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The Constitution explained by a man for others


  •   4 min reads
The Constitution explained by a man for others

“A handy book that attempts to simplify the essentials of what the Constitution means might contribute to a more intelligent discussion” - From the introduction

Father Joaquin Bernas, SJ died at age 88 on March 6, leaving a legacy of books and writings that secures his standing as the country’s eminent authority on the Constitution.

Bernas - a bar topnotcher, former Dean of the Ateneo Law School, and president of the Ateneo de Manila University - was a member of the Constitutional Commission hand-picked by then President Cory Aquino to draft the 1987 Constitution.

His book, “The 1987 Constitution of the Republic of the Philippines: A Commentary,” is widely-regarded as the definitive reference material on the Constitution.

But a slimmer volume, “The Philippine Constitution for Ladies, Gentlemen and Others,” stands as the most accessible and highly-engaging printed material we have on the subject. And it is written for the layman.

Published in 2007, the book is deliberately written, says Bernas, in language “which hopefully will be intelligible to non-lawyers.”

“In recent years, the various attempts to revise the Constitution have drawn the public to a debate about the supposed virtues and defects of the current Constitution,” he writes in his brief introduction.

He adds: “The debate has not ended and it certainly will intensify after the elections. I thought therefore that a handy book that attempts to simplify the essentials of what the Constitution means might contribute to a a more intelligent discussion.”

Bernas not only explains the provisions and articles of the Constitution, but gives context and insight into the deliberations that preceded the crafting and approval by the Con-Com members.
Here are some examples:

On the need for checks and balances

Congress is, in theory, an independent and co-equal branch of government, alongside the executive and the judiciary. In practice, the executive has succeeded in asserting its dominance over the two other branches, the legislature in particular.

The three branches - legislative, executive, and judiciary - are inter-dependent, yet their powers separate and distinct. And Bernas explains why it is so: “Each is prevented from invading the domain of the other. But the separation is not total. The system allows for ‘checks and balances,’ the net effect of which is that, in general, no one department is able to act without the cooperation of at least one of the other departments.”

“The purpose of separation of powers and ‘checks and balances’ is to prevent concentration of powers in one department and thereby avoid tyranny,” he adds. But it comes with a price, he explains, and it is the “the risk of a degree of inefficiency and even the danger of gridlock.”

Autonomy

Granting the Cordilleras and Muslim Mindanao the right to create autonomous regions, as explained by Bernas, is “more than just a question of privilege for these two regions. It is a question of right.”

“One of the riches of the Filipino nation is the diversity of cultures found in it. These diverse cultures, as matter of right, must be allowed to flourish. No one culture should be allowed to crush any other. Thus the basis for the establishment of autonomous regions is homogeneity of the culture and distinctiveness from other cultures, and not just geographic incident.”

But Bernas clarifies that the creation of the autonomous regions “does not mean the establishment of sovereignties distinct from that of the Republic.”

The Constitution is very precise in its wording, he says. These autonomous regions can be established only “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”

Civilian supremacy

Have you ever wondered why officers of the Armed Forces of the Philippines (AFP) from the rank of colonel and above are subject to confirmation by the Commission on Appointments (CA)?

This is required under Article VII Section 16 of the 1987 Constitution. Many observers find it impractical, even unnecessary.  But why was this requirement included in the first place? Bernas explains that members of the Commission perceived that coups were “generally led by colonels.”

It was a provision inserted as a response to the times.

By subjecting colonels to the confirmation process, the framers not only wanted a way to identify and weed out potential coup plotters, but remind the AFP, through the Commission on Appointments, of  civilian supremacy.

From two-party to multi-party

The multi-party system provided in the Constitution was intended to promote political parties anchored on vision and principles. But what evolved are parties of convenience, political butterflies, and the absence of serious political thought.

Worst, we have hundreds of registered party-list groups, but only a few can really be considered as representing sectors or advocacies. The party list groups have become the go-to vehicles for relatives of politicians, or politicians who have used up the allowed three terms.

The provision itself is hardly helpful for those mining for the rationale behind this overhaul of our party system. Article IX-C, Section 6 of the 1987 Constitution merely says: “A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.”

According to Bernas, the 1935 Constitution and our election laws and system until 1971 was seen as giving preferred position to the two major political parties.

“The clear impression, which had emerged from the constitutional scheme prior to the 1987 Constitution was that the electoral system planned and plotted to insure the perpetuation of the party in power,” he says.

The multi-party or open-party system was intended to remedy this two-party hegemony, and the party-list system “is meant to be an instrument for fostering the multi-party system,” he adds.

This book should be required reading not only for students and civic-minded citizens but for members of Congress who are perpetually obsessed with tinkering with the Constitution. -JS


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