Other constitutional revisions

Quite apart from President Duterte’s proposal to change our centralized form of government to the federal system, a number of other constitutional provisions may have to be revised. Since Charter change (Cha-cha) would be undertaken, whether by constitutional convention (Con-con) or constituent assembly (Con-ass), the Cha-cha may as well delve into other basic reforms.

Philippine territory. The very first article of our Charter, “National Territory,” needs to conform to the United Nations Convention on the Law of the Sea. The article does not expressly include the exclusive economic zone (EEZ) and continental shelf (CS) our country so valiantly fought for and won in the arbitration case it filed against China.

Article 1 simply states, “The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the sea bed, the subsoil, the insular shelves, and other submarine areas.”

While the provision mentions “territorial sea,” it is silent on the EEZ and CS. And while the phrase “all other territories over which the Philippines has sovereignty or jurisdiction” may arguably refer to and include our rights over the EEZ and CS, it would be better, in my humble view, to expressly incorporate them in the provision, given that the Constitution already mentions “territorial sea” in the enumeration of what are included in its “terrestrial, fluvial and aerial domains.”

Bail in capital offenses. On the Bill of Rights, the right to bail in capital offenses needs clarification. Section 13 of Article III of the Constitution states: “All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

Simply stated, this means that every accused person, whether citizen or alien, man or woman, young or old, enjoys the right to bail, the only exception being those charged with capital offenses, i.e., those punishable with reclusion perpetua (or life imprisonment) when the evidence of guilt is strong.

In the separate bail petitions of former president Gloria Macapagal Arroyo and former senator Juan Ponce Enrile, their lawyer, Estelito P. Mendoza, argued that the issue of whether the “evidence of guilt is strong” can be determined only after the prosecution has presented its evidence to the trial court. It cannot be determined without going through a prior trial.

He contended that until such trial is concluded, no judge can say whether the prosecution’s evidence is “strong.” Therefore, the accused (like Arroyo and Enrile) should not be detained till after the court determines the strength of the evidence. Should the evidence be proven to be “not strong,” then the detained accused would have been unjustly punished by his prolonged detention.

The Office of the Ombudsman countered that Mendoza’s argument, if granted, would change the age-old procedure of detaining those charged with capital offenses even before any evidence is presented in court by the prosecution.

They argued that Mendoza’s contention would result in a legal loophole allowing the accused to hide and/or leave the country, since they would know that the evidence—when presented—would result in their indefinite detention.

While our Supreme Court has chosen not to rule on the issue and directed the release of the accused on some other grounds (Arroyo was released after the Court granted her “demurrer to evidence,” which is equivalent to an acquittal, while Enrile was granted bail due to his old age and ill health), the Mendoza argument needs to be met head-on by clarifying the true meaning of the constitutional exception.

The grant of Arroyo’s demurrer simply meant that the prosecution’s evidence was not strong; it failed to prove Arroyo’s guilt beyond reasonable doubt. That being the case, Arroyo was no longer required to present any proof to disprove or rebut the insufficient prosecution evidence.

Nationalistic provisions. Long waiting for constitutional review are the nationalistic economic provisions. These include the 60-percent Filipino citizenship requirement in the (1) “exploration, development, and utilization of natural resources,” (2) transfer and conveyance of private land, (3) operation of public utilities, and (4) ownership of educational institutions, other than those run by religious groups and mission boards.

Also to be reviewed is the 100-percent requirement in the ownership and management of mass media, given the reality that foreign networks, like CNN and BBC, are already allowed to be broadcasted and that foreign publications are freely sold in newsstands. Ditto for the 70-percent Filipino citizenship requirement to engage in the advertising industry.

Former speaker Feliciano Belmonte batted for a simple amendment by allowing Congress to determine the exact Filipino ownership percentage in these businesses. This will give the country enough flexibility to adjust the citizenship requirement pursuant to the needs of the time.

In this way, the Con-ass or Con-con need not spend too much time on the issue and at the same time assure flexibility in meeting the challenge

of promoting the economy and of protecting Filipino investments.

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