The Philippine constitutional reform process: Fast-tracking charter change amid uncertainties?

Despite the declared administration priority, the Senate has not moved the charter change process as eagerly as has the Lower House. Controversy also hounds floated proposals that would extend President Duterte’s term in a transition to a semi-presidential, federal system.  Moreover, the rush to hold a constitutional referendum could undermine any plan to engage the public to make an informed choice in a referendum, and sideline the passage of the Bangsamoro Basic Law. The fragmented efforts have focused attention on the politics around charter change rather than on the substantive and technical viability of a federal state system for the Philippines — writes Professor Miriam Coronel Ferrer.

As the year 2018 stepped in, the House of Representatives (HoR) avidly pushed to level up the process of changing the 1987 Constitution of the Philippines in favor of a federal state system. Over the last 18 months, the process had gone through the motions. Two dozens of resolutions have been filed, including a full draft charter retaining the presidential system of government, while formally establishing a federal republic. The HoR Committee on Constitutional Amendments and Revisions conducted and completed its committee hearings, with groups and experts invited to give their positions generally on charter change and federalism. Moreover, the Lower House organized four Technical Working Groups, assisted by the Committee’s secretariat, to actually draft another version that presumably will be most aligned with the President Rodrigo Duterte’s own ideas, with apparent preference for a semi-presidential system.

Despite this push in the lower chamber, the two chambers of Congress have yet to formally convene as a Constituent Assembly – the most likely of the two available modalities to revise the constitution, the second one being a constitutional convention, in addition to the popular initiative which may be used to amend specific constitutional provisions. Although Duterte issued Executive Order No. 10 establishing a Consultative Constitutional Commission 13 months ago, the members of the Commission that was to assist Congress in writing a new constitution within a six month-long calendar have yet to be appointed. The establishment of parliamentary technical working groups makes the operationalization of the Commission a non-priority. In any case, awaiting its establishment could unduly delay the reform process. Moreover, in the Senate, the process has not moved any farther since the first salvo of charter change-related resolutions in July 2016, when the country’s 17th Congress opened, and a round of committee hearings in December 2016, and a fresh round called for by the Senate Committee on Constitutional Amendments and Revision this month. 

Rather, high-profile congressional investigations of various controversies, hearings of filed impeachment charges against top officials, the declaration and extension of martial law in Mindanao resulting from the fighting in Marawi City, and major bills like the annual budget and tax reform have kept the legislators’ hands full.

The Speaker of the lower house is aiming for a date in May 2018 for a referendum on the new draft constitution, to coincide with the scheduled local elections for village chiefs.

So, will Congress make charter change happen in 2018? That seems to be the goal of HoR Speaker Pantaleon Alvarez.  In interviews, he said he wants the two Houses of Congress convened into a Constituent Assembly this month. He is aiming for a date in May 2018 for a referendum on the new draft constitution, to coincide with the scheduled local elections for village chiefs. Such a calendar would obviously leave little room for public discussions on the actual draft that Congress will put together. A lack of public consultation would in turn limit the ability of the pubic to make an informed decision in an ultimate referendum, thereby creating potential opportunities for groups who may wish to scuttle the reform process.

Humps in the Senate

Can the Senate leadership keep in pace with Alvarez? Interestingly, Senate President Aquilino ‘Koko’ Pimentel, III had not quite frontloaded charter change in the upper house as one would expect of the current head and son of the founding father of the Partido Demokratiko ng Pilipinas-Lakas ng Bayan (PDP-LABAN, Democratic Party of the Philippines-The Country’s Strength). Since it was set up and after its merger with LABAN in 1983, the Mindanao-born PDP has advocated for federalism. Duterte, who hails from Mindanao, adopted the PDP-Laban as his political party when he ran for and won the presidency in the 2016 election.

The ruling party remains a minority party in the Senate with only four party members and may not be able to secure the needed three-fourths vote in this chamber to pass a new charter.

Although the PDP-LABAN harvested scores of politicians defecting from other parties in the HoR and local governments, it remains a minority party in the Senate with only four party members, out of the currently occupied 23 of 24 Senate seats (Senator Allan Peter Cayetano vacated his seat when he was appointed Secretary of Foreign Affairs). Pimentel keeps a tenuous hold on the presidency in the Senate only through the support of the other pro-administration senators and the acquiescence of the leading opposition parties, the Liberal Party (LP) and Akbayan. A good number of these nationally elected officials are not as keen on or attuned to the federalism agenda. Once described as individual islands in an archipelago of legislators, senators act with more independence from each other, and even from the president, especially on unpopular measures. It seems, for example, that the majority of the Senators will not support the House bill restoring the death penalty for certain crimes, a priority bill of the President.

The Senate is also plagued by the thought that, convened as one assembly, the voices of the senators will be drowned out by almost 300 House Representatives. The constitution is vague about how the three-fourths vote required to pass a new charter shall be determined – whether as one count, or as two separate votes of the two Houses. Most senators want to be assured first that their votes would be counted separately from that of the HoF. However, only the Supreme Court can rule on this. But the Supreme Court will most likely rule on the matter only when it becomes justiciable – that is when the two bodies are actually convened as one. In any case, with the six staunch opposition-senators from the LP and Akbayan, plus potentially two or even more senators who are unconvinced, Pimentel may not be able to secure the needed three-fourths vote in this chamber to pass a new charter.

Charter change with term extension?

In the meantime, earlier and recent public utterances of high-level officials on a charter change roadmap that opens the possibility of cancelling or having no elections (called ‘no-el’) in 2019 and/or 2022, leading to President Duterte staying beyond his six-year term, are raising public alarm on the process. According to the third stage of the roadmap released by the Philippine Communications Office in September 2017, elections for the president as head of state will take place as scheduled in May 2020. However, President Duterte may stay on as head of government until 2025, when the first parliamentary elections would be held under the fourth stage. This amounts to a three years’ extension of his current term as head of government.

The public consideration of these controversial ideas could further divert attention from the core issues and deliberately or inadvertently undermine the charter change initiative.

This and other similar scenarios of staying on beyond six years recall attempts of previous presidents to change the constitution that became unpopular not because of the proposed charter change per se, but because it was seen as a ploy of the incumbent to hang on to power. Coming in the heels of President Duterte declaring his option to extend the imposition of martial law in Mindanao nationwide, or to put up a revolutionary government, the current charter change push is treated with even more suspicion as a ploy to reinstate authoritarian rule indefinitely. Irked by the floated ‘no election’ scenario, independent senator Panfilo Lacson issued a statement on 4 January blaming the leaders of the two chambers for ‘having started the campaign against [charter change] … Floating  a no-el and term extension scenario, as recent history would suggest, won’t help their advocacy to shift to a federal form of government…’. The public consideration of these controversial ideas could further divert attention from the core issues and deliberately or inadvertently undermine the charter change initiative.

What now for the Bangsamoro Basic Law?

As the emerging transitory provisions are fast becoming controversial, Bangsamoro advocates likewise wonder whether, despite President Duterte’s repeated assurances, a Bangsamoro Basic Law (BBL) will see the light of the day at all. The BBL will implement substantive parts of the Comprehensive Agreement on the Bangsamoro that the government signed with the Moro Islamic Liberation Front (MILF) in 2014. It is intended to establish a Bangsamoro autonomous government with greater political and fiscal autonomy and a potentially larger geographic scope than the current Autonomous Region in Muslim Mindanao (ARMM). 

Between charter change and focusing on passing the BBL, both declared priorities of the President, the Congress is torn.

The passage of the BBL will also kick off the full decommissioning of the weapons and combatants of the MILF, which has been substantially delayed due to the unfulfilled legislation. It will also address the unrest generated by the delay, a condition that has loosened the ground for radical elements to infiltrate Moro areas and align themselves with ISIS or ISIS-like organizations, such as the conglomeration of small armed groups that engaged government forces in several months of fighting in Marawi in the second half of 2017. The fighting was the basis for the declaration of martial law in Mindanao in May, which in December was extended for the second time to last for the whole of 2018.

Between charter change and focusing on passing the BBL, both declared priorities of the President, the Congress is torn. Based on pronouncements echoing previous concerns that some provisions in the BBL may be unconstitutional, congressional leadership appears to favor putting more effort in the charter change. Also, in fairness, the Gonzales-De Vera draft charter filed as Resolution No. 8 of Both Houses in the HoR guarantees a Bangsamoro autonomous region with all the areas provided in the peace accord already incorporated. Similarly, the 31 August 2017 PDP-LABAN draft charter, which proposes a gradual process of instituting the equivalent of federal states (called regions) in different parts of the country, provides for the immediate installation of a Bangsamoro autonomous region upon the passage of a new constitution.  In effect, the argument put forward by those supporting the charter change is to leapfrog to an even more autonomous Bangsamoro federal state, one without the encumbrances of the current constitution, than to haggle with disinterested legislators for a BBL. Still, according to MILF Implementing Panel Chair Mohager Iqbal in written reply to this writer, ‘The MILF position is very clear and consistent: BBL first and then federalism. The sequencing is the question. Besides, we hold on to something contained in signed agreements’. 

While passing a law may appear faster than changing the constitution, legislating a BBL will still face serious challenges.

If Congress gives utmost priority to tackling the BBL in the first quarter of 2018, it will have to reconcile the four versions in the House and two versions in the Senate. These include the version officially transmitted by the Office of the President to Congress and was the product of the reconstituted, MILF-led Bangsamoro Transition Commission. The other version filed by former president now representative Gloria Macapagal Arroyo resurrects the major amendments introduced by former senator Ferdinand Marcos Jr in the previous Congress. The Pimentel version in the Senate does away with some of the politically contentious provisions such as the ‘opt-in’ provisions where other areas may through a plebiscite subsequently join the Bangsamoro, among others.

In all, while passing a law may appear faster than changing the constitution, legislating a BBL will still face serious challenges.

Where to President Duterte?

At the end of the day, as the saying goes, if there is a will, there is a way. But in what direction President Duterte’s will goes so that legislators can more decisively follow suit is unclear. Everyone is kept guessing, as the President shuffles the cards in his sleeves. It remains to be seen whether or not the BBL will not be sacrificed for other priorities, and what version of a semi-presidential and federal system he will support as different drafts from offices in Malacanang Palace are apparently still in the works. The article on transitory provisions of the PDP-LABAN draft, in fact, is still empty, apparently still seeking consensus with the President and the other interlocutors in the Palace.

While a poker game may be won through bluffing, this presidential style doesn’t generate broad confidence, and for critics, the stakes are too high to leave to chance. Thus the political rather than the more technical merits and demerits of shifting to a federal system for the Philippines have dominated the discussion and have unduly clouded the process.

Miriam Coronel Ferrer is a professor of political science at the University of the Philippines.