Democracy & Governance: Deficit, Surplus, Unfinished Business

State of the PH in 2018: Perils,
Pitfalls of Shifting to Federalism

IS the proposed shift to federalism “a Trojan horse to stay in power” for President Duterte and his political allies?

What follows is the speech of Atty. Christian S. Monsod, former Commission on Elections chairman and member of the 1986 Constitutional Commission, at the forum on “Democracy and Governance in the Philippines: Deficit, Surplus, and Unfinished Business” that was organized by the Philippine Center for Investigative Journalism, in partnership with the Office of the Ombudsman of the Philippines and the Right to Know, Right Now! Coalition, on July 5, 2018, in Pasig City, Metro Manila.
THE INSPIRATION for the 1987 Constitution was EDSA and the restoration of democracy through peaceful means. But EDSA was more than that – it was also the promise of a new social order especially to the poor with radical changes, but through democratic means.

Before its writing, consultations nationwide were held to listen to the people and they overwhelmingly preferred the stability of familiar structures – a democratic, representative, unitary presidential system, with checks and balances and separation of powers. And, they wanted the power to directly vote for and have access to their president. But from the experience of the Marcos regime, they also wanted safeguards against the return of authoritarianism in any form. They wanted social justice and wanted our national destiny to be firmly and safely placed on Filipinos themselves. Thus, these are the central themes of our Constitution.

All this was, in many ways, counter-cultural and therefore “radical” because our history is marked by a tendency to give up powers to colonizers and dictators, of deferring to so-called “strong” leaders, of allowing business to rule our economy, and of an over-dependence of the poor on rich landowners for their basic necessities.

This is validated by the studies of experts that a number of factors account for our laggardness among our neighbors in addressing mass poverty and inequality. But foremost are flawed policies and weak institutions rooted in a feudalistic system that has been impervious to change for generations and, of course, its companion evil: corruption.

The 1987 Constitution is the history of Filipino struggles to achieve an independent democracy. One used to oppressive colonial forces is balanced by a stronger citizenry; a tendency to defer to foreigners with parity rights to our land and resources balanced with stronger pro-Filipino policies; a strong business sector balanced with economic opportunities for the poor; a culture of corruption balanced by more avenues to hold our government officials accountable.

Thus, the Constitution can be viewed as affirmative action for our democracy – to correct the shortcomings of previous constitutions, to address the “wrongs” of history and to empower and enable the ordinary Filipino to rise above himself. It provides a system that should correct itself whenever it threatens to get out of control. And in that process of correction, the role of the people is critical because “sovereignty resides in the people.”

Our Constitution is considered one of the most progressive in the world alongside that of South Africa. We already have the provisions that many countries are trying to install in theirs in the search for peace and development.

The 1987 Constitution was the first time that we spoke to the world as a truly independent and democratic Filipino nation. It is a document that had not been imposed on us by any colonial power or by a dictatorship.

The 1987 Constitution cut the umbilical cord of the 1935 and 1973 constitutions to the United States Constitution, which gives primacy to civil and political rights because it is a country of immigrants who all started from the same position and only wanted to be free from autocracy.

Our Constitution gives social and economic rights equal primacy with civil and political rights because we are a country of inequalities from the colonial days to the present where the starting positions of the rich and the poor are not equal. Social Justice and human rights are about the adjustment of these starting positions. It is the central theme, the heart, of the Constitution.

It is a Constitution under threat of overhaul because it is blamed as the source of our problems today and is not part of the solutions.

A week ago, I was a speaker at a forum of an international NGO about the future of their operations because of its external environment, both international and domestic. As of December 2017 their list of uncertainties in the Philippines were: democratic space, rule of law, political institutions, civil and political space, domestic and foreign policy, the government’s openness to international aid and development assistance, martial law, revolutionary government and escalating conflicts in Mindanao.

Since December, another uncertainty has been added with some urgency – a charter change that threatens not only our “spaces” for democracy but also democracy itself with a new constitution that is likely to allow or facilitate “constitutional authoritarianism.” The urgency may have been triggered by statements from the military that it would not support a “revolutionary government,” because it would be an extra-constitutional measure beyond its scope of powers and duties.

How easily we forget. The Marcos years were not just about the brutality in the violation of human rights, but also the economic disaster from which we did not recover until 2002, or 20 years after our per capita real income collapsed in 1983 from the weight of foreign debt. And on top of that — perhaps the worst legacy of all — was the culture of corruption that persists to this day.

We are told that our leaders, especially judges, not only shape our lives but also our values. From the experience of the last 18 months, it’s clearer now that the Duterte Administration knows how to govern only through the use of fear and force. Thus, if the Marcos legacy is a culture of corruption, then the Duterte legacy would be a culture of violence. In fact, I believe that we are already on a slippery slope to authoritarianism even without charter change.

A book entitled How Democracies Die published earlier this year, among several books on the same subject, says that where authoritarianism during the Cold War was imposed through coups d’etat by the military, since then authoritarianism has been assumed by elected leaders through constitutional revisions that would allow them to stay in power indefinitely, i.e. Fujimori of Peru, Chavez of Venezuela, Erdogen of Turkey, even our Marcos and several others. It also says that there is already danger when even just one of the four signs that an elected leader wants to become a dictator is present. The signs are:

• Rejects in words or actions the democratic rules of the game – both in written constitutions or unwritten norms of conduct and civility in a functioning democracy;

• Denies the legitimacy of opponents;

• Tolerates or encourages violence; and

• Indicates a willingness to curtail the civil liberties of opponents.

The question: are these happening in the Philippines today?

Think about Sen. Leila de Lima, under detention for 15 months through trumped-up testimonies of 12 convicted felons, which were upheld by the Supreme Court. Or about former Supreme Court Chief Justice Lourdes Sereno, deposed from her position through quo warranto proceeding by no less than the Supreme Court that ignored the constitutional provision on impeachment and the ethical norms of inhibition by five justices.

Or think about Congress, especially the House that could not establish an “impeachable offense” against Sereno and suspended its transmission to the Senate of a weak case in order to give way to the quo warranto proceeding. Or the proclamation of martial law and its extension for one year in the whole of Mindanao that was affirmed by the Supreme Court with unusual deference to the President and abdicating its mandate to determine the sufficiency of the factual basis for the proclamation of martial law. Such that now, the President is empowered to declare martial law anywhere, anytime in the Philippines.

What about the attempt at a zero budget for the Commission on Human Rights and the attacks on the Ombudsman, which only stopped since the Honorable Ombudsman Conchita Carpio-Morales will be stepping down this July – an Ombudsman who, to paraphrase Albert Camus, put herself at the service not of those who make history but of those who suffer it.

With the weakening of the constitutional “checking powers” of Congress, of the Supreme Court, the Office of the Ombudsman, and of the media (i.e. Rappler and the Philippine Daily Inquirer, among others), there remained the potential checking power of the Church to deal with. There are only three institutions with a nationwide reach: the LGUs, the police/military establishment, and the Church. That may account for the latest attempt to smear the “source” of its power – God.

Legal adventurism encourages disrespect of the Constitution and devalues the most potent weapon to protect the rights and freedoms of the people. That would constitute, wittingly or unwittingly, a step toward what mental-health experts refer to as “malignant normality,” which can take different forms but, in the case of democratic countries, would consider aberrant behavior or language as part of the democratic process. Thus, a dangerous leader becomes normalized, and malignant normality would dominate the governing dynamic. Clearly, this endangers our democracy.

Who could have foreseen a situation where the designated guard dogs of the Constitution would become the lapdogs of the President?

With regard to the ad hoc Consultative Committee or ConCom, one of its more credible members denied that the President has tried to interfere with its work.. He missed the point. The selection of appointees to the ConCom predetermined its agenda. The ConCom was not meant to seriously study other options to the articulated purpose of federalism: to end the reign of “Imperial Manila” in order to address the underdevelopment of the outlying areas and the urgent problems of mass poverty and gross inequalities.

There may be a second purpose to charter change. In this regard, a comparison of the ConCom Chairman Reynato Puno’s statement to Business in July 2017 and his marching orders to the ConCom in its opening session last February 19 is instructive. To Business, the former chief justice said that federalism is a slippery slope with six conditions to protect or avoid, the most important being a truly independent judiciary. To the Concom he said, “There ought to be a moderation on the extreme exercise of the checking power by each branch of government….On certain issues of primordial importance to the political, economic, and social interest of our people, the three departments of our government must speak with one voice. In times of crises, more than one voice is noise.”

That sounds dangerously Marcosian. It uses lofty rhetoric to rationalize authoritarianism – a throwback to the Marcos regime when all three departments of government spoke with “one voice.”

Who determines what is “extreme exercise” and what are “issues of primordial importance”? What happens to the system of checks and balances? Where in that kind of government is the role of the Supreme Court as the “conscience of the nation”?

Where are we going?

The President is a master politician. He has not lost a local election in 28 years and he won in his first attempt in national elections. He knows that any attempt to bring him down through “people power” will not prosper given his very high trust ratings. He is perceived as incorrupt and considered as a hope for radical social change across the economic classes. Moreover, there is a changing paradigm of people power. The ordinary people will no longer allow themselves to be used as pawns for power players who all come from the same elite class.

In 2016, many voters deserted the mainstream. As someone describes the phenomenon, most voters “hungered for politicians who can make a rousing argument for drastic solutions.”
In other words, Duterte the Mayor got it right on the deeper yearnings of the people and was elected by a huge plurality. But can Duterte the President pull it off on his own terms – the radical change he promised? We can only ignore the sentiment behind the vote for him at the peril of undertaking the wrong solutions.

In a span of only two years, the President has taken control of Congress, especially the House, most of the LGUs and ruling dynasties, and of the Supreme Court. By 2022, he will have appointed 13 of the 15 justices. He has gone out of his way to secure the loyalty of the military and the police, including doubling their salaries. I am not sure if the President really wants or considers it still necessary to shift to federalism given his almost total control of these power centers. And he must be aware of the succession risks to the country of a Constitution that is tailored to his way of governance, if he dies before his time.

But if he wants to stay in power beyond 2022, the only legal way to do it is by charter change. With a new constitution that allows him to run again. Mainly through its Transitory Provisions, the way Marcos did it.

Which gives rise to another question: Is federalism a Trojan horse to stay in power?

Based on the various drafts of a federal constitution and the statements of high officials of the administration, my best guess is that the extension of the terms of the office are likely to be done through any of these alternatives:

• By the suspension of elections; or or extension of terms. By changing the rules for re-election for those who would otherwise be banned from staying in power, including the president himself. Moreover, during the transition between 2018 or 2019 until 2022, by allowing President Duterte to finish his elected term but with much greater powers, until the election of the President under a Federal System, where the cards are stacked in his favor.

The recommendations of the ConCom (as supposed to be finalized yesterday with all 22 commissioners signing it) I received parts of it from two reliable sources and one complete version from a reputable institution that was branded by the ConCom as “not genuine.”

But the questions and comments by people, including myself, based on the Resolutions 8 and 9 of the House and the PDP-Laban proposed federal constitution appear to be addressed by the ConCom. I will only cover six items for lack of time in digesting all the changes, as follows:

On the form of government: Federal-Presidential, without a parliamentary system;

• On the checks and balance system: The creation of new institutions that is broader in scope than the present system among the three great departments, the three constitutional commissions, and the office of the Ombudsman and the Commission on Human Rights. Under the new distribution of powers the Fed CHR is now expressly included as well as three additional supreme courts to the Federal Supreme Court, namely the Federal Constitutional Court, the Federal Administrative Court, and the Federal Electoral Court. The appointing power would be distributed other than the president For example, to the Fed CC 3-3-3 shall be appointed among the President, Commission on Appointments and Federal Constitutional Court. In turn appointments to the Federal Constitutional Court 3-shall also be appointed 3-3-3 by the President, the Commission on Appointments and the Federal Supreme Court. And the Fed. Adm Court 3-3-3 by the President, COA appointments, and Fed Sup Court. The Fed Electoral Court will have 15 members – with 5-5-5 (by the Pres., COA appointment, Fed. Cons. Court). And then there is the Federal Intergovernmental Commission to handle the “equalization fund” and help poor regions become viable.

There would be no more need for confirmation. Instead, the candidates shall be vetted by a reconstituted Judicial Appointments and Disciplinary Council consisting of 11 ex-officio members: the four CJs, Fed Ombudsmen, SC administrator, minority Senator, majority rep. CSC, COA, Sec Justice. The regular members would be someone from the IBP, a law professor, representatives from the associations of generals/flag officers/ retired Fed SC. Do you think that these agencies under a Duterte administration will be objective in their choices?

• The federated regions will not share sovereignty. There are exclusive powers and shared powers to be exercised jointly or separately. In case of dispute, the federal power shall prevail. This is not substantially different from the present multi-tiered unitary system.

• With regards to the fiscal powers, can these not be done today with an overhaul of the Local Government Code? These are standard recommendations by fiscal expert Prof. Rosario ‘Chat’ Manasan on a meaningful fiscal decentralization without federalization.

• The good news of the version I have seen, if genuine, is that the social justice provisions appear to be intact both those in Art. XII on the Economy and Article XIII on social justice, with some amendments on labor rights, for example, unlike the PDP-Laban proposed constitution. But the bad news is that with regard to land, natural resources, and public utilities, Congress is now allowed to change the requirements of acquisition, lease or ownership, which opens the door to transactional legislation.

• On the transitory provision: The President shall head the Transition Council from 2019-2022 (assuming a plebiscite sometime in 2019), with 10 members with the nominees to be appointed by the President from a search committee headed by the CSC Chair with four members appointed by the President.

The Transition Council has vast powers:

SECTION 2. The Federal Transition Commission shall have the following powers and duties:

(a) To formulate and adopt a transition plan for the orderly shift to the new system of government as provided for in this Constitution. The transition plan shall be published in the Official Gazette and in at least two (2) newspapers of general circulation, and any digital platform chosen by the Transition Commission;

(b) For the proper execution of the transition plan, it shall promulgate the necessary rules, regulations, orders, decrees, proclamations, and other issuances, do all acts to implement the same, and resolve all issues and disputes that may arise therefrom; (similar to the powers of Marcos)

(c) To organize, reorganize, and fully establish the Federal Government and the governments of the Federated Regions, in accordance with this Constitution;

(d) To exercise all powers necessary and proper to ensure a smooth, speedy and successful transition.

SECTION 3. The transition plan shall include the following:

a) The respective transition plans for the different branches of the Federal Government, the independent Constitutional Bodies, the Federated Regions and other component units;

b) The fiscal management and administration plan including, but not limited to, generation of revenue and resources and their appropriation, allocation, and expenditure;

c) The establishment of mechanisms for people’s participation in the transition.

SECTION 4. The Federal Transition Commission shall ensure people’s participation by involving faith-based, civil society, indigenous peoples, sectoral, non-government and other community based organizations in the transition, especially in the selection and screening of appointees to the new government.

Is the President allowed to run for the presidency of the Federal government? The transitory provisions:

SECTION 5. The first national, regional and local elections under this Federal Constitution to elect the President, Vice President, Regional Senators, District Representative, Proportional Party Representative, regional and local officials shall be on the 2nd Monday of May 2022. They shall assume office at noon on June 30, 2022.

SECTION 6. The term of the President and Vice-President, which shall end on June 30, 2022, shall not be extended.
The caveat, however, is that there is no explicit prohibition on President Duterte’s running on the second Monday of May 2022 under the new constitution.

SECTION 7. All laws, decrees, executive orders, proclamations, rules, regulations, letters of instructions, and other executive and judicial issuances not inconsistent with this Federal Constitution shall remain valid until amended or repealed.

But then. can it postpone the 2022 elections if the transition process takes longer than expected??

SECTION 8. All officials of the government under the 1987 Constitution shall continue to hold their office and exercise their respective powers and duties under such terms and conditions as may be provided in the transition plan.

SECTION 9. Permanent employees of the government separated from service as a result of the reorganization of government shall be entitled to separation pay, early retirement pay or retirement pay, or other appropriate benefits accruing to them under existing laws. In lieu thereof, at the option of the employees, they may be considered for employment in the Federal Government, the Regional Government or in any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries in accordance with the existing civil service laws, the corporate charters of these corporations, and other relevant statutes.

What we have thus is a total overhaul of the country’s institutions, system of governance and the bureaucracy under the leadership and direction of President Duterte. This at a time when we should be addressing the twin problems of mass poverty and gross inequalities.

What are the imponderables? First, on the process: The issue of joint or separate vote by the Senate and the House in the Constituent Assembly. What if the SC says the vote must be separate? And what if the three-fourth vote of the Senate cannot be marshalled by the administration?

Then there is the imponderable of what the President really wants. The imponderable of whether can free and fair elections can be conducted under martial law. And finally there is the judgment of the people in the plebiscite.

Secondly, on the substance: Will Congress in a ConAss adopt the good provisions of the ConCom? The ConAss version will surely reflect the power plays of the political dynasties and the compromises of the self-interest of politicians. Senate President Vicente Sotto III has already said that Congress will not pass an anti-dynasty law and President Duterte has publicly said he is not in favor of it. Then again, the two-degree proposal is already tokenism since the Ateneo and World Bank studies define a political dynasty as one of extended families, inter-marriages, and of clans, of which there could be anywhere between 178 (Ateneo) and 200 (WB).

Moreover, some members of the ConCom have reportedly admitted that one of the imponderables is whether federalism will merely empower these dynasties to become more entrenched. There is also the possibility of political violence as they fight for supremacy in the regions. There is, after all, the law of unintended consequences especially in an inductive process as federalism, as admitted by one of authors of the PDP-Laban version, will only indirectly address the urgent problems of mass poverty and gross inequalities.

It is also not clear if all the regions will become federated states immediately even as they strive to stand on their own and if the equalization tax system will work in this regard given the diversity of resources and of capabilities of the regions.

As one commentator said, changing the structure now with so many uncertainties is like boarding a plane without knowing its destination. So why not consider the cautionary insights of experts like Prof. Gene Lacza Pilapil of the U.P. political science department, who I believe has done the most exhaustive research on institutional design literature. Among other things, Pilapil has observed that there is no consensus on the superiority of a federal to a unitary system of government (there are in fact about 160 unitary systems and about 27 federal systems) and vice-versa. There are arguments on both sides between federal and unitary systems on several key indicators that include: human development, economic performance, income inequality, democratic stability, quality of democracy, rule of law and anti-corruption campaign, and there is no meaningful difference in performance between the two.

Pilapil also suggests reform rather than overhaul for democratic countries with functioning systems. If there is no superiority of either one, why the need to overhaul? Institutional overhaul tasks are too institutionally and intellectually complex for the lofty goals that proponents talk about. From the enthusiasm of the 1990s there is a lot of sobering in the realization that actual empirical outcomes did not conform to the glowing theoretical predictions of reformers.

No democratic country with an existing unitary-presidential setup has been crazy enough to make these constitutional overhauls of form and systems at the same time, (like building a fully functioning political party system to replace political dynasties). There is, after all, the law of unintended consequences to contend with.

But suppose there are proposals that may be acceptable under other circumstances. Do the benefits from those changes exceed the costs of authoritarian powers to President Duterte even beyond his present term to 2022?

Some people say that the President suffers from illnesses like Narcissistic Personality Disorder” or NPD and of paranoia, which exaggerates threats to himself that is manifested in streaks of vindictiveness. I believe, though, that the issue about him is not “mental illness” but of “dangerousness,” especially if given total powers. And the costs of that on human rights, on social justice and on the economy far outweigh the benefits from the proposed charter change.

How then do we proceed?

First, we have to do our homework. Let us do a thorough and objective study of the ConCom recommendations, as well as the moves of the Congress in the weeks ahead. There may be constitutional reforms worth considering, assuming the government is willing to refine rather than overhaul, like judiciary reforms, voting of the president and vice-president in tandem, a run-off of the presidency. And then there are the major revisions by legislation of the Local Government Code – some 30 provisions arrived at in a nationwide consultative process in 2014 among the academe, LGU officials, central government officials, and NGOs.

Second: I believe that there is a statesman in every politician and it is up to us to find it in whatever way we can. Democracy is about dialogue and compromise. Maybe the President can be persuaded to consider alternatives that are not divisive and will directly help the poor without changing the form of government, assuming he has no other agenda.

If that approach fails, we would have a battle for the hearts and minds of the people, a battle in which education campaigns, legal activism, and intelligent advocacy would be more effective than sloganeering and street action calling for people power upheavals to bring a duly-elected president down.

We must not only be well-meaning; we must also be correct in our cause and in the manner of pursuing it.

Real change requires both a transformational leader and a transformational people. Every other combination would be dysfunctional to our objectives, such as:

• a transactional people and a transactional leader that is about bargaining about power and money. This may be our real situation today.

• a transactional people and a transformational leader, which would require a long-march; and

• a transformational people and a transactional leader that will result in revolution.

Real change requires us to all change. For real change to happen, our longer-term goal is a new generation of leaders who come from the poor.

This is not a time for silence or indifference, or self-censorship in a climate of fear and retribution. This is the time to think deeply about our future, to organize and to do something worthy of this country.

This is admittedly a difficult agenda. But we have done this before and we can do it again. We have fought five of the last six presidents on issues of principle and have won all of them. As a Pulitzer Prize winner reminds us, the only way people lose power is when they think they don’t have any. — Speech delivered at the PCIJ Forum on “Democracy & Governance in the Philippines: Deficit, Surplus, and Unfinished Business”, July 5, 2018, Pasig City, Metro Manila