OPENING STATEMENT – Senate Hearing on Charter Change
February 1, 2018
By Christian S. Monsod
Thank you for inviting me to this hearing.
On the questions raised in your invitation, may I start with the issues of process before talking about the issues on substance.
On the issue of a constituent assembly vs. a constitutional convention. I agree that a constitutional convention has more merits, like more people who have studied the Constitution. But I believe that a constitutional convention of delegates elected by district will likely be dominated by the same political dynasties in the present Congress and may not be any more trustworthy. The fact is that the dynastic rule of an estimated 200 clans in our country is so deeply entrenched in our culture and political system today that the assumption that a constitutional convention will have a different profile is a leap of logic. The same illogic can be said about the assumption that changing the structure of government will change the behavior of our politicians.
In a Constituent Assembly, my position is that it should be a separate vote. I concur with the reasons already expressed hear by legal experts - that the Constitution provides for a bicameral Legislature with each chamber having its own rules, prerogratives and responsibilities and that, based on the principle of hierarchy of laws, charter change should at the least be treated the same as ordinary laws.
May I add two more reasons:
- Firstly, under the Rules of the House of Representatives, Rule XX, Section 142 states: “… the adoption of resolutions proposing amendments to or revision of the constitution shall follow the enactment of bills”, which is, of course, means separate meeting and separate vote. This may have been overlooked by some people.
Secondly, there is a least one precedent on the vote. There are 2 other provisions where the Constitution prescribes a vote of “all the members of the Congress”, without specifying whether joint or separate, namely, Art. VI, Sec. 28 on tax exemption and Art. VII, Sec. 19 on the grant of amnesty. In 2010, Pres. Aquino granted amnesty to now Sen. Trillanes and others and he had to replace Proc. 50 with Proc. 75 to correct, among others, that there was no “concurrence of a majority of all the members of the Congress.” Proc. 75 was approved in separate meetings and separate voting -- by the House on Dec. 13, 2010 and the Senate on Dec. 14, 2010.
A solution of joint session and separate vote is not prohited by the Constitution. It is the joint vote that is critical.
(c) On the issue of whether a Resolution by both chambers can limit the powers of a constituent assembly or a constitutional convention, my answer is that a ConCon or ConAss has plenary powers to take up anything, even a new constitution, and this being an extraordinary power given by the Constitution, no Resolution by the Congress can limit that power. The only way that amendments or revisions can be limited is through the prudent restraint of the Constituent Assembly itself. And the question is, are our legislators capable of doing that, I think our answer is: No, because that is not the culture and our historical experience with our politicians.
I have been asked if the Constitution is just an over-reaction to the Marcos dictatorship and was written in anger.
What I can share is the mood and context of the 1987 Constitution --- it was one of celebration and of hope. It was a historic moment of solidarity when the rich and the poor got together in a peaceful revolt and we promised one another a new social order. That is why, according to former justice Cecilia Munoz-Palma, the heart of the Constitution is social justice. That is why the Constitution can be described as “affirmative action” to correct the injustices of the past to the poor and to dismantle feudalism that has been impervious to change to this day.
It is also a Constitution of Limitations -- as all constitutions are – to make sure that the abuses and wrongs of the past are never repeated – which includes the oppression of colonizers where, for example, the 1935 Constitution was amended to give Americans parity rights. Moreover, we could not change our exchange rate without the approval of the President of the United States even after our independence. This resulted in a foreign exchange crisis in the 1950s. Hence the constitutional provisions to ensure that our economy is safely and firmly in Filipino hands. The “never again” provisions also apply to the Marcos dictatorship with its human rights violations and a disastrous economy where we did not recover our per capita GDP of 1983 until 2002 or about 20 years.
If there is anger, it was not when we were writing the constitution, the anger is today when we see that the promise of a new social order is not being kept and there are people even blaming the Constitution which has all the provisions to fulfill that vision. The problem is not the Constitution but our legislators who slept on the job to fully implement it. Or when reform legislation was passed, made sure that it was watered down and underfunded. This is the legislature that wants to re-write the Constitution.
That is why the PDP-Laban version of the constitution is so disappointing, because PDP-Laban was very much a part of EDSA. Why is it pushing for a federal-parliamentary system which they admit does not direcly, but only indirectly, address the twin problems of mass poverty and gross inequalities that is central to a new social order? Moreover, PDP-Laban delegated the re-writing of Article XII on the Economy and Article XIII on social justice and human rights to the FEF (Foundation for Economic Freedom) a think tank of of the academe and business.
The result is that the social justice provisions in Articles XII and XIII have been replaced by the themes of business. In other words, social justice is no longer a “compelling principle” of the Constitution, but is just another means to economic growth, like globalization, free trade, market-driven solutions, international competitiveness, increased foreign direct investments.
In Article XII, the references in the Constitution to such principles as “distributive justice”, the “use of property bears a social function”and “industrialization based on sound agricultural development and agrarian reform” have been deleted (about 7 sections like this) or revised (about 18 sections including reversing the priorities of the economy. “the just distribution of opportunities, income and wealth, is now secondary to more production and productivity. These changes are based on the FEF proposal that land ownership, the use of natural resources, the operation of public utilities, and the rules on media, advertising and even education are better left to ordinary legislation. The issue of Filipino ownership would be open to transactional legislation on which the business community is most adept.
Article XIII on Social Justice and Human Rights, has the most deletions of provisions (other than the articles on the legislature and executive) because the FEF proposed that labor, agrarian reform, urban land reform and housing, are also better left to the discretion of Parliament.
Doesn’t PDP-Laban know that if they remove social justice as the central theme of the Constitution, there will be hell to pay from the poor? As my former colleague Haydee Yorac used to say: Let justice be done tho the heaven’s fall.
At this point, may I raise this question. If federalism and parliamentarism are critical to our future, why is there no mention of it at all in the Philippine Development Plan 2017-2022 and Ambisyon2040?
“On October 11, 2016, President Rodrigo R. Duterte signed Executive Order No. 5, s. 2016 approving and adopting the 25- year long-term vision entitled AmBisyon Natin 2040 as a guide for development planning. According to EO 5, the Philippine Development Plan 2017-2022 (PDP 2017- 2022) and the succeeding PDPs until 2040 shall be anchored on AmBisyon Natin 2040. EO 5 recognizes the need for a ‘bold vision and effective development planning based on a ‘forward-looking approach that goes beyond a single administration’. It also emphasized the centrality of people in development planning and their aspirations as requisite for the design of government interventions to achieve development outcomes.”
There is no mention that federalism and parliamentarism are necessary to achieve PDP 2017-22 and its Results Matrices 2017-22 (which contains all the targets and the year-by-year period to attain them -- about 300 of them) and the Philippine Investment Program.
In other words, the "design of government interventions to achieve development outcomes does not require federalism or the parliamentary system.
How does the Philippine Development Plan 2017-22 plan to address the uneven development among the regions?
The Plan espouses in Ch. 3, a National Spatial Strategy (NSS) that , recognizes, among other things, the very unequal distribution of production and income of the Philippines among its regions –with 3 regions (NCR, Calabarzon, Central Luzon) responsible for contributing 63% of the country’s GDP. Obviously the other regions cannot support themselves. The rest of Luzon accounts for 10.3%, Visayas for 12.4%, and Mindanao for 14.5% shares in GDP.
The NSS aims to decongest the NCR and direct growth in key centers throughout the country…and seeks to redress spatial and socioeconomic inequalities by linking lagging regions with leading ones, RATHER THAN ADVOCATING THE UNIFORM DISPERSAL OF DEVELOPMENT, WHICH CAN CREATE DISECONOMIES AND INEFFICIENCIES….The NSS thus forms a network of settlements to maximize the benefits of agglomeration.
This is how the Philippine Development Plan, through the National Spatial Strategy addresses the problem of unequal development in our country.
With respect to the fiscal decentralization to support the PDPlan, fiscal expert Prof. Rosario Manasan says that fiscal decentralization can be done even without federalization. She can talk also about the consultations conducted nationwide in 2014 where there was consenses on some 20 amendments to the Local Government Code to ensure fiscal decentrailization.
MEANS and ENDS
Federalism, decentralization, parliamentarism, are means. It is the ends that drive the means., not the other way around. According to the President, the purpose of charter change is to improve the quality of life of all filipinos, especially the poor. That was also the articulated purpose of all six previous attempts at cha-cha. All failed – 2 struck down by the SC and 4 withdrawn for lack of support. They were all perceived as driven by self-intereest - in short, that they were all about power.
Quality of life is about addressing the core problems of mass poverty and gross inequalities. It is also about the daily insecurities of ordinary people on criminality, drugs, the inadequacies and red tape of government services, corruption at the frontline. Which can be addressed by the powers of government today, as shown by the example of Davao City, at the micro level.
PDP-Laban admits that the shift is a complex and lengthy process with its uncertainties. That is why its time line to complete the shift is at least 11 ½ years including 1 ½ years to enact a new Regional and Local Govt Code that in effect is a revised 1991 LGC.
If the plebiscite is held in May 2019, the transition will end at the earliest in 2030. During the transition, with “existing” local govt officials (i.e. those elected in 2019) constituting the Regional Commission with both executive and legislative powers until the organic laws for each region are enacted,and the regional officials are elected. That's the carrot for them to deliver the votes for the chacha train – a term of 11 years from 2019-2030.
According to the summary of the PDP-Laban draft:
(1) in the transition to a more decentralized system of governance, we need a popularly elected presidency to hold and unite the country and ensure that the transition to federalism will be successful, an arbiter of disputes between the federal and regional governments and among regional governments.
(2), we need an effective president to deal with powerful countries like China and the United States, as well as to effectively compete in a globalized world economy;
(3), we need a president who can decisively address the numerous national security problems and natural disasters;
(4), a pure parliamentary system without strong political parties can be unstable. It will take time to build strong political parties. We need a president to ensure that there is no gridlock in our political system.
I believe that the president being refered to is President Duterte.
President Duterte has said that he would step down when the shift is approved – that would be 2019, his tem ends 2022. Can he resist the call that he alone can make sure that the shift will be successful? But what if he dies before his time – he will be 85 by 2030? He has the same ailments of seniors like me. What will happen to the country with a constitution tailored to his personality, preferences and style of governance? That's the problem when we place our destiny in the hands of one person rather than on institutions.
During the transition period, legislation will be enacted to enable the regions to develop the human and resource capability to stand on their own. As we know, 14 of the 17 regions cannot stand on their own because of lack of financial or organizational, or human and natural resources.
I may not aganst federalism per se. But at the right time where the pre-conditions for its success are present. Because a messed-up structural change is virtually irreversible and may lead to the ruin of our democracy. I submit that there may be an alternative to consider rather than an immediate structural change by 2019
The question is: if the regions can develop through legislation the competence, financial and organizational capacity and the human resources to qualify as a federal state, why the need for federalization now? Besides, federalization without sovereignty as provided by the PDP-Laban draft is nothing more than an enhanced multi-level unitary system, which is already mandated by the Constitution and only needs reforms through legislation, such as an “equalization fund”, a change in the sharing of the IRA, and a better designed and coherent expenditure assignments, tax assignments, inter-govermental transfers and improving the capacity and creditworthiness of subnational units.
So, instead of a premature structural shift to a federal-parliamentary system, why not start enacting now the fiscal decentralization and other legislation that will already devolve more power and resources to the 14 poor regions and LGUs? That may be a more productive exercise than a chacha.
In addition, why not also enact an anti-dynasty law up to the 4th degree of relationship and applicable to the 2019 elections to demonstrate the sincerity of our legislators about real change. Enacting laws against their own interest is the best way to earn the trust of our people. Once the dynastic system has been replaced by a strong political party system, the anti-dynasty law can be amended to apply only to a 2nd degree relationship.
If the reform legislations are not passed or do not work, they can keep on trying because a messed-up reform through legislation can be corrected, unlike structural change.
If the reform legislation and fiscal decentralization work, and the 14 regions are able to stand on their own, that would be the right time to consider a shift to a federal-parliamentary system, initiated by the regions in a bottom up approach rather than dictated from above as presently envisaged. That is really the better way to federalization – strong states getting together to form a strong union that can successfully stand up to our enemies and successfully compete in a globalized world.