1986 Charter framers should explain the ‘hereby’ formula for charter-making

First word

IT is salutary that we still have in our midst many former members of the 1986 Constitutional Commission, who were handpicked by President Corazon Aquino to write the 1987 Charter. A good number of them remain active in the public square, and they have lately joined the discussion of proposed amendments to the Constitution, and proposed new laws.

The latest to join the discussion is Ms Florangel Rosario Braid, who, according to a report in the Times, is of the opinion that the proposed Bangsamoro Basic Law

(BBL) is constitutional. Her position is similar to that taken by retired Supreme Court justice Adolf Azcuna, also a Con–com member.

Another Charter framer who has assiduously expressed his views on constitutional reform is lawyer Christian Monsod. Of course, no one dares to top former Chief Justice Hilario Davide in declaring on live TV that the 1987 Constitution is “the best in the world.”

Methinks Davide needs a lesson from Donald Trump on how to sell dubious claims and exaggerations as “truthful hyperbole.”

There are more Charter framers who are still active professionally; they will surely take part in the Charter change debate in their good time.

Explain meaning of hereby provisions

It occurs to me that the nation can greatly benefit from the framers’ recollections of the 1987 Charter- drafting process, if they can enlighten us on what the framers meant when they wrote that a government office or agency is “hereby created.”

Was this a deliberate stylistic choice? What exactly did they mean

Did the framers really believe that created this way? Are they serious about supplanting the congressional - propriate funding for them?

Fr. Joaquin Bernas, S. J, himself a 1986 Charter framer, observed that circumventing the congressional - way will die “before it is born.”

1935, 1973, 1987 Charters compared

My volume on the 1987 Constitution is felicitous. It contains not only the text of the present Charter, but also the texts of the 1935 and 1973 Constitutions. It helps me make quick comparisons of the Charters on specific provisions and question.

I scoured yesterday the 1935 and 1973 charters, to see if they created or directed the creation of adverb “hereby.”

It turns out that the drafters of the earlier charters were clearsighted about what they wanted to see in the design of future governments. The word “hereby” can nowhere be found in the texts. They did not think or talk that way.

Judicial and Bar Council

My story is not done. Bugged by the thought that the 1987 Constitution may also contain other “hereby provisions” for offices or agencies, I decided to review the Charter yesterday, page by page, article by article, and section by section. Surprisingly, this is not all that difficult.

I found out quickly that the Charter framers were more sensible than I feared. They did the mold of the Ombudsman’s Office and the Human Rights Commission.

But there is one more section where the “hereby” formula magically appeared. It’s the provision for a “Judicial and Bar Council” in the judiciary: Article VIII, s\Section 8 of the Charter. The provision reads: “A Judicial and Bar Council is

hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex Justice, and representatives of the representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector.”

No one should be surprised that each office ( commission, council or agency) created through a “hereby” has caused the nation a lot of headaches, from which we have not recovered. The provisions plainly did not go through the rigors of debate, cogitation and editing.

Other provisions better crafted

The laziness in the writing of the hereby provisions is manifest when you read them alongside the other provisions wherein the Charter framers moved to create a new office, or directed the Congress to create it. The wording is clear, direct, and resolute.

provisions:

“There shall be a Commission on Appointments consisting of the President of the Senate, as and 12 members of the House of Representatives.”

“There shall be autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historic land and cultural heritage….

“The Congress shall enact an organic act for each autonomous region. The organic act shall - ernment for the region consisting of the executive department and legislative assembly.”

“The Congress may establish an independent economic and planning agency headed by the president, which shall… recommend to Congress, and implement continuing integrated and coordinated programs and policies for national development. “Until the Congress pro- vides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.”

“The Congress shall establish an independent Central Monetary Authority, the members of whose governing board must be natural– born Filipino citizens, of known probity, integrity and patriotism, the majority of whom shall come from the private sector.”

“The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission.”

“Until otherwise provided by the Congress, the president may constitute the Metropolitan Authority to be composed of the heads of all local government units comprising the Metropolitan Manila area.”

Sturdy vs vexing govt agencies

By using the word “shall” instead of relying on “hereby,” the 1986 Con- com completed the architecture of our fourth Republic. The Congress dutifully created the offices as instructed by the Constitution.

Compare the sturdiness of the Bangko Sentral ng Pilipinas (BSP) and the National Economic and Development Authority (NEDA) with the vexing histories of the Ombud Council (JBC) and the Commission on Human Rights (CHR).

Honorable members of the 1986 Constitutional Commission, who was the stylist who came up with the dumb idea of

He or she could be one of those writing a new draft Charter on President Duterte’s orders.