Legal experts weigh in on the draft federal constitution

July 16, 2018 - 2:01 PM
Former solicitor general Florin Hilbay, one of the strongest critics of the draft federal constitution. (PhilstMiguel de Guzman/

Members of the legal profession have sounded off as the draft federal constitution prepared by the Consultative Committee on charter change was finally made public and drafts have been delivered to the two chambers of congress so that discussions could begin.

Concerns zeroed in on provisions that supposedly give the president broader power in the event of a national emergency and the removal of a ban against reelection of the president and vice-president.

Florin Hilbay

The former solicitor general criticized the draft for transitory provisions that allow the president to assume powers of the three branches of the government and provisions that allow the president to extend his term.

The proposed ARTICLE XXII, Sec.1 on Transitory Provisions provides for the sitting president to be the chairman of the Federal Transition Commission.

Sec.2 of the same article allows the commission to “exercise all powers necessary and proper to ensure a smooth, speedy, and successful transition.”

Meanwhile, Article VIII, Sec.4(a) on the terms of officials in the executive department contains a new feature unseen in the previous constitution: the reelection of the president and vice-president.

The ban against presidential and vice-presidential reelection in the 1987 constitution according to some constitutional scholars was supposedly to discourage long-term monopoly of power.

Mel Sta. Maria

The dean of the Far Eastern University Institute of Law centered his critique on the lack of specific language barring the incumbent president during the transition from future reelection.

Sec.6 of the transitory provisions expressly provides for the terms of the incumbent president and vice-president at the time of the transition to end as scheduled on June 30, 2022.

However, nowhere in in the draft is an express prohibition against the same officials to run again in the future.

Sta. Maria also criticized another new feature in the projected new charter: a single vote feature for the presidential and vice-presidential candidates of the same party in future elections.

Article VI, Sec.4(c) of the proposed constitution decrees that “the President and the Vice President shall be elected as a team.”

A vote for the presidential candidate thus shall also be counted as his vice-presidential running mate, a practice seen in the two-party electoral system of countries such as the United States.

The past two administrations have seen the president serve with a vice-president from another political party: Benigno Aquino III was from the Liberal Party, while Vice-President Jejomar Binay was from the United National Alliance. President Rodrigo Duterte has LP member Leni Robredo as his vice-president.

Antonio La Viña

The veteran environmental and human rights lawyer likewise has observed the use of ambiguous language in the draft.

A professor of constitutional law in a number of law schools, La Viña noted the lack of express prohibition on reelection.

La Viña has proposed a number of provisions that could solve the problem of supposedly ambiguous language in the draft.

Jesus Falcis

The young lawyer petitioning for same-sex marriage in the Supreme Court also gave his two cents’ worth on the federal charter.

Warning against a supposed ‘concentration of power’ in the president granted by the new constitution, Falcis highlighted provisions in Article XIX, Sec. 10 on national security and public order and Article XX, Sec.4 on general provisions.

Under Article XIX, the president is directed to “take all necessary actions to repel and quell the attack” in the event of a cyber security threat to the country.

Article XX on the one hand allows the president to “intervene and take all measures necessary and proper” should any region “fail to comply with its obligation, as provided for in the Constitution, which seriously undermines the sovereignty, territorial integrity, economy, or the unity of the Federal Republic.”

The provision on cyber security is the first time such a threat has been contemplated in the constitution.

On the one hand, the provision in Article XX is the first such grant of power that contemplates a region of the Philippines failing to govern itself.

These two new features will be placed alongside security and peacekeeping provisions already in the current constitution.

The federal charter has preserved the ‘calling-out power’ in the 1987 Constitution that allowed the president as commander-in-chief to call out the armed forces, as well as the power to declare martial law and suspend the privilege of the writ of habeas corpus in the event of lawless violence, invasion, or rebellion.

James Jimenez

Commission on Elections Spokesperson James Jimenez shared his personal observations on the draft through a column he posted on Twitter.

Among the things he discussed were how the draft constitution called for a ‘centralized Federal COMELEC.’

Article X-C. titled “FEDERAL COMMISSION ON ELECTIONS” introduced a new requirement for the COMELEC: commissioners allocated among the three main island groups.

The proposed Article X-C. also calls for “two (2) from Luzon, two (2) from Visayas, and two (2) from Mindanao one of whom shall represent the Bangsamoro.”

Another revision underscored by Jimenez is how the requirement that majority of the commissioners be members of the bar.

The proposed replacement provision now calls for at least just one member of the commission to be a member of the bar.