Duterte’s Philippines and the push for constitutional shift towards federalism

While the 1987 Philippine Constitution is yet to be amended, the popularity of President Duterte and support from Congress may lead to the first round of revisions towards federalism. Nevertheless, the possible inclusion of opportunistic reforms and fluctuations in political fortune may undermine the success of the process – writes Professor Miriam Coronel Ferrer.  

Background

Advocating constitutional change has been a recurring theme in Philippine contemporary politics. Despite some high profile efforts, the 1987 Constitution is yet to be amended. All amendment proposals failed before they even reached the stage for submission for a referendum as required in the constitution. 

But this time, it appears different. Under President Rodrigo Roa Duterte, the push for an overhaul of the country’s political system towards a federal structure is unusually compelling. Unlike the current bid to reform the constitution, past efforts were primarily geared at removing the protectionist measures against foreign ownership of land and the entry of foreign capital in certain industries, and shifting from the presidential to a parliamentary form of government, with federalism treated as a secondary item to draw in broader support.  The current reform drive reverses this prioritization.

Duterte is most resentful of ‘Manila imperialism’. He is the first President of the country who hails from Mindanao, the southernmost part of the country that is farthest from Manila and the claimed homeland of the erstwhile Moro separatist (now autonomy) movement. Duterte ran under the Partido Demokaratikong Pilipino-Lakas ng Bayan (PDP-LABAN), a pro-federalism political party formed in the 1980s.  The current Senate President heads the PDP-LABAN. The Speaker of the House of Representatives, where President Duterte commands a ‘supermajority,’ is his hometown mate. In effect, all the key decision-makers are proud Mindanaoans.

Moreover, the ‘ChaCha’ (street lingo for constitutional change) bid is being done at the beginning of the presidential term, when the chief executive still enjoys a high rating. Duterte has also allayed fears that the move is intended to prolong his stay in power beyond the constitutionally-fixed single, six-year term: ‘If you hurry up the federal system of government, you can submit it to the Filipino people by the fourth or fifth year (of my presidency). You call for a referendum, and after that call for a presidential election’, he proclaimed. ‘Then I will go’.

Constitutional Assembly or Constitutional Convention?

Taking the cue from the popularly elected president, a slew of supportive resolutions were filed by members of the ruling coalition in both chambers of Congress: House of Representatives and Senate. Within five weeks of assuming their seats on midday of 30 June 2016, 20 resolutions for constitutional revision were received. Of these, 15 originally called for a constitutional convention (ConCon) to rewrite the constitution. The rest proposed a constituent assembly (ConAss), wherein both chambers of Congress jointly convene to undertake the task.  ConCon and ConAss are the only two modalities for revising the constitution. The Supreme Court has ruled that the ‘people’s initiative’, the third modality, may only be used for specific amendments, not broad revisions.

On 27 July 2016, during the meeting of the National Security Council, Duterte reversed his call for a ConCon, arguing that a ConAss would be a faster and cheaper option.  Taking the cue, House leaders shifted gear. Eschewing his own filed resolution stating that an elected ConCon ‘will dispel doubts that (charter change) is being sought to advance the political and economic interests of a few’, Speaker of the House Pantaleon Alvarez announced the agreement with the President for a ConAss. He also said that he would be drafting an Executive Order that would enable the President to create a commission of experts and multisectoral representatives that would assist Congress.  Why a legislator would be doing the work of the Office of the President reflects the close ties between the two branches on this and other controversial legislative agenda of the President, such as restoring the death penalty and lowering the minimum age for imposing criminal penalties on children in conflict with the law.

In mid-October, the House Committee on Amendments began to meet. One week after, 32 of the 43 Committee members voted to adopt a resolution to constitute Congress into a ConAss, before conducting the full length of public hearings. The President subsequently issued an Executive Order on 7 December establishing a Consultative Commission. Tasked to study, review, conduct consultations, and submit to the President within six months its recommendations on the 1987 Constitution, the new body may have up to 25 presidential appointees from different sectors. Majority Floor Leader Rodolfo Farinas, a legal and political heavyweight, is expected to take over the House Committee on Amendments soon. When this happens, it would be a clear signal that there is no stopping Duterte’s charter train.

Meanwhile, the Senate Committee on Constitutional Amendments began public hearings on 8 December. While the Senate, including minority members, broadly supports drives for amendment, members of the 24-member Senate who exhibit relative autonomy from the presidency may pose an obstacle to ConAss and favor a ConCon, or move for limited amendments only through a ConAss. However, the Senate president can be expected to muster the President’s clout to move in the direction of a ConAss.

The national democratic left has openly opposed certain government policies, notably the burial of the remains of the late President Ferdinand Marcos at the Heroes’ Cemetery and the extra-judicial killings of suspected dealers and users of illegal drugs. But they remain in partnership with the President who has appointed three allied personalities into his Cabinet. Similarly, the Bangsamoro fronts continue to express trust in the President. Assuming forward movements in the peace processes with the Bangsamoro and communist groups, these groups would not be averse, if not fully supportive, of ChaCha, and would therefore strengthen the President’s hand on this agenda. Negative or no developments on the peace process fronts, on the other hand, can transform these groups into opposition.

Why shift to federalism?

Legislators who support the shift to federalism argue that the 16.6 million votes for Duterte during the last presidential election was a mandate for federalism. Federalism is seen as suitable for a multiethnic and multilinguistic, archipelagic country. The current system is perceived to siphon local income and wealth to feed the central government and Metro Manila, the richest region in the country.  House resolutions in support of the shift claim that federalism would enable regions to plan and manage their own development without national government interference. President Duterte, for his part, has repeatedly said that only federalism will solve the problem of the Bangsamoro liberation fronts.

On the other hand, 26 million people voted for the four other presidential candidates. None of these contenders advocated any particular constitutional amendment, much less a revision. In all, it would seem that the ordinary Filipino citizen doesn’t have a strong feeling for or against federalism and the constitution. The Pulse Asia’s July 2016 survey asked respondents for the three top issues they felt should be immediately acted on by the newly installed President. Only 7% placed ‘concrete action to change the constitution’ in their priorities. Consistent with previous surveys, economic concerns like addressing inflation, pro-poor programs and job creation as well as quelling criminality topped the list. The same survey found that only 41% were aware of the current ChaCha effort, with more than half of those aware knowing very little. Probed on the federalism proposal, 39% said they approve, 33% were against, while 28% were undecided.

There is clearly low-level of knowledge of federalism all-around. Even some legislators mistakenly counter-pose the presidential system with federalism. When President Duterte referenced the French presidency as his ideal model, many journalists assumed that France has a federal government. In response, various organizations are holding seminars to broaden knowledge by looking at examples of federal governments across the globe.

Critics point to the sparse articulation to justify the shift. The University of the Philippines (UP) School of Economics expressed this frustration when it held a forum entitled, ‘If federalism is the answer, what is the question?’ It is not clear if the identified concerns could be addressed through regular legislation or specific constitutional amendments instead.  Without discounting what federalism could offer, the UP Department of Political Science’s position paper submitted to the House and Senate Committees on Amendments queried if the desire of some provinces to band together, the perceived limited fiscal powers and share in government revenues of local governments, and the other problems encountered with devolution may sufficiently be addressed by legislating a new Local Government Code. Alternately, certain provisions of Article X of the Constitution may be amended in order to enhance the powers of local governments and autonomous regions. Metropolitan political subdivisions and regional development councils could also be further empowered beyond their current coordinative roles and limited mandates.

Still, there are organized groups like the Citizens’ Movement for a Federal Philippines, and the PDP-Laban that assiduously carry the torch towards federalism. This torch was first lit in 1899 by key independence leaders of the First Philippine Republic when they undertook the task of crafting the country’s first constitution. It was revived in each of the country’s constitution-writing events – in 1935, 1971 and 1986. But each time, the quest failed and was tentatively put aside.  

The federalism debate and ongoing peace processes

The constitutional reform initiative is being undertaken in the context of two crucial peace processes. In particular, considering the demand for autonomy, the initiative has direct implications to the Bangsamoro peace process. While they do not object to the President’s federalism agenda, the Moro Islamic Liberation Front (MILF) continues to bat for the immediate passage of the Bangsamoro Basic Law (BBL), in keeping with the 2014 Comprehensive Agreement on the Bangsamoro. There is growing concern among the supporters of the MILF peace deal that the administration’s ChaCha push and a separate legislative track with the Moro National Liberation Front, signatory to the 1996 Final Peace Agreement,  would unduly delay and complicate the Bangsamoro project.  They also point out that the special characteristics and needs of the Bangsamoro would be lost in a symmetrical federal set-up, which is the common feature of most federal proposals that have been put out so far. As MILF chief negotiator  Mohager Iqbal emphasized, ‘Federalism could solve the entire problems of peoples in the country while the BBL can solve the Bangsamoro question on Right to Self-Determination’.

The Communist Party of the Philippines-New People’s Army-National Democratic Front (CPP-NPA-NDF) and their allied organizations have not indicated their position on federalism. It remains to be seen what socio-economic, political and constitutional reforms will emerge in the negotiations between them and the government. The parties’ technical committees will only flesh out the contents of their agreed outlines in meetings planned for January 2017. The deliberations are bound to be contentious and would take several months before clear common grounds can emerge. 

Trust issues

Without a cohesive articulation of the direction of the presidency and in view of President Duterte’s controversial programs against illegal drugs, threats to suspend the writ of habeas corpus, expressed disdain for human rights advocates, and unorthodox foreign policies, critical commentators have sought clarity on where the President is taking the country.  Christian Monsod, a lawyer and one of the drafters of the 1987 Constitution and former chair of the Commission on Elections, indicated that Duterte ‘is in a hurry to make far-reaching structural changes in our Constitution by exploiting his high approval rating and asking the people to trust him totally on this urgency and scope, the full range of which he has not even disclosed’. This constitutes a ‘dangerous demagoguery, and raises the question: Is federalism also a Trojan horse for other agenda?’  

There is also concern that the same political elites will likely capture the envisioned federal states. Nevertheless, current political dynasties are province-based and it would take some time before certain clans emerge as the ‘regional’ or ‘state’ power. Moreover, making the ban on dynasties operative or immediately implementable in the new constitution could deter this age-old bane of Philippine politics. However, the elite-dominated Congress has failed to legislate a ban on political dynasties, which the current 29-year old constitution already mandated them to do. Accordingly, if the same Congress will be tasked with rewriting the constitution, one can hardly expect that a real, effective ban on political dynasties would find its way into the new constitution. One instead would expect Congress to engage in gerrymandering as they reconfigure the country’s political and territorial subdivisions, in order to preserve their respective electoral advantages. They would also most likely lift term limits without putting sufficient checks on abuse and monopolization of power. While the requirement of popular approval may limit some of these opportunistic changes, the fact that the reform proposals will be voted upon as a package, rather than individually, may limit the potential role of the referendum to check such proposals.

Given these trust issues levied on Congress as a ‘captured’ institution and the particular tendency of the House to act a lackey of the sitting President, a ConCon is generally perceived as a more democratic mode by civil society groups and other actors who have already spoken on the issue. Some Congressional resolutions calling for a ConCon have also placed provisions that curtail the entry of the ‘usual suspects’ – former and present politicians and their kin. For example, a Senate resolution for a ConCon disqualifies anyone who ran in the 2016 elections to contest a seat. Moreover, candidates must not belong to any political party nor be supported by any organization, a criteria intended to ensure nonpartisanship of the body. 

The Senate, too, is wary of a ConAss for another reason. The constitution does not explicitly state that the votes of the jointly convened Houses for any proposed amendment or revision would be counted separately. Obviously, the Senate does not want its 24 votes to drown in the sea of almost 300 House votes. Although the President has indicated that the two chambers of Congress should vote separately, if push comes to shove, the matter would most likely be raised before the Supreme Court.

Next steps and chances of success

With the exception of Simeon Benigno Aquino III (2010-2016), all past presidents after Corazon Aquino pulled levers to move the ChaCha train. Former presidents Joseph Ejercito Estrada (1998-2001) and Gloria Macapagal Arroyo (2001-2010) also created their respective commissions to review and propose changes. Allies of Arroyo and of Fidel Ramos (1992-1998) collected signatures to spin off a People’s Initiative (PI). The Supreme Court, however, shot down these moves, in the first instance, for lack of an enabling law on the PI mode; and in the second instance, over questions on the integrity of the eight million signatures collected, and with the ruling that charter revision may only be done by a ConAss or a ConCon.

But more than legal obstacles, these past efforts failed on the issue of trust. The public suspected that the real aim is to enable the incumbent president to stay in power since a parliamentary system would allow unlimited terms. They feared that other items in the constitution, such as the ban on dynasties, the party list system and the term limits on elected officials, would be removed.  This distrust, according to one analyst, stems from the experience with former President Ferdinand Marcos (1965-1986) who manipulated the constitutional reform process in order to entrench authoritarian rule.

If the ConAss model is followed, as is likely to be the case, proposed amendments must be approved with a ¾ majority of all members of Congress, before their submission to a referendum. Will President Duterte’s push for federalism achieve what three former presidents failed to do? As in the past, the answer lies entirely on the political fortunes of the sitting president. How long Duterte’s popularity and his ‘supermajority’ hold in Congress would last, and what political developments in the country would permanently derail or decisively fast track the initiative, remain to be seen. In this regard, the 16th Century political pundit Niccolo Machiavelli provides a grim reminder: a leader may possess virtu or the ability and drive, but fortuna, alas, is transient and fickle.  

Miriam Coronel Ferrer is a professor of political science at the University of the Philippines, and was chair of the Government Negotiating Panel that signed the 2014 Comprehensive Agreement on the Bangsamoro with the Moro Islamic Liberation Front.