C., "can be almost unendurable". "Almost", indeed, because I have had the good fortune of "enduring" them for fifty years now.
To position myself to better endure these strains I have, since the impeachment trial, limited my advocacy to my clients' cases. I have desisted from involving myself in any public issue.
But Manila Rotary's invitation is a privilege not to be declined. And if I would be worthy of the privilege, I would have to address a public issue. I have spoken this afternoon on proposals for amendment to the 1987 Constitution. Discussion of these proposals, even if the proposed amendments are not adopted, will hopefully alleviate some of the problems I have given as reasons for making them. Unless we benefit from experience, we can not look to moving our country forward.
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