Legal Memorandum [1]On Charter Change Under The Duterte Administration: Resolution of Both Houses No. 8 Proposed Federal Constitution
by Atty. Neri Javier Colmenares[2]
Introduction
The specter of another charter change (Cha Cha) is again haunting the Filipino people. While there is nothing intrinsically wrong with amending the Constitution, the moves to amend the Constitution under the Duterte administration are not merely proposing a shift to Federalism, but are actual efforts at centralizing power to Pres. Rodrigo Duterte, granting him legislative powers, institutionalizing the discredited economic liberalization policy and diluting people’s rights.
There are two pending charter change proposals, the PDP-Laban Proposal which is basically more of a shift to Parliamentary-Federal form of government and Resolution of Both Houses No. 8 (RBH 8) filed in the House of Representatives on August 2, 2016. This paper will focus on RBH 8 as it is the pending bill being considered by Congress today that will be tackled by Congress when it reconvenes in January 2018.
RBH 8 is an extremely dangerous piece of legislation both in terms of procedure and content. It contains provisions that abolishes Congress, grants Pres. Duterte legislative powers, practically abolishes the current constitutional commissions, and overhauls the judiciary from the Court of Appeals and Sandiganbayan down to the Regional Trial Courts and terminates thousands of government employees and officials. Considering that Pres. Duterte has the power to appoint all their replacements, RBH 8 makes him the sole appointing authority of almost the entire government, in one fell swoop.
RBH 8 also eliminates the “protectionist” provisions in the 1987 Constitution by institutionalizing the opening up of the country and the economy to transnational corporations. Worse, it essentially disallows the people from exercising the same ‘people power’ launched against a dictator in 1986 and dilutes many of the rights provided by the 1987 Constitution.
The 1987 Constitution contains two procedures in revising[3] the Constitution—the convening of a Constitutional Convention (Concon) or through Congress itself acting as a “constituent assembly” or “Con Ass”.
RBH 8 does not propose amendments via a Constitutional Convention but instead through Congress, where Pres. Rodrigo Duterte enjoys a super majority. Congress, acting as a constituent assembly can “expeditiously” approve RBH 8. The procedure under RBH 8 is “con-ass” where Congressmen and Senators are the ones tasked with amending the Constitution—and approve the speedy approval of the anti-people provisions under it.
However, a Congress which has traditionally been compliant to presidential intervention and control cannot be given the task of revising the Constitution, especially under the present context. Additionally, Congress has previously passed many laws that have proven very detrimental to the people’s interest. It must be noted that, inter alia, our electricity remains high because Congress passed the EPIRA Law, gasoline and fuel are expensive because Congress passed the Oil Deregulation Law, mining companies ravage our natural resources because Congress passed the Mining Act and all efforts to repeal these anti people laws were resisted by Congress for years. Congress, as a constituent assembly, would also be the center of lobbying of big business interested in the economic provisions of the Constitution.
Please download the document here. “Chacha under Pres. Duterte”
Download Joint Houses Resolution RBH0008 on the New Constitution
[1] Opinion and Study drafted for MAK. (Draft as of December 4, 2017).
[2] Atty. Neri Colmenares is a human rights lawyers and is also the Chairman of the National Union of Peoples Lawyers. He has written various papers on human rights, international humanitarian law, and lectures in the Mandatory Continuing Legal Education (MCLE) seminars on various political and constitutional issues, including Jurisprudence in Amending the Constitution (The Chacha Jurisprudence). He has studied the various charter change proposals since 2004 and written papers critiquing these proposals such as: (i) CODAL Legal Memorandum on Charter Change (January 20, 2005); (ii) House Resolution 1065: Charter Change under Pres. Gloria Arroyo (November 27, 2005); (iii) Neglect of Education in the Charter Change Proposal (June 6, 2006); (iv) Charter Change: Corrupting the Electoral System (January 26, 2006); (v) Charter Change of the House: Recipe for Dictatorship (January 17, 2006); (vi) Legal Memorandum on Charter Change Series of 2008 (September 9, 2008); (vii) Memorandum on the Surgical Charter Change (August 12, 2008); (viii) Legal Study on Constituent Assembly under HR 1109: A Comparative Analysis with HR 1450 (2009); (ix) The Latest Chacha Moves of Congress: Destroying Philippine Economy and the Future (2010); and (x) Critique of the Economic Chacha under Pres. Aquino (2013). He was an Associate of the Asian Law Centre when he was taking up his PhD at the University of Melbourne (deferred) and has recently appointed Associate of the Centre for Indonesian Law, Islam and Society (CILIS) at the Faculty of Law in Melbourne.
[3] The third procedure, the People’s Initiative, is mandated to propose piecemeal amendments to the Constitution.
