EXPLANATORY NOTES
The provision is self-explanatory. It is an attempt to provide speedy disposition of cases in the Court of First Instance.
Article 46. When a constitutional issue is raised in a case involving private law, it shall be raised by the Judge to the Constitutional Tribunal which shall decide the issue by its division of constitutional law composed of nine of its members. The case pending before the Judiciary on private law shall be suspended until the ruling on the constitutionality thereof is decided by its Constitutional Tribunal.
EXPLANATORY NOTES
The procedure established in this Article is innovative. At present, constitutional issues do not have precedence in having the issue decided. The result is that cases are litigated for a long time on the assumption that the law, which supports one of the contending parties is constitutional. When the case reaches the Supreme Court, the law is declared unconstitutional and all the procedures previously followed in many cases constitute a waste of time by the contending parties and the judges of the lower courts.
This Article provides that when a constitutional issue is raised in a case involving private law, the constitutional issue will be elevated by the Judge to the Constitutional Tribunal, which will decide the issue. The case of private law pending before the Judiciary will be suspended until the ruling on the constitutionality is decided by the Constitutional Tribunal.
Article 47. A criminal case may be instituted by the offended party as a civil case without the intervention of a prosecuting attorney. Once the plaintiff believes that he has introduced sufficient evidence in Court that has proven prima facie, the criminal responsibility of the defendant, upon motion, the Court may convert the case into a criminal case and shall fix a bond unless the gravity of the case would require the custody of the defendant by the State.
EXPLANATORY NOTES
The purpose of this Article is to reduce to the minimum the need for intervention of the prosecuting attorneys. An offended party to a crime can file his case with the assistance of his own private lawyer as a civil case, and once sufficient prima facie evidence have been submitted, may convert the case into a criminal case and demand that the defendant must file the necessary bond to guarantee his appearance in Court. This is especially important in cases of fraud or malversation of funds where the dividing lines between civil and criminal responsibility are subject to many interpretations.
Article 48. Attorneys in the Bureaus, Moderating Commissions, and Authorities of the Government entrusted with the duty of implementing a law, may file the corresponding civil or criminal action in Court after proper investigations and due process, without having to refer the case to the prosecuting office.
EXPLANATORY NOTES
Bureaus, Commissions, and Authorities of the Government, entrusted with the duty of implementing a law, are full of legal officers. They have to investigate hundreds of violations of the law which the Bureau or the Commission is required to uphold.
These legal counsels of the executive power should be entrusted with the power to prosecute the guilty party and present the evidence directly to the Court of Justice. This provision will lighten significantly the work of our prosecuting attorneys.
CHAPTER VI
MODERATING POWERS IN THE GOVERNMENT
Article 49. There shall be a Constitutional Tribunal composed of 31 members. It shall be the highest moderating power. It shall have jurisdiction over all impeachment proceedings and all other cases involving public law. The Constitutional Tribunal is the supreme authority to decide on the constitutionality of any act of a legislative or executive body. It shall have appellate jurisdiction over all courts involving public law, and appoint the public officials mentioned in other parts of this Constitution. It shall organize itself en banc and in divisions specifying their respective jurisdictions.
Article 50. Aside from its judicial powers, the Constitutional Tribunal shall appoint and supervise all the moderating powers which shall include the Commission on Elections, the Civil Service Commission, the Commission on Audits and the Tribune of the People.
Article 51. The Constitutional Tribunal shall propose to Parliament the organization of specialized courts under it, such as courts with jurisdiction over taxes, election laws, graft and corruption, sedition, and subversion.
Article 52. The members of the Constitutional Tribunal shall hold office for nine years. In the first appointment for its organization, 11 shall serve for nine years, 10 for a term of eight years, and ten for a term of eight years, and ten for seven years. In all subsequent appointments to fill a vacancy, the appointee shall serve for nine years. Sixteen of its members shall be appointed by the Chief Justice of the Supreme Court with the approval of the said court, and the remaining members by the Troika with the consent of the Commission on Appointments of Parliament. Subsequent vacancies shall be filled with appointees by the Chief Justice, alternating with the Troika.
EXPLANATORY NOTES
Articles 49 to 52 are, to a great extent, self-explanatory. The Constitutional Tribunal is the highest moderating power with jurisdiction over all impeachment cases and all cases involving public law, the most important being decisions on the constitutionality of Acts of Parliament and of the State Assemblies. Public law would, in addition, involve conflict
of jurisdiction between public offices in all levels of Government, taxation cases, election disputes, graft and corruption, sedition and subversion (Article 18).
In addition to deciding cases, the Constitutional Tribunal shall have the power to supervise the Constitutional Commissions: namely, the Civil Service Commissions, the Commissions on Elections, and the Commission on Audits. In this respect, it will take the function of the President of the Republic under our former presidential system and the existing parliamentary system.
Two-thirds of the members of these Commissions shall be appointed by the Chief Magistrate of the Constitutional Tribunal with the consent of the Tribunal, and one-third by the Chief Justice of the Supreme Court with the consent of the Court (Article 52).
The 31 members of the Constitutional Tribunal shall have a term of office for nine years. However, in the first appointment, for its organization, 11 members shall serve for nine years, ten for eight years, and ten for seven years. This plan will avoid the vacancy of the entire membership of the Constitutional Tribunal and the need of replacing all of them in one year.
Sixteen of its members shall be appointed by the Chief Justice of the Supreme Court, with the approval of the Court, and the remaining members by the Troika (a majority thereof), with the consent of the Commission on Appointments of Parliament. Subsequent vacancies shall be filled by appointees by the Chief Justice alternating with the Troika (Article 52).
The Parliament, upon recommendation of the Constitutional Tribunal, will create specialized courts with jurisdiction over public law as already enumerated (Articles 51).
At this point, it is pertinent to stress the importance of the rule entrusted to the moderating powers of the Government. This is a very distinct feature of this draft of the Constitution. It significantly reduces the dominance of the active operating powers.
This new division of powers into constitutional, active, operating, and moderating is a natural evolution long overdue from the Montesquieu concept of three powers in a government: the executive, the legislative, and the judicial.
In our tripartite system of government, we start with Constitutional Power. It is too important to remain concealed in the hierarchy of official political powers. In the United States, the Supreme Court has assumed constitutional powers. We say āassumedā because nowhere in the U.S. Constitution are those powers expressly delegated to the Supreme Court. Granting that it is merely interpreting the Constitution, such an interpretation is binding on the Executive and Legislative Powers. Call it interpretation, consider it a de facto amendatory power of the Constitution, it is still obviously a governmental power.
In this draft, the power to interpret the Constitution, which is certainly a public law matter, is not vested in the Supreme Court, an active operating power, but in the Constitutional Tribunal, the supreme moderating power. The Constitutional Tribunal will have jurisdiction over cases interpreting the powers and jurisdictions of different organs of Government: Federal, State, and Local.
There will be only one Constitutional Tribunal lodged in the Federal government. The States shall have a share in the moderating powers of the Government, particularly with the creation of Civil Service Commission as well as a Public Service Commission in each of the 5 States. However, the Electoral Commission on Audits as well as the Tax Collection Authority are all Federal with jurisdiction of covering the entire Republic of the Philippines. (To be continued/PN)
