Wrong time, wrong aim, good reasons

The call for charter change will never die down because there are really enough good reasons for its amendment or revision. But that call will remain unheeded for as long as it is made at the wrong time for the wrong purpose and by the wrong persons. And so it is with this latest resolution filed in Congress by ex-President now Congresswoman Gloria Arroyo and her son Dato calling for a Constitutional Convention to amend the Constitution.

Proposing to change the basic law on day one of a new administration is simply wrong timing. There are so many other problems besetting the new government created by the very proponent when she was still President that have to be tackled first. Amending or revising the charter is not that urgent. It will only distract the new administration in immediately tackling the more pressing problems at hand.

It is common knowledge that during her long incumbency several attempts have already been made to change the charter. Apparently the person behind those attempts is the ex-President herself although she has denied it. It is also obvious that the main purpose is to change the form of government from presidential to parliamentary so that she could have a crack at the Prime Ministership where the real power will be lodged. Those attempts were all foiled precisely because they were done by the wrong persons and for a wrong purpose. This latest resolution filed in Congress is but a repetition of those attempts. In fact it confirms that the ex-president is really behind those moves. Thus it is also done by the wrong person for the wrong self-serving purpose.

But in due time, when this administration has already identified and assessed the many problems it inherited particularly corruption in government, and has set in place the ways and means of solving them, steps can be taken to change the charter. Admittedly, this move is necessary for the achievement of many other reforms in government.

Among the many provisions in the present constitution that must be removed, revised, improved and/or clarified were clearly seen from the many constitutional issues that cropped up in the last election. Foremost among these were: (1) whether an elected ex-president who has not finished his term can still run for president again; (2) whether the ban on midnight appointments covers appointment of members of the Supreme Court; (3) whether the party list system of representation promoting multi-party system has really served its purpose of democratizing political power; and (4) whether the prohibition on political dynasties is forceful enough to guarantee equal access to opportunities for public service.

The present Constitution seems clear enough when it provides that “the President shall not be eligible for any reelection”. But smart lawyers still found a loophole in it. They came up with another interpretation claiming that it applies only to an incumbent president because “reelection” refers only to president still holding office and running again for the same office. They contended that an ex-president who has not fully served his term is not actually running for reelection and therefore is not disqualified to run again. And the COMELEC agreed with them. It allowed ex-President Estrada to run again despite the clear intent of the framers of the charter that said prohibition from running again applies to all elected presidents, incumbent or not, or having served the full term or not. This provision must therefore be clarified to remove this loophole and to more categorically reflect the charter framers’ intent.

The same is true with respect to the ban on midnight appointments. The charter bans the president from making appointments two months before the presidential election and up to the end of his term except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. But astute lawyers again found a loophole in it. They claimed that the provision is embodied only in the Article covering the Executive Department; so it does not apply to appointments of members of the Supreme Court including its Chief Justice (CJ). And the SC itself agreed with them thereby paving the way for the appointment of a new CJ even during the two month ban. So this provision must likewise be amended to plug the loophole and to expressly ban all presidential appointments two months before the next presidential elections except temporary appointments to executive positions in the interest of public service and public safety.

The provision on party list system of representation, on the other hand, has not really democratized political power. On the contrary it has been used by those already in power to remain in power because the COMELEC has accredited party list organizations that do not represent the sectors they are supposed to represent; and because the accredited party list organizations have nominated as their representatives persons who do not really belong to their sectors. Thus in the last election, the son of the ex-president who gave way to his mother in his congressional district, and the outgoing Department of Energy Secretary, have been nominated by the party list organization of security guards and of jeepney drivers respectively. This provision must therefore be scrapped; or if it has to be retained, it must be revised as to be self-operating. Their implementation should not be left to Congress because, as already shown by the law enacted to implement it, Congress has not democratized but on the contrary, concentrated the power to those already rich and powerful.

The prohibition on political dynasty however is another matter. While the charter mandates Congress to enact an enabling law, Congress has not done so up to now because many of its members belong to political dynasties and therefore would not want them dismantled. So this constitutional provision must be revised to make it self-operating without need of any legislation.

There are many more desirable amendments to the charter that will result in true reforms like the conversion of Congress into a unicameral body with less membership which will definitely result in less government expense and more efficient and quality legislation. It will be the subject of another write up for a more detailed and extensive discussion.