Time to cha-cha

The current happenings in our country somehow revive anew the call for charter change. As the PNoy administration enters halfway through its term, the only thing clear so far is that even if he appears to be sincere and determined in cleansing the government of alleged crooks, grafters and incompetents, he is having a hard time doing so. And as shown by recent developments, PNoy’s frustrations are due not only to his impatience to produce immediate results that apparently drives him to employ similar questionable means used by his predecessor, but also because of the many loopholes, ambiguities and defects in the constitution itself that obviously hinder him from achieving his highly touted promise of having a cleaner, more honest, competent and efficient government.

First and foremost of course is the Constitutional provision barring a President from making “midnight appointments” or appointments within two months immediately preceding the next presidential elections and up to the end of his or her term (Section 15, Art. VII), which is actually the root cause of Corona’s impeachment. Obviously, the purpose of this provision is to prevent the outgoing president from putting his or her own people in strategic government offices as rear guards to cover up or block his or her prosecution for perceived acts of lying, cheating and stealing committed during his/her term. This Constitutional provision seems clear enough to a great majority. But the Supreme Court (SC) still found it somewhat vague and interpreted it nevertheless which many thought was a blatant act of justifying the appointment of Corona, a known ally of former president GMA, as Chief Justice.

The allegedly vague provision, as exactly worded, bars the President to “make appointments except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety”. The SC said that “appointments” here refer to appointments in the executive department except temporary ones. Apparently, the SC cannot really be flagrantly wrong since the provision falls under the Article on the Executive Department (Article VII). Hence to avoid further controversies on the matter, the provision should be amended by specifying that the President cannot make “any appointment” within the said two month period.

Another provision of the constitution calling for change is on the initiation of all cases of impeachment by the House of Representatives particularly Section 3 (4) which provides that when “the verified complaint is filed by at least one third of all the members of the House, it shall already constitute the articles of impeachment and trial by the Senate shall forthwith proceed”. As shown by the impeachment of Corona, this is nothing but tyranny of numbers that results in a hastily prepared complaint and lack of preparation. Besides, it also amounts to a denial of due process since the respondent is not given the opportunity to present his side in the determination of the existence of probable cause on his liability for impeachable offenses. It will be better if this provision will just be removed so that every verified complaint should first be referred by the House to the proper committee for hearing as to the existence of probable cause. Anyway, Section 3 (3) already provides that a vote of at least one-third of all the members of the House can either affirm or override the resolution of the Committee favoring the filing of the Articles of Impeachment.

The ongoing controversies surrounding the real nature of an impeachment proceeding and the power of the Senate as impeachment court also require some clarification that should be incorporated in the constitution. There should be some specific constitutional provision explaining the political aspect of impeachment. Some experts believe that in convicting an impeached official more importance should be given to what is good for the country and the people as expressed by the people themselves mainly determined through poll surveys, since impeachment is political in nature. Others however believe that since impeachment results in the removal of the official from office and since impeachable offenses are criminal in nature, the conviction must be based on evidence beyond reasonable doubt. The constitution must have some provision to resolve these clashing schools of thought. Is it really a good national policy to convict an impeached official on the basis of popular sentiment than on the basis of the evidence proven?

Another possible clash that should be averted by means of a constitutional provision is the extent of the power of the Senate as impeachment court, vis a vis, the SC’s power of judicial review. Under the present constitution, it is clear that the SC has the power to determine whether any other branch or instrumentality of the government has committed grave abuse of discretion amounting to excess or lack of jurisdiction. Pursuant to this power, the SC is not asserting its supremacy over another branch of government but only upholding the constitution. It is not clear however whether the Senate as impeachment court has the absolute power in impeachment cases such that its decision in impeachment cases is no longer subject of review by the SC even if its decision or ruling may be in violation of the constitution. A clear delineation of the Senate’s impeachment power and the SC’s power of judicial review must also be set by the constitution.

Also needing a review is the constitutional provision creating the Judicial and Bar Council (JBC). As it is now turning out, the JBC has not really been effective in assuring that appointments in the judiciary are insulated from politics and pressure from politicians especially from the president. The example cited now is Corona’s choice by the JBC for SC Chief Justice obviously because he is also Malacanang’s choice. It seems that the previous set up giving the Congressional Commission on Appointment (CA) the power to confirm or reject the appointments in the judiciary is much better. The JBC should therefore be abolished already.

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