Ex-SC magistrates, Consti framers clash over timing, reason behind Cha-cha push

Jauhn Etienne Villaruel, ABS-CBN News

Posted at Jan 27 2021 10:02 PM | Updated as of Jan 27 2021 11:48 PM

Progressive groups hold a protest against charter change in front of the House of Representatives in Quezon City on January 13, 2021, as the lower house commences with a committee hearing on the said measure proposal. Mark Demayo, ABS-CBN News

MANILA – Several legal luminaries, among them former Supreme Court (SC) magistrates and framers of the 1987 Constitution, clashed Wednesday before a Senate panel tackling attempts to revise economic provisions of the country's 3-decade Charter.

The Senate committee on Constitutional Amendments and Revision of Laws held its first hearing over Resolution of Both Houses No. 1 that seeks to amend certain "restrictive" fiscal provisions of the 1987 Constitution amid the backdrop of the country's pandemic-battered economy. 

Former SC associate justice Vicente Mendoza said lawmakers must first address "2 challenges" before even tinkering with the Charter. 

"These 2 are the threat of the pandemic and the preparation of our people for voting wisely to choose those who will govern us in the next 6 years," Mendoza said. 

"Now, the economic recovery can take place after these," he said. 

However, another former SC magistrate, who was also a member of the Constitutional Commission that drafted the 1987 Constitution, had a different opinion.

"It is high time that we address the need to amend the restrictive provisions of the Constitution, precisely because of the negative impact of the pandemic on the economy... If we try to solve the economic impact of the pandemic without addressing the economic provisions, it's like fighting with one hand tied behind your back," former SC justice Adolfo Azcuna said. 

Liberalizing the economy, Azcuna suggested, would align the Philippines with its regional neighbors in terms of economic growth. 

"We cannot fully utilize the available tools for economic recovery if we do not address these restrictive provisions of the Constitution," he said.

'TINKER KNOWLEDGEABLY'

Azcuna reminded lawmakers to "tinker knowledgeably" with the Constitution after he flagged what he perceived as faulty language in the proposed amendment.

"For instance, I noticed in the proposed resolution... [which stated]: The state shall protect the nation's marine wealth and its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively by the Filipino citizens, unless otherwise subsequently provided by law," Azcuna said. 

He said the last phrase "unless otherwise subsequently provided by law" was misplaced and poses danger in the country's territorial integrity.

"I submit that this is a wrong placement... because then a law can provide that the nation's marine wealth will no longer be protected by the state... So we have to be careful [where we] insert this," Azcuna warned. 

"Change the 60-40 [foreign ownership rule], but not change the directive to protect the marine wealth of our country... It is very important when you tinker with the Constitution to tinker knowledgeably," he advised.

'BEDROCK' PROVISIONS

Azcuna told lawmakers that when they drafted the Constitution over 30 years ago, they intended the economic provisions "to last not more than 5 years." 

"We wanted the Constitution to be untouched for 5 years to see if it works. After that, the economic provisions should be flexible... Others are meant to be bedrock principles that embodied the ideals fo our people," Azcuna said.

Christian Monsod, another framer of the 1987 Constitution, disputed Azcuna's recollection.

"I just want to take issue with my friend, Justice Azcuna, because I don't remember in the Constitutional Commission that we meant the economic provisions to last for only 5 years... I don’t remember [that]," Monsod said. 

5 'FAILED' ATTEMPTS

For Monsod, there was a glaring reason why the 5 previous attempts to revise the 1987 Constitution have always "failed." 

"All of these past attempts were unsuccessful because the people perceived the articulated purposes as a smokescreen for self-serving ends," Monsod told lawmakers.

Monsod said the rationale behind the latest Charter change push was grounded on "wrong analysis" of data and "incompetent implementation" of the country's available fiscal tools.

"Given our experience with corrupt legislators and greedy business in transactional legislation, are we willing to entrust to our legislators that kind of power?" he said as he warned against lawmakers' interest in foreign direct investments.

Florangel Rosario Braid, another framer of the 1987 Constitution, echoed Monsod, saying liberalizing the economy would not lead to "tsunami of investments."

Citing studies, she said foreign investors are more spooked by the political environment and corruption in the country.

"Lifting the economic provisions will not affect the investment climate and generate the much needed investments and jobs to counteract the economic contraction caused by the pandemic, according to some economists. During a period of instability and because of need to focus on the pandemic, it may not be the right time to open the economy," Braid noted.

Moves to amend the 1987 Constitution originated from the House of Representatives as lawmakers sought ways to attract foreign investments, which they said are prevented by "restrictive" provisions in the Charter.

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