April 25, 2019 – the Inter Agency Task Force on the Structure of the Federal Government Cluster (IATF-SGC) held its seventh meeting at the Department of Justice, Ermita Manila. The meeting with the different government agencies was attended by four members of the Consultative Committee to Review the 1987 Constitution (ConCom): Committee Secretary Atty. Gideon V. Mortel, Atty. Susan Ubalde-Ordinario, (ret.) Chief Justice Reynato S. Puno, and LOGODEF Director Prof. Edmund S. Tayao.
The seventh IATF SFGC meeting is the last meeting of the SFGC cluster in consultation with the members of the ConCom. Highlights of the meeting include the clarification on the following topics:
SECTION 2, ARTICLE VII on the number of seats for senators – This particular provision in the draft Constitution had been a source of confusion among the members of the clusters. Chief Justice Puno explained that in the Bayanihan Constitution, there is a difference on the electoral process of the House and the Senate. The House of representatives’ seats is determined by population which is why there is a census requirement.
The representation on the Senate on the other hand is based per region. According to Chief Justice Puno, the rationale for this is that the provision is patterned after the US model where they follow the principle of equalizing the unequal. According to Chief Justice Puno, there is no small state in the United States that is not represented; whereas, in the Philippines, our marginalized Muslim brothers usually have no representation or is underrepresented in the Senate.
Another important clarification is that the mechanism to increase the number of Senators per region should be done through Constitutional amendment. According to Chief Justice Puno, the power to change the number of senators is a power that should not be given to Congress because of the possible misuse it might entail. For Chief Justice Puno, there shouldn’t be any misrepresentation in the Bayanihan Constitution when it comes to this provision.
College degree requirement for public officials in the proposed Constitution – In the last IATF SFGC Meeting, the deliberation on this particular provision was raised by one of the members who claimed that this particular provision is discriminatory in nature and may not be a safeguard in achieving its desired result which is proficiency.
Chief Justice Puno recalls the intensity of the debates in the discussions between the members of the ConCom. It is emphasized in their discussions that it is important to note the wording “college degree of its equivalent” because the additional word of equivalent in this case can mean a lot of things. The principle behind this provision in the Bayanihan draft constitution is that it is not strictly intended for college graduates and that in discerning its meaning; “one must treat likes as alikes, and one must treat unalikes as unalikes”.
For Chief Justice Puno, public officials such as the president is not like everybody else. Chief Justice Puno notes the extraordinary importance in the function and responsibility of the Congress to make laws and that it is not bad to say that our nations leaders should at least have the credentials of being a college graduate or something equivalent. Moreover, it was noted by Chief Justice Puno that when one looks at the composition of the House or the Senate today it can be observed how most of the Congressmen and Senators already have college degrees; and thus, it can be presumed that having this provision in the proposed Constitution would not shake the current state of affairs too much. Finally, according to him, it is one policy that the public clamors for.
5% threshold proposal of the party system in the proposed Constitution – Chief Justice Puno clarifies that the intent behind this provision is to address the existing deficiencies of our current partylist system. The real intent behind the partylist system is to represent the marginalized groups. For the retired Chief Justice, it is the aspiration of the members of the ConCom to strengthen the party system through the prohibition of political dynasties and ‘political butterflies’. At the same time, the ConCom exerts their effort, through their draft Constitution; that the distinct sectors of the marginalized are properly represented. Examples of these marginalized groups include farmers, Indigenous Peoples (IPs), and all kinds of laborers.
More importantly, Chief Justice Puno clarifies that the 5% threshold in their proposal is absolute. One of the reasons for this strict policy is to address a Supreme Court decision when he was no longer present. A decision which according to the former Chief Justice was erroneous.
Members of the IATF SFGC yet again failed to have a resolution on this matter.
Accreditation process of the parties – this is in relation to the 5% threshold provision of the Bayanihan draft Constitution. While members of the IATF SFGC noted the importance of the process of accreditation of political parties, the unwanted possibility of the COMELEC accrediting hundreds of political parties can still be addressed by the higher seat cap. This means that, even if there are a lot of accredited political parties still they must gain 5% of the total number of votes which is harder.
The remaining problem therefore is what if a a certain party will gain 100% of the seats. It was expressed in the cluster that if that is the case, “then it will be what the people wanted”. Professor Tayao comments on this issue; for him, it is right to assume that Bayan Muna or some political parties can dominate the seats.
Prof. Tayao notes that the current Proportional Representation (PR) System one can observe how the people are voting individuals, not the party. “This is what we are trying to cure”, said Prof. Tayao. In this case with the 5% provision in effect, for the case of a very small party they will be inclined to merge with a bigger party.
In conclusion to the discussion in this provision, the participants all agreed to look into the accreditation process as something that should be addressed in harmonizing the draft Constitution.
Definition of lawless violence – It was raised on the previous IATF SFGC meetings that “lawless violence” as mentioned in the draft Constitution be defined. Chief Justice Puno’s response to the pending question is that it should be left as is.
“What we are looking at is a metamorphosis of violence”, said the former Chief Justice. There is a different kind of violence we had in the past and the one we have now is also different. In the past there was no ISIS or cyber attacks; this is evidence to support that the kind of violence that we now is different. The intent is since it is very difficult to define violence – it’s wording should not be static. Chief Justice Puno expressed that what is important is that the checks against abuses will still be found in the proposed Constitution.
Why there is a need for more than one Supreme Court – The former Chief Justice Puno narrated how since time immemorial we only have one Supreme Court which is only composed of 9 Justices. In the proposal, the changes being introduced is that the ‘oneness’ of the Supreme Court is maintained through the increase the number of Justices and allow the Supreme Court to decide cases in division. What happens now is that there are 3 divisions in the Supreme Court each containing 5 Justices; the decision of each is a decision en banc. In other words, there are now three courts within the Supreme Court.
The former Chief Justice explained that the question now is the philosophy behind the ConCom proposal. Chief Justice Puno notes that at the moment our Supreme Court is composed of generalist Justices – these are justices that have no distinct specialization in their study of the law and thus they are expected to know everything. In the new system, what is being introduced is a mixture; whereas, in each court each justice is a specialist. What happens therefore if the provision is finally in effect is that if one wants to be a lawyer in a particular court then one should be a specialist in the specific legal court aspired. What is being proposed is a mixture of generalists and specialists.
On the advantage of this proposal, it means that since there is a specialization of the Justices, it is very likely that the quality of the decisions would be better. Chief Justice Puno observed how our Supreme Court is in fact, the only Supreme Court that has not only judicial powers, but also has non-judicial powers. According to him there is no other Supreme Court in the world that has this kind of power.
Another important aspect of the changes being introduced into the courts as discussed by Chief Justice Puno is the ration in the ConCom formula. The number of justices is determined according to the size of the population – similar to how the number of policemen is determined according to the size of the population. Chief Justice Puno notes how the in the 1987 Constitution there is the mandatory language mandating the number of Justices. The ConCom identified this specific provision on the 1987 Constitution as the root of the problem and attempts to offer the more appropriate response.
The final matter discussed in the meeting is the schedule of the next IATF SFGC meeting which is agreed to be on May 7 and May 21. It is agreed that the next meetings will be intended for the writing of their proposed changes to harmonize the Bayanihan draft. The members of the IATF SFGC and ConCom members present in the meeting have also agreed that if the cluster will have serious difficulty on their task, they will be able to call again on the members of the ConCom for some guidance.
Meeting concluded at 4:55 pm.