Saving democracy by rejecting the proposed constitution

PAPER VIEW
By ATTY. MEL STA. MARIA

Replacing the 1987 Constitution with the Consultative Committee’s draft constitution is an adventure not grounded on a fundamental necessity.

The country’s problems — high prices, weakening peso, China’s aggression, unabated drug problem, high crime rate, extrajudicial killings, NPA insurgency, workers’ contractualization, housing scarcity, graft and corruption — are not traceable to the 1987 Constitution. They are caused by the acts or omissions of those managing the country’s affairs who are incompetent or have been disregarding, violating, not defending or implementing the constitution and, worse, who may be ignorant of it.

Let’s discuss some of the draft-constitution’s repugnant provisions.

First. It provides that “the right of persons to privacy shall be inviolable. Without lawful court order, all interference in personal and domestic relations, correspondence, and data are proscribed.” At first glance, it looks good but , because “persons” is unqualified – thereby including both private individuals and public officials, it is actually a provision usable by corrupt officials to avoid the investigation of their ill-gotten wealth. As an enlightened Supreme Court ruled in 1960, a government official’s “private life cannot be segregated from his public life.” Their privacy is not inviolable. Only their personal information’s ready availability can conflicts-of-interests be determined.

It is wrong to make accessibility of public officials’ personal data initially depend on a court order. Court processes cause delay and, if manipulated by politicians, negate a citizen’s right to investigate corruption. The rule must be immediate accomodation upon a citizen’s demand. Going to court must not be a burden to the inquiring citizen who must be presumed in good faith, but, rather, to the public official desiring to stop the release.

Second. The right to information is “subject to such limitation as may be provided by law.” The right is non-existent until legislation is made. Do you think legislators will pass laws that will expose them? The draft-constitution makes it easy for officials to frustrate legitimate inquiry into their shenanigans, enhancing an environment of impunity
Third. Unreasonable search extends to “unlawful unreasonable surveillance through technological, electronic or any other means.” Unlike the personal-encounter with the searchers in a normal search, surveillance allows snooping and eavesdropping into a person’s private life. Its surreptitious nature necessitates higher standards — such as permissibility only upon clear prior showing of a great danger to national security, public safety or health. The absence of these standards in the draft constitution provides a potential “legal” tool for unchecked fabrication of “probable cause” leading to human rights violation, harassment and blackmail by government officials with autocratic tendencies.

Fourth. The Supreme Court’s quo warranto power is maintained which, following the controversial Chief Justice Sereno decision, includes ousting its own members via a case filed by the Office of the Solicitor General, an agency under the executive department. A president with dictatorial inclinations can take advantage of this to intimidate the judiciary. Judicial independence will constantly be threatened.

Fifth. A vote for the President is a vote for his/her vice president. The voter is deprived of choosing a vice president not allied to the [resident. Nothing wrong with that rule where check-and-balance-institutions are effectively working. But where they are not, like in the Philippines, an opposition vice president is essential for democracy’s survival. The pervasiveness of patronage politics, a submissive House of Representative, an unassertive Senate, and a divided Supreme Court make the Office of the Vice President the only institution to officially oppose a conniving autocracy.

Sixth. The draft constitution provides that President Duterte’s term “shall not be extended.” It does not prohibit re-election. Why is this wrong? In every presidential election since President Ramos, the people – whether voting for the winner or loser — are assured that the victor will only have a six-year term. This a priori fundamental covenant by all presidents must be honored. World history and our own teach us an important lesson transcending constitutional precepts: overstaying in power by any means is the hallmark of a despot — like Hitler, Mussolini, Stalin, Tojo, Idi Amin, Marcos, Pol Pot, Saddam Hussein, Al-Gadaffi — with catastrophic and deadly consequences.

The Consultative Committee’s draft-constitution must therefore be rejected, not only because of its proposed anti-poor and pro-tax federal government as explained by former Chief Justice Hilarion Davide, but also for providing “constitutional” devices and shields for any future oppressive government to thrive. Remembering Charles de Monstesquieu’s warning: “There is no crueler tyranny than that which is perpetuated under the shield of the law and in the name of justice.”

 
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