Analysis by Raïssa Robles
The House Committee on Constitutional Amendments started discussing today the “Salient Features” of the draft constitution proposed by President Rodrigo Duterte’s government. The draft constitution itself has not been made public.
It isn’t clear who actually wrote and submitted the “Salient Features”, but the document makes five things immediately clear:
(1) Once the new Constitution is ratified, Duterte will assume at once the powers of both the President and the Prime Minister
(2) Elections next year will be canceled, leaving Duterte’s super majority in control of the legislature.
(3) Duterte will be able to do anything during the transition period.
(4) There is no guarantee up to when such a transition period will last.
(5) Although the whole exercise of changing the constitution is supposed to pave the way for federalism, the draft constitution is very convoluted about implementing federalism.
Charter change is a very complex, very abstract exercise. Those who try to follow the process can easily get lost and confused.
As it turns out, I happen to be in a position to help people understand what’s happening. This isn’t because I’m a legal genius, lawyer or constitutionalist. But I did write long investigative reports on two famous cases of charter change. One was on the 1972-1973 Constitutional Convention, which was published by Business Day during Ferdinand Marcos’ dictatorship. The other was on then President Gloria Macapagal-Arroyo’s Constitutional Commission published by the Philippine Center for Investigative Journalism (PCIJ). Little did I know what I learned writing those reports would prove useful now.
So, what can I tell you about charter change? For me, the most important thing to look at first are the TRANSITORY PROVISIONS, for two main reasons.
First, transitory provisions will determine what happens when we change from the current presidential-bicameral-unitary form of government to whatever they are proposing.
Second, the section on transitory provisions will lay down who will wield the powers during the transition and to what extent that person can drastically change things around.
Let’s look at the transitory provisions in the proposed constitution currently being discussed [underlining mine].
“The incumbent President shall exercise all the powers and functions of the head of state and head of government under this Federal Constitution until the election of the next President and Prime Minister in May 2022. He shall appoint the New Cabinet from among the Members of Parliament. He shall have supervision and direction over the Interim Prime Minister and Cabinet.”
The draft constitution separately designates whoever is the President as the “head of state” and whoever is the Prime Minister as the “head of government”.
However, during the Transition Period, the “incumbent President” – that’s Duterte—will assume the powers of BOTH the President AND the Prime Minister.
This, in effect, will make Duterte much more powerful than he is today.
I can think of many reasons and I’m sure you can think of others.
For starters, the Federal Constitution would place the entire legislature under Duterte’s thumb for the simple reason that we will no longer have our current form of government where the legislature is a co-equal body that checks and balances the President.
Under the proposed set-up, President Duterte controls Parliament. And this means he CAN DO ANYTHING.
In fact, he can even instruct Parliament to further amend THE FEDERAL CONSTITUTION THAT HAS BEEN PUT IN PLACE.
He can even, through Parliament, insert a constitutional amendment saying that while Parliament is not in session or when there is urgent need for it, President Duterte can enact laws on his own.
And there you have it. Duterte will have what those familiar with Ferdinand Marcos’ Martial Law called Marcos’ “Amendment No. 6” power. It was referred to as Amendment No. 6 simply because it was the sixth amendment introduced by Marcos to the 1973 Constitution. Amendment No. 6 legalized Marcos’ law-making powers, which he began to exercise immediately after imposing Martial Law in 1972.
What happened to federalism?
There is something very curious and highly suspicious about the Duterte government’s push for a federal form of government.
The government’s battle cry today is “Federalism”. But when you look closely at what they want to happen, it’s not federalism but something else.
When you look at the “Salient Features” of the proposed charter change – a copy of which I have added below—the process of federating the provinces into separate states won’t happen immediately.
In fact, the process of federating can only take place starting “at least” six and a half years from now—or way beyond Duterte’s tenure of office, which is supposed to end in 2022.
Federating the Philippines may even take 20 years or forever because there is no time limit given for federating.
This is because the draft charter proposes a very complicated process for each State to federate or exercise autonomous powers:
First, Parliament itself is given 18 months to enact a State and Local Government Code to be followed by each State.
Second, the Federal Government will “gradually devolve and decentralize functions” to the States. It doesn’t say how gradual.
Third, for a State to become an autonomous federal State, its State Legislature has to enact an Organic Act.
Fourth, the Organic Act has to be ratified by the people in that State.
Fifth, each Organic Act also has to be ratified by Parliament.
Only then can a State exercise its functions and powers as a Federal State.
HOWEVER—and this I would like to emphasize.
HOWEVER, immediately upon the ratification of the proposed constitutional changes by the Duterte government, the present Congress will be abolished.
An Interim Parliament will be deemed in place, consisting of all the current members of the House and the Senate. It’s unclear from the provision whether the Interim Parliament is unicameral (one chamber) or bicameral (two-chamber).
What is clear is that all the congressmen who are supposed to run for reelection next year will have their terms of office extended until 2022. The same goes for the 12 senators who are supposed to seek reelection or retire from office by next year.
This means that Duterte keeps his super majority control of the legislature intact.
Given all these, we should ask ourselves—what is the real purpose of this charter change? Is it to federate the Philippines or to consolidate powers in the hands of President Duterte?
I would like to thank Jeff Crisostomo,
House reporter for ABS-CBN, communications and legislative officer of Congresswoman Kaka Bag-Ao, who shared online the proposed charter changes below. You can download the copy below.