This is the ninth and final column of my series on the proposed constitution drafted by the Consultative Committee appointed by President Duterte and led by former Chief Justice Reynato Puno. As I wrote in my last column, this series was written to engage the country on the proposed constitution. I consider the Puno draft as nothing more than a proposal for discussion, debate, and revision as the process progresses. I am thankful that the administration has said the same things and welcomes comments and suggestions.
In this column, I come up with a score card and identify who in my view will be the winners and losers if the proposed constitution is adopted and ratified through the processes required by the 1987 Constitution. To be constructive, I will suggest how gaps and defects in the draft can be addressed. At the end of this article, I will also suggest process and what the right steps forward to make this constitutional debate more productive.
Overall, my assessment is that the main winners under this Constitution are human rights, the presidency (but in a way that is not necessarily good for the country), anti-dynasty reforms, political parties, lawyers, and the Federal Commissions. The biggest losers under the proposed constitution are local governments, the Senate as we know it, the judiciary, and most serious of all the economy and social justice.
Human rights is advanced in the proposed constitution which introduces novel principles and concepts. As I wrote early in this series, social and economic rights, are explicitly recognized in the bill of rights, including the right to adequate food; universal and comprehensive healthcare; quality education; adequate and decent housing; livelihood and employment opportunities. A new section on Environmental and Ecological Rights states that every person has the right to a healthful environment, clean air, clean water, clean soil, and clean surroundings; to seek compensation for damage to the environment; and to seek “immediate relief” from courts through the writ of kalikasan and other protective writs.
All of these rights are self-executory and actionable. Citizens can immediately file law suits against government agencies and non-state actors to enforce their rights and seek redress if they are violated. Violations of human rights include those not only guaranteed by the Constitution but also international human rights covenants and treaties to which the Philippines is a signatory.
To improve further the Bill of Rights, I propose that the current Section 11, Article II of the 1987 Constitution be incorporated as the first section of the new Article, thus the Bill of Rights should begin with this proclamation: “The State values the dignity of every human person and guarantees full respect for human rights.”
I welcome the political reforms proposed in the draft Constitution are good. The anti-dynasty provisions are strong and self-executory. Political parties are given importance and supported. Senators elected by regions and proportional voting will most likely enhance democracy. This will of course eliminate the Senate as we currently know it. Senators voting for constitutional change must know that they will become more like representatives with this change.
Likewise, the six Federal Commissions will also enhance democracy and accountability. They are well designed and their independence seem to be assured. I am particularly happy that the Commission on Human Rights and Philippine Competition Commission are elevated to become Federal Commissions.
The presidency is the biggest winner under the proposed constitution. But I do not consider this as good for the country as it guarantees the continuation of Manila imperialism and contradicts the decentralization objective of federalism as well as the expansion of the Bill of Rights.
The creation of an all-powerful Federal Transition Commission led by the President exacerbates this danger of despotism. With an imperial presidency, it is safe to bet that Imperial Manila will continue to dominate and federalism will only be in name.
I propose that we reconsider taking the mixed presidential-parliamentary route, with a weaker president but a strong federal and effective regional legislatures.
Ironically, two of the biggest losers in the proposed constitution are federalism and local autonomy.
As I wrote in my last column, the proposed constitution is bad for local governments and their autonomy, threatens their existence in fact, and most likely will reverse the gains achieved in our mixed experience of the Local Government Code. Indeed, local governments could be completely destroyed and its status, role, powers, and revenue powers subjected to the whims of untested Federated Regional Governments.
This is because, unlike the 1973 and 1987 Constitutions, there is no specific article for local governments. Since the Federated Regions have exclusive power over local government units, it can in fact decide by itself which units can continue to exist and what powers and functions those units will have. The 1991 Local Government Code can be repealed by each region and replaced with whatever it wants without guidance from and limitations imposed by the Federal constitution except the principle of subsidiarity earlier cited.
I strongly urge an Article on Local Governments, similar to the current Article X of the 1987 Constitution that would guarantee the status, role, powers and functions, and revenue powers and share of local governments as well as define its relationship with the Federal and Federated Regional Governments.
On the judiciary, I honestly think that the reforms proposed, while well-meaning, will not have good outcomes. Lawyers are big winners under this Constitution but this is not positive for the country.
I agree with Justice Vicente Mendoza’s critique that abandoning the one supreme court concept would be detrimental to judicial independence and the separation of powers. In addition, allowing Congress through the Commission on Appointments to appoint several members of the four federal supreme courts politicize very explicitly the appointment process and could be at the expense of the independence of the Justices appointed through this route. Having the Justices play a role in appointing each other could also lead to excessive politicking by jurists.
The right approach is to transform the current Supreme Court to constitutional court that will only rule on cases involving constitutional law and cases involving conflict between the federated regions and those between the main branches of government and the proposed six federal commissions. All other cases should end at the Court of Appeals. An Administrative Appeals Court and an Electoral Appeals Court could be created but they do not have to be treated as equal to the Constitutional Court.
Finally, the biggest loser under the proposed constitution is the economy. Like Duterte’s economic managers, I am concerned about the design of the fiscal and revenue allocation system being proposed. It just does not add up. Everyone loses—the federal government, the regional governments, and local government units; for sure the people and especially the poor will suffer immensely. Indeed, that rich regions will benefit more while poor regions will be worse off. We will have a poorer and more inequitable country with this proposed constitution.
On the economy, we must go back to do doing serious studies of our policy options. Numbers must be crunched by professionals and we must debate options properly to make the right choices.
Charter change is necessary. I believe the 1987 Constitution has serious flaws. I am for a right design for federalism, one that works. But the need for such change must not be used an excuse for a power grab. Nor should we follow an artificial timeline. Debate must be encouraged, but solid, empirical analysis must be done first.
Charter change is necessary. But we must do this properly. A constitutional convention is the only acceptable way of moving forward and the best time to do is after the term of President Duterte in 2022. Hopefully there will be a national consensus by then on how to proceed.
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