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HIDDEN AGENDA - Mary Ann LL. Reyes (The Philippine Star) - July 8, 2018 - 12:00am

The 22-member Consultative Committee tasked to review the 1987 Constitution has finally approved the draft of the proposed charter that, among others, will bring about a shift from the current unitary to a federal form of government.

The proposed Constitution will be submitted to President Duterte so that the latter can endorse it to Congress during his third state-of-the-nation address on July 23.

Of course, the most controversial would be the shift to a new form of government, the creation of 18 federated regions each of which have the power to impose and collect certain taxes and approve their own budget, the four-year term of the President who can be reelected once, the ban on political dynasties, the election of a president-vice president tandem, to name a few.

According to ConCom head and former Chief Justice Reynato Puno, they hope to have a plebiscite to approve the proposed charter middle of this year.

I have just started going through the draft and I find it too long and verbose. Why can’t we have a short one, say like the US Constitution?

Let me start with Article I on the National Territory. I noticed that they brought back the phrase “historic right or legal title” to refer to some of those territories belonging to the Philippines.

This phrase appeared in the 1973 Constitution to include in the definition of the national territory our claim over a portion of North Borneo or Sabah. It was removed from the present Charter to remove any continuing irritant in our relations with Malaysia although records of the 1986 ConCom say that dropping the Sabah claim was never intended.

The reinclusion of the controversial phrase, however, has now become questionable after the UN Arbitral Tribunal that ruled on our South China Sea dispute with China said that “historic right or title does not exist under the UN Convention on the Law of the Sea.”

The proposed federal constitution likewise seems to want to institutionalize the Arbitral Tribunal findings by stating that the Philippines “has sovereignty over islands and features outside its archipelagic baselines… the law of nations and the judgments of competent international courts or tribunals… over the maritime expanse beyond its territorial sea to the extent reserved to it by international law, as well as over its extended continental shelf, including the Philippine Rise.”

Let’s move to the portion on the Declaration of Principles and State Policies. Section 3 of the 1987 Constitution mentions the Armed Forces of the Philippines as the protector of the people and the State. The proposed Charter says this is now the role of the government and not the AFP. Does this in any way reduce the powers of the armed forces?

The present Constitution mentions that the separation of the Church and the State shall be inviolable. The proposed charter adds a second sentence by describing the relations between them as governed by benevolent neutrality.

In the 2006 decision in the case of Estrada vs. Escritor penned by no less than ConCom head Justice Puno, the Supreme Court said “that in resolving claims involving religious freedom, benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the religion clauses in our Constitution.”

“The theory of benevolent neutrality or accommodation is premised on a different view of the wall of separation, associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect the state from the church, the wall is meant to protect the church from the state…The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may be allowed, not to promote the governments favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. The purpose of accommodations is to remove a burden on, or facilitate the exercise of, a persons or institutions religion.”

“Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religious freedom is seen as a substantive right and not merely a privilege against discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances.”

What happened in this case?

A complaint was filed against Escritor, a court interpreter, for living in with a man not her husband and having a child with him. But as a member of the Jehovahs Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is allowed. After executing a Declaration of Pledging Faithfulness, which Escritor did after 10 years of living in with Quilapio, members of the congregation who have been abandoned by their spouses are allowed to enter into marital relations which is moral and binding within the congregation all over the world except in countries where divorce is allowed. Escritor was a widow while Quilapio was still not capacitated to remarry. The Jehovahs congregation believes that once all legal impediments for the couple are lifted, the validity of the declarations ceases, and the couple should legalize their union. 

According to the High Tribunal, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. In this case, the Solicitor General failed to prove a compelling state interest and “that the state has used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state.”

The separation of Church and State clause has been subject to several interpretations and misinterpretations. In fact, even the criticisms being levelled by the Roman Catholic Church in the Philippines against the President have been seen as violations of this clause. So to put an end to all these, the federal ConCom probably saw it fit to explain.

Lastly, without going into details, I would like to mention about the proposed Bill of Rights, Art. III Sec. 1 of which states that these rights are demandable against the State and non-state actors which of course is an entirely different view. In law school, we have been taught that these rights, which are not created by the Constitution but are inherent rights, are mentioned in the Fundamental Charter as a protection and check against government’s three inherent powers – namely police power, taxation, and eminent domain which can be abused. So they are supposed to be demandable against the State only and not against private individuals or groups.

Non-state actors have been defined in the context of international relations as individuals and groups that hold influence and which are wholly or partly independent of state government. So even the United Nations, the World Trade Organization, terrorist entities like ISIS, can be considered non-state actors, and these rights demandable against them.

I have only managed to discuss up to page 4 of the 82 page draft document and I haven’t even reached my favorite part – that which divides the Supreme Court into four (Federal Supreme Court, Federal Constitutional Court, Federal Administrative Court, and the Federal Electoral Court) and which I understand was the original proposal of former chief justice Lourdes Sereno.

The discussions are going to be lengthy and bloody, to say the least. But I strongly encourage each and everyone to get a copy and read it thoroughly before we say yes or no. After all, it is going to be the fundamental and highest law of our land that will dictate our rights, obligations, and the future of our nation.

For comments, e-mail at mareyes@philstarmedia.com.  

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