Federalism: Massacre of the LGUs?

Published August 19, 2018, 12:05 AM

by Charissa Luci-Atienza & Bernie Cahiles-Magkilat



Former Chief Justice

The incumbent President, as chairman of the Federal Transition Commission, can thus hold on to power with absolute control of the Government and all its branches, not just the Executive Department.

Hilario Davide Jr.
Hilario Davide Jr.

Under the original Transitory Provisions of the draft Constitution, nothing can prevent the incumbent President to run for president in the first election under the new Constitution of the Federal Republic of the Philippines.  The new term under it is not a re-election under the 1987 Constitution, which is prohibited under it. The ban against re-election will no longer apply to one running under the new Federal Constitution.

Because of the vigorous criticisms that the Transitory Provisions would allow the President to run for re-election and thus perpetuate  himself in power, and of the President’s directive to the Committee to revise the provision and not to allow him to run, the Committee revised Article XXII.

As thus revised, Section 1 of the Transitory Provisions now reads:

“The term of the President and Vice President which shall end June 30, 2022, shall not be extended.”

Its Section 2 now provides:

“The incumbent President is prohibited from running as President in the 2022 election under the Constitution.”

Take note that the prohibition does not apply to the incumbent Vice President.

But, what is rather intriguing in this revised Article on Transitory Provisions is that within six months from the ratification of the draft Constitution, the President shall call for an election of a Transition President and Transition Vice President. It would thus obviously follow that assuming that the elected Transition President and Vice President are not the incumbent President and Vice President, we shall have until 30 June 2022 two sitting Presidents and two Vice Presidents, the incumbents whose term will end on 30 June 2022, and the Transition President and Transition Vice President until the end of the Transition which is on 30 June 2022. Yet, nothing is mentioned of the power of the incumbent President. It does not provide that he continues to exercise his powers under the 1987 Constitution. On the other hand, the Transition President shall exercise all the powers of the President under the draft Constitution until 30 June 2022. The long and short of it is that the incumbent President would be a mere Christmas decoration – he has a term up to 30 June 2022, but he has no more power.

But here is the clever catch: the incumbent President is not prohibited from running as Transition President. To avoid therefor the anomaly of having two Presidents during the Transition Period, the incumbent President is allowed to run as Transition President. He will surely win. Nobody might even oppose him. He would thus become the First President under the Federal system and the last under the Unitary system under the 1987 Constitution. He can choose who his running mate Vice President be because under the draft, the candidate for President and for Vice President must run in tandem. The incumbent President can choose former Senator Bongbong Marcos as his running mate for Vice President.  In a tandem scheme the vote for the President would be counted in favor of the Vice President. Thus, Marcos will easily win and become the First Vice President under the Federal system. Under this scenario, the incumbent President would remain as the regular President and the last under the 1987 Constitution.  As Transition President, he would, in effect, be the First President of the Federal Republic. What about Vice President Leni Robredo who was duly elected Vice President and whose term would end on 30 June 2022 which even Section 1 of the Transitory Provisions confirms? She will remain as such until 30 June 2022 but without power. The only possible benefit she will get is that Bongbong’s election as Transitory Vice President would render moot and academic the protest filed by Bongbong Marcos with the Presidential Electoral Tribunal against her. Then Section 5 of the revised Transitory Provisions, which provides that the Transition President and Transition Vice President  shall be ineligible to run for any public office in the May 2022 elections, can be adjusted to allow the Transition Vice President to run in the said May 2022 election. Or Transition Vice President Bongbong Marcos can just simply resign as Transition Vice President and would then be eligible to run in that election as President.

The Federal Transition Commission is preserved in the revised Article XXII (Transition Provisions) with all the powers I earlier mentioned, the strongest of which is in paragraph (c) of Section 7 of the Transitory Provisions, which reads:

“To organize, reorganize, and fully establish the Federal Government and the governments of the Federated Regions until 2022, in accordance with the Constitution.”

The Transition President shall now be its chairman. It shall have 10 regular members all appointed by the Transition President and the following ex-officio members: the Transition Vice President, the Senate President, the Speaker of the House of Representatives, and all living past Presidents. The commission shall cease to exist on 30 June 2022, but the new President – meaning the one elected in the May 2022 election under the new Federal Constitution – shall complete the transition process to the federal system.

During the transition period, the Transition President can even easily declare martial law.

There is still another provision in the proposed Constitution that gives the President control of the federated regions.  Section 16 of Article XIX on National Security and Public Order gives him the power to intervene and take all measures necessary and proper in case any federated region fails to comply with its obligation as provided for in the Constitution which seriously undermines the sovereignty, territorial integrity, economy or the unity of the Federal Republic.

The reality of this dictatorial rule is further bolstered by making “lawless violence” as a new and additional ground for the declaration of martial law or the suspension of the privilege of the writ of habeas corpus. Under Section 18 of Article VII of our present Constitution, there are only two grounds: invasion and rebellion. But under Section 18(6) of Article VIII of the draft Constitution of the Consultative Committee, the grounds are now three: “invasion, rebellion, or lawless violence.” The President can easily justify “lawless violence.” (To be continued)