Constitutional reform: Where are we now?



J. Art D. Brion (RET.)

Justice Art D. Brion (Ret.)

As of this month, the Duterte administration has reached three important milestones for 2019.

The first is the passage into law of the Bangsamoro Organic Law and the inauguration of the Bangsamoro Autonomous Region in Muslim Mindanao. These are significant steps that shall hopefully increase our chances for peace in the country,

The second milestone is the successful handling of the 2019 mid-term election. While the Duterte candidates mostly won, the victory came with no shameful taint of irregularities, unlike the immediately past elections that left some unpleasant aftertaste.

The third is the change-over of the Supreme Court from the much maligned Sereno administration, into a more unified court whose rulings, even in sensitive and potentially controversial issues (like martial law), have not elicited widespread public indignation or objections.

By the end of this year, the President would have appointed 11 of the members of the Supreme Court (including the chief justice).  This will be the appointive configuration of the court up to the end of his term.

If the President has not achieved complete victory at all at the middle of his term, it is in his war against illegal drugs. While a significant lessening of the trade in illegal drugs has been noted in many parts of the country, the naysayers continue to belittle his record because of the claimed cost in lives and violation of human rights.  The illegal drug trade, in fact, still remains uncurbed.

No significant headway against corruption has likewise been made, apparently because the administration’s entry into the fight has been on tiptoes.  Many officials, dismissed for corruption, have not been charged at all; some were simply “recycled” to other positions.  Even the leading lights in the DAP and PDAF scandals, former President Benigno Aquino III and his budget secretary Butch Abad have so far been spared.

Constitutional change and the introduction of federalism, the most prominent promises in the 2016 election, also appear to be at a standstill.

In fairness to President Duterte, constitutional change is not an easy task to undertake.  It was in the agenda of all post-1987 Constitution presidents (except for President Benigno Aquino III who had been preoccupied elsewhere), but all attempts failed for various reasons, among them, the perception – rightly or wrongly – that these were motivated by the desire for term extension.

Early in his presidency, President Duterte convened a Consultative Commission (ConCom) on constitutional change, composed of a select group of legal luminaries.  They were tasked to “study, conduct consultations, and review the provisions of the 1987 Constitution.” They presented the President the draft of a proposed constitution.

The public’s reception of the draft has been lukewarm for various reasons. First, federalism is its centerpiece. Federalism, as a concept, is foreign to our national experience. Our governmental structure has always been unitary and people do not really know how federalism works.

The objection expressed by the presidential daughter, Mayor Sara Duterte, that federalism would only worsen the division of Mindanao into smaller kingdoms,  helped, in no small measure, to dampen people’s enthusiasm for federalism. This concern echoes the current thought that federalism could ultimately dismember the country or would only tighten the hold of political dynasties on their respective areas, in both cases, leaving the country worse off.

Second, a procedural problem arose in light of the ambiguities of the 1987 Constitution’s provision on amendment and revision: voting shall be by “all” members of Congress, without defining whether the two Houses shall vote separately or as one body in acting as a constituent assembly or in calling for a constitutional convention.

In December, 2018, the House of Representatives approved its proposed constitutional draft and passed it on to the Senate.  To date, the latter has not responded and has not indicated any sign of responding.

At about the same time, the President delegated the handling of constitutional reform to the DILG which has recently taken a conspicuous role by engaging in consultations and advocacy meetings. It has apparently given its assignment serious thought, as it has been focusing on specifically targeted areas with well-designed  and closely calibrated messages for its audience.

It has prioritized the areas where awareness and acceptability of constitutional reform and federalism have been weakest.

Its carefully tailored “soft” messages focus on concerns people will easily understand and respond to. “What is in it for us” and “how will it affect our localities” appear to be the leading questions it has been bringing to the people’s attention.

For now, it has not fully emphasized federalism and other sensitive political issues, particularly in Luzon.  Perhaps, the President himself, later and at the proper occasion, shall raise these issues with politicians whose language he knows best.

The “soft” selling approach has so far been fair, assuming the use of government funds, facilities, and personnel in DILG meetings to be above-board under Philippine historical and contemporary standards and practices.

A cause for concern, however, is the timing of the government’s reform moves since the President is already in the 2nd half of his term.

Is there still time for the DILG’s “soft” sell approach?

The preparation of a working draft of the constitution for more specific discussions may take time. The collegial deliberations that the two Houses of Congress need as a constituent assembly will also take time. The constitutional convention route, on the other hand, may take longer and may likewise be unwieldy.

If complications arise in the course of amendment, or if time would run out, will President Duterte, as President Marcos did in 1973 and President Cory Aquino did in 1987, resort to legal short cuts?

If such short cuts take place, how will the Duterte-appointed Supreme Court react?

Or, will the President, like the true statesman that he presumably would wish to be, simply quietly finish his term and let constitutional reform be the problem of his successor?