Constitutional reform, law students and lawyers
IN discussions with students who are torn between taking the Bar examinations this year and deferring it for next year, I found that the most common reason for an immediate Bar exam is the fear of an examination under a new federal constitution. Lower-year law students – even the higher ranking ones – who studied their political law under the 1987 Constitution voice the same concern.
In all seriousness, I told them that they need not worry; while details may change, general constitutional and political law principles remain firmly in place. Our 1974 Bar exam batch in fact suffered from the same dilemma; as students, we studied the 1935 Constitution but were examined under the 1973 Constitution.
In jest, I told them: the initial Bar examiners under a new constitution would have all studied under the earlier Constitutions, and would not have fully adjusted their thinking to the new one!
I cannot blame these students for their apprehensions, though; even a cursory examination of the ConCom draft reveals new concepts and ways of thinking that deviate from our currently accepted realities.
The concept of federalism alone – with a central government and semi-autonomous regions operating at different levels on their respective competencies – can be intimidating to those whose mindset and frame of reference have been the unitary structure of government. Add to this new concept the distribution of powers between the federal government and the regions, and the proposed provisions on fiscal powers and financial administration, and a lot of complications can already be imagined.
The proposed Bill of Rights likewise carries significant conceptual changes, newly recognized rights, and more details in the previously recognized rights. The current Bill of Rights, linked to the Americans roots of our constitution-making, guarantees specific individual rights as against the State; the ConCom draft, provides for the enforcement not only of civil and political rights found in the 1987 Constitution, but also of social, economic environmental and ecological rights, with all these rights enforceable against the State and “non-state actors.”
More teeth have been given under the ConCom draft to governance measures and the enforcement of granted rights through the constitutionalized and invigorated constitutional commissions that now include a Commission on Human Rights, a Federal Ombudsman Commission, and a Federal Competition Commission.
A lot of the 1987 Constitution arrangements survive, however, generally suffering only the changes that federalism brings with it. Thus, there is still one Congress whose powers remain essentially the same; the changes are mainly due to the powers devolved to the federal regions under federalism. While a Senate and a House of Representatives remain, the manner of choosing their members changed; issues peculiar to Congress under the 1987 Constitution have likewise been addressed.
As in the current Constitution, the President retains the power to implement the laws; to control the executive branch; to exercise the Commander-in-chief powers (including the expanded power to suspend the privilege of the writ of habeas corpus or place any part of the country under martial law); to appoint other executives and specified officials of government; to grant pardons and paroles; and to exercise foreign affairs powers.
Generally, the 1987 presidential powers are reduced only to the extent that part of these powers have been transferred to the federal regional executives. The President, though, remains the strong executive that he was under the 1987 Constitution and has even acquired greater flexibility under the ConCom draft.
The draft’s Judicial Department, as discussed in my previous articles, has suffered the most because it has effectively been dismembered through the creation of four Supreme Courts. Beyond this, there shall now be regional supreme courts, appellate courts, regional trial courts, lower courts, and special courts.
The effect, to my mind, is an institution blanketed in “smoke and mirrors” – a seemingly powerful and effective judiciary but one that is bloated, costly, and whose real powers, as against the executive and the legislature, are diffused. The judicial veterans among the ConCom apparently saw problems of the Judiciary in minute discrete parts, but overlooked the whole.
Whichever way the constitutional reform winds may blow, lawyers will always fly high in our litigious society, but will end up flying higher and in ever widening circles under the ConCom draft.
The bloated judicial structure offers vast opportunities for feegenerating litigation, mediation, conciliation, and even arbitration. The additional rights under the Bill of Rights and the distribution of powers between the federal government and the federal regions cannot but also be rich and fertile grounds for lawyers’ professional services.
Not to be forgotten are the old and the new constitutional commissions as well as the Executive’s quasijudicial machineries, where lawyers can offer their specialized expertise. It has been estimated that more lawyers practice in quasi-judicial bodies than before the courts. Lawyers, too, will have more employment opportunities under federalism’s bloated bureaucracy.
This listing of areas of opportunity does not even consider yet the possibilities within the ASEAN region where barriers to professional practice are falling fast, and where Filipino lawyers may soon be practicing extensively. There, too, are the employment possibilities in the higher-paying private sector where lawyers are welcome, not only in the strictly legal areas, but even in tangential law-related services.
I offer all these thoughts as open invitations to take up law to those about to decide on their lifetime career, and to urge law graduates to hasten their admission to the Bar.