Perfect imperfections

The only Constitution to institutionalize the principle that a public office is a public trust. With these words, former Chief Justice and former Constitutional Commissioner Hilario Davide Jr. professed his patronage for the imperfect instrument he co-wrote. He was speaking at the Senate, on the proposed amendments/revision of the 1987 Constitution, and he knew whereof he spoke. The man and the place evoked memories of 2000 and the impeachment trial of President Joseph E. Estrada.

The head of the Judicial Department and the head of the Legislative Department, former Senate President Aquilino Pimentel Jr., presiding over the trial of the head of the Executive Department. That 2000 watershed event was an unprecedented exhibition of republican democracy in action, the lofty idea of supreme power held accountable and the epitome of a working model of checks and balances. It was enough to make you forget the former Chief Justice’s subsequent role in the ignominious EDSA 2 oathtaking.

Davide’s view and the colorful words he chose to convey the same has to be the hidden treasure of the entire exercise. Until he said it, I don’t think we even realized that our Constitution can actually contend as the best in the world.

People’s choice. It was a priceless learning opportunity to witness the divergence of views of Constitutional law’s leading lights.  But for choice of mode, the clear consensus was for a constitutional convention (con-con).

The burgeoning clamor for a con-con continues to be undeniable. Instead of planning for a plebiscite in four months for any amendments/revisions of a constituent assembly (con-ass), why not ask directly if the people want a con-con? Talking of expense, isn’t this the cheapest way to determine what the public really wants? Just another box to tick-off in the PCOS ballot: yes or no?

Senate, the thinking chamber. This was the Senate President’s riposte after the Speaker lampooned the upper house for being slow. Speaker Alvarez was actually speaking to the reality of the deliberative nature of our Legislature.

Lawmaking is supposed to be slow. Teka…teka… is the central design of bicameralism. The House acts swiftly, the Senate takes measured steps. Representatives are fervid, Senators wise. The founders were really skeptical of majority rule. They needed a Senate to temper the passions of the House. Hence, the checks and balances mechanism implanted even within the legislative department.

Nowhere is this more manifest than in the resolution to convene as a con-ass. The House has already approved the same, seduced by its interpretation of the constitutional provision as requiring joint voting. The Senate, meanwhile, has soberly begun its own hearings to discern where true national sentiments lie. There. Stalemate.

The power to revise/amend is known as the constituent power. It is a power latent in each chamber of our bicameral Congress. It cannot be exercised by one house only.  Such unilateral action cannot possibly bind the other House which has not chosen to exercise it.

Size makes right? The superior number of Congressmen over Senators has never been used to argue that a House bill prevails over a Senate bill. Simplistic arguments that blithely disregard the bicameral nature of our Legislature should be avoided.

An unprecedently popular executive. A strong willed House. These circumstances together becomes a recipe for combustion. The founders’ misgivings about dominant majorities was well placed. But in every step of the route, they placed checkpoints. Blackstone’s rushing single torrent subdivided into different channels to be less destructive. Bicameralism, checks and balances, a constituent power that needs the action of both houses.

Did the framers 30 years back anticipate the sort of audacity we are now seeing? However events play out, for as long as process is respected and the obstacle course of safeguards negotiated, then we are assured of the legitimacy of actions and their public acceptability.

Don’t mess with the press. President Rodrigo Roa Duterte has himself had his “recitation” on Constitutional law when he weighed in on the comfort women issue. He washed his hands on the decision of whether to remove that dramatic sculpture by the bay. But the authentic PRRD could not resist making his own Constitutional bona fides clear: don’t mess with our freedom of expression.

Speaking of which, look who’s messing with it from inside? The House version of con-ass is a menu of our legislators’ mindset on provisions to be revisited, the greatest hits if you will. Top of the list, next to the self serving term extension, is the overhaul of a liberty which has been enjoyed for centuries, for which countrymen fought and died. No less than Dr. Rizal invoked it – freedom of speech – as a corner stone of his philosophies. The House draft seeks to limit freedom of speech only to the responsible use of the same.

Responsible? Who decides? Prior restraint, a.k.a. censorship is a staple only of authoritarian regimes.  A former Jurist and New York City Mayor famously wrote: “The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism.”

The press are our eyes. Closing them down is the first step towards tyranny. Justice Malcolm leaves us with this food for thought: “The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. … Rising superior to any official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public opinion should be the constant source of liberty and democracy.”