Forum On Constitutional and Fiscal Autonomy Groups (CFAGs)

Photo credit: GMA News

By: Christian S. Monsod

I am asked to provide the framework and the context of our forum today, with each of the 6 eminent speakers sharing with us the role of their institutions in our democratic system of checks and balances and the importance of their independence and unobstructed work in serving the best interests of the nation and our people.

My talk consists of three parts – first, the intent and design of the Constitution with respect to the constitutional offices with fiscal autonomy. In doing, so, I may touch on other provisions because the constitution must be read as a whole even when specific issues are on the table. The second part is the context of this forum. And the third part is “the challenge we face”.

(A) THE CONSTITUTION AND THE INDEPENDENT CFAGs

What is happening today at the political scene with threats of abolishing the Congress and the Supreme Court, the aborted zero budget for the CHR, the resignation of the Comelec Chair, the impeachment charges against the Chief Justice and the threat of it against the Tanodbayan, among others, is not the design of our Constitution when it provided for separation of powers and a system of checks and balances.

The backdrop of the Constitution was the overthrow of a dictatorship described by its Framers as “a nightmare of greed, intolerance, brutality and disrespect for democratic institutions.”

Its inspiration was EDSA and the restoration of democracy. But EDSA was more than that – it was the promise of a new social order with radical changes, but through democratic means.

That was a tall order. And before the writing of the Constitution, national consultations nationwide were held to listen to the people and they overwhelmingly preferred the stability of familiar structures under the 1935 constitution – a democratic, representative, presidential system, with checks and balances and separation of powers. And, they wanted the power to directly vote for their president. But from the expeirence of the Marcos regime, they also wanted safeguards against the return of authoritarianism in any form, they wanted social justice and wanted our national destiny to be firmly and safely placed on Filipinos themselves.

All this was, in many ways, counter-cultural and therefore “radical” because our history is marked by a tendency to give up powers to colonizers and dictators, of deferring to so-called “strong” leaders, of allowing a business oligarchy to rule our economy and of over-dependence of the poor on rich landowners for their basic necessities.

This is validated by the studies of experts that a number of factors account for our laggardness among our neighbors in addressing mass poverty and inequality, but foremost are flawed policies and weak institutions that are rooted in a feudalistic system that has been impervious to change for generations and, of course, its companion evil — corruption.

Thus, the Constitution can be viewed as affirmative action for our democracy. It seeks to correct the shortcomings of previous constitutions, to address the “wrongs” of history and to empower and enable the ordinary Filipino to rise above himself. It makes difficult the consolidation of powers. It provides a system that should correct itself when it theatens to get out of control. And in that process of correction, the role of the people is a critical factor.

Our Constitution is considered one of the most progressive in the world alongside that of South Africa. We already have the provisions that many countries are trying to install in theirs in the search for peace and development.

The 1987 Constitution was the first time that we spoke to the world as a truly independent and democratic Filipino nation. It is a document that had not been imposed on us by any colonial power or by a dictatorship.

High on the list of its new provisions are measures to strengthen the system of checks and balances, such as a new Article on Social Justice and Human Rights as the central theme or “heart”of the Constitution to empower the poor as the center of development and a new Article on Education and other means to break the vicious cycle of poverty.

The three traditional branches of government exercise checks and balances on one another, but subject to the “checking” powers of three independent constitutional commissions and the new office of the Ombudsman – a system that is unique to our system. Plus the Commission on Human Rights. The Constitution also strengthened   the Judiciary that can be overpowered by the Executive and the Legislative, with the power of judicial review of “grave abuse” by any agency or instrumentality of the government. We learned in law school that the legislative is the purse, the Executive is the sword and the Judiciary is the conscience of the nation.

The Office of the Ombudsman is tasked to act swiftly and inexpensively on any act or omission by any public official on anything illegal, unjust, improper or inefficient. It was even proposed to be called “sumbungan ng bayan”, to encourage the poor to bring their problems to it. Moreover, the appointment of the Tanodbaysn is vetted by the Judicial and Bar Council, not by the Commission on Appointments, and to further insulate it from political influence or interference, the Tanodbayan has the power of appointment over the officials and employees of the Office, except for its Deputies. The Congress also saw fit to give it prosecutorial powers and to “investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment, if warranted.”

The powers of the Ombudsman must surely make a president uncomfortable if he has “moist eyes” on being an autocrat, as my friend Rene Saquisag would say.

To ensure the independence of these institutions, their basic powers are inscribed in the Constitution and cannot be diminished by ordinary legislation, they all have fiscal autonomy and the Tanodbayan and members of the constitutional commissions, except for the CHR, can only be removed by impeachment, just like the President, Vice-President and members of the Supreme Court.

The impeachment process was liberalized under the 1987 Constitution as part of the broader accountability mandate, with fewer votes needed in the House and in the Senate compared to the 1935 Constitution, the addition of “betrayal of public trust” as a ground for it, and the meticulous steps to hasten the proceedings. But the principles of “good faith” and “honest mistakes” on the part of the official as well as its primary purpose as a remedial process to maintain constitutional government, and not as a personal punishment, still apply.

This is a serious undertaking that should not be cheapened by other motives. And those that abet it also encourage our people to disrespect the Constitution that would devalue it as the most potent weapon to protect their rights and their freedoms. Cheapening the power of impeachement would constitute, wittingly or unwittingly, a step towards what mental health experts refer to as “malignant normality” which can take different forms but, in the case of democratic countries, considered as part of the democratic process. Thus, a dangerous leader becomes normalized, and malignant normality comes to dominate the governing dynamic.[1]

The Commission on Human Rights is also a creation of the Constitution but is not considered on the same level as the Office of the Ombudsman and the Constitutional Commissions under Article IX. It’s power is to investigate violations of human rights, civil and political. regardless of who commits it, as defined in the Universal Declaration of Human Rights.

At this point, may I take a moment’s digression on the matter of civil and political rights as distinguished from economic and social rights.

The 1987 Constitution cut the umbilical cord of the 1935 and 1973 constitutions to the United States Constitution, which gives primacy to civil and political rights because it is a country of immigrants who all started from the same position and only wanted to be free from autocracy.

Our Constitution gives social and economic rights equal primacy with civil and political rights because we are a country of inequalities from the colonial days to the present where the starting positions of the rich and the poor are not equal. Social Justice is about the adjustment of these starting positions.

To make that adjustment, the State can use its police powers such as income distribution programs (primarily quality education and quality health care, ensuring the inalienable rights of labor) and asset reform programs for the poorest of the poor (agrarian reform, urban land reform and housing, ancestral domain and fisheries reform).

(B) THE CONTEXT OF OUR FORUM

Why this forum in the first place? Because there are alarming signs of creeping authoritarianism and of threats to our democracy through constitutional or extra-constitutional means and, equally alarming, signs of deference to the Executive by institutions precisely tasked to provide the checks on any abuse of power, like the Congress and the Supreme Court.

The talk of the town is a revolutionary government with total powers as a transition to a federal-parliamentary system and the added matter of a PDP-Laban draft constitution that may be a more serious problem than the RevGov for two reasons: (1) it would constitutionalize a “strong” president with extraordinary powers and a centralized federal government in the transition, (2) it changes the central theme of our Constitution from social justice to the agenda of business.

These are big issues because Social justice and Human Rights is the centerpiece program of the Constitution for a reason. To finally correct the oppression of the Marcos regime and the centuries of injustice to the poor by a ruling elite, many from business, which has yet to be completed. Business and the PDP-Laban appear to have completely forgotten the context of the 1987 Constitution – the historic event of EDSA – in which they both played a part, and where we promised the poor a new social order. We forget that promise and there is hell to pay from the poor. As my former colleague at the Comelec, the late Haydee Yorac, would say – “Let justice be done though the heavens fall.”

We are told that the best predictor of the behavior of an elected official who aspires to be an autocrat are the statements of the person himself because those are what brought him to power in the first place. As early as 2015, then Davao City Mayor Rodrigo Duterte already mentioned his plan for a revolutionary government. He would padlock Congress and the judiciary through extra-constitutional means. The RevGov, he says, is meant to fix government and the Constitution because “the wellspring of corruption is the Constitution itself,”

And we are all familiar with his utterances about the evil of drugs: ‘If you know of any addicts, go ahead and kill them yourself as getting their parents to do it would be too painful.’

How could he be any clearer about his agenda? And from all accounts, his Filipino audiences whether here or abroad reacted positively to his statements even the outrageous with the foul language.

Why that reaction? Was it because they saw in him the authentic representation of the real change they have been waiting for?

In 2016, many voters deserted the mainstream. As someone describes the phenomenon – most voters “hungered for politicians who can make a rousing argument for drastic solutions.”

And if many of us are increasingly frustrated about a system that can’t seem to find its bearings, can you imagine the frustration of the poor amidst a first world culture of consumerism and of shameless self-promotion by those in power to preserve their entitlements and domination of national policies?

In other words, Duterte the Mayor got it right on the deeper yearnings of the people and was elected by a huge plurality. And the question is: can Duterte the President pull it off on his own terms – the radical change he promised? Whether a RevGov was a trial balloon or not is really irrelevant. We can only ignore the sentiment behind the vote for him at the peril of undertaking the wrong solutions.

Hence, the RevGov. The President and his people are saying that his reform agenda is suffering delays because he underestimated the gravity and complexity of some of the problems, like the drug problem. More important, the president is being obstructed by corrupt politicians, a lazy or disobedient bureaucracy, an entrenched oligarchy and the destabilization plots of the Yellows and the Reds.

There are opinions that the RevGov option is being floated by the President because the issues of corruption, extra-judicial killings and underperformance on his election promises are beginning to catch up to him. And a RevGov is the quickest way to abort these threats. But the President is not that reckless and there is always his supermajority in the Congress, whose loyalty however may not be always total,, and a Supreme Court that is increasingly deferential to him with three questionable decisions – the Marcos burial as a hero, the martial law ruling that virtually allows him to proclaim it anytime anywhere, and the dismissal of the de Lima petition to be freed from detention on the basis of technicalities, and not substantial justice.

In fact, a reading of the PDP-Laban proposed federal constitution retains the provisions on the Supreme Court, Office of the Ombudsman, Commission on Human Rights and the commander-in-chief powers. There are no amendments to weaken the offices and safeguards. And it may occur to us that the agenda is to keep the institutions but to appoint people totally deferential to the President to occupy them, after the incumbents have retired or have been removed from office through impeachment or “for cause”.

A revolutionary government is defined as a government after an overthrow, repudiation or replacement of an established government or political system to effect some desired result. There is nothing in the Constitution that allows it. It is always described by its proponents as a temporary measure. In practice, a revolutionary government is just another dictatorship. It’s about power, either by one person or a revolutionary council. In practice, its “transition period” can last a long, long time. In short,, a revolutionary government in whatever form may be the biggest threat to date to our democracy.

As a lawyer, surely the President is aware of the legal consequences of going outside the Constitution to address his problems of governance. He can be considered as resigned from (or as abandoning) the presidency and abrogating the Constitution on behalf of a “revolutionary government” of his own making, for the reason that the government that he now heads is not performing. That sounds like a “theatre of the absurd”.

The military has already said that it would not go along with a revolutionary government and will choose to uphold the Constitution. I believe that the military will stay the course.

Without the option of a revolutionary government, the President has only one other option to become an autocrat — through “constitutional authoritarianism”. In other words through charter change. As stated in the summary of the PDP-Laban proposal, in the transition to a federal-parliamentary government, we will need:

(1) a popularly elected presidency to hold and unite the country together and ensure that the transition to federalism and as an arbiter of regional disputes;

(2) an effective president to deal with powerful countries like China and the United States, as well as to effectively compete in a globalized world economy;

(3) a president who can decisively address the numerous national security problems and natural disasters;

(4) a pure parliamentary system without strong political parties can be unstable. It will take time to build strong political parties and a president to ensure that there is no gridlock in our political system and a president who can remain decisive in cases of national crises.

The time line for implementing federalism would start with the enactment of a new Regional and Local Government Code within 18 months (unless extended by the President) from ratification of a federal constitution (originally scheduled in 2019) through an organic law for each region, over a minimum transition period of 10 years, or up to about 2032.

During the transition, the Regional Government shall be a Regional Commissioin composed of the current governors and mayors of the regions exercising both executive and legislative functions. During that period, it is up to the State (i.e. central or federal government) to determine each region’s competence, capacity and resources to become a federal state and the nature and scope of the decentralization and devolution.

Which means that many regions may have to wait about 15 years to reap the benefits of a federal state, if any. And, hopefully, because all the pitfalls and complexities of the shift are acknowledged by the PDP-Laban proposal, while still going all out on that slippery slope that could ruin our democracy. And when experts say that the problem of “ imperial Manila” can be solved by ordinary legislation like amending the Local Government Code of 1991.

Since the Article on Transitory Provisions of the PDP-Laban draft is still to be written, we will not really know the details of the transition until then. But a “strong” president and a more centralized system is clearly a critical factor in the transition to 2032.. The question is: what happens to a Constitution suited to the requirements of President Duterte and what happens to us, if he dies before his time. He will be 87 by 2032.

All this looks like a future that is dependent on the roll of a dice. To date there are more questions than answers in the proposals of the Duterte Administration.

All the above are largely outside the radar screen of our people. We have a problem in our hands.

We are told that an ignorant people can never remain a free people because democracy cannot survive for long with civic ignorance. And if we do not do anything about it and prefer to live with our frustrations about who is accountable for things that go wrong, someone will eventually come and say, I will solve all your problems, if you give me total power. And we will give it to him. And that’s how democracy dies.[2]

The fact is we have so far failed in human development not because of the Constitution, but because we have not fully implemented it, especially its provisions on social justice and human rights and on local autonomy. The Constitution is not the problem, it is part of the solution.

But how can the Constitution be properly implemented or even debated if there is pervasive ignorance of it? About 73% of our people admit to not knowing anything about the Constitution.[3] The civic education of our people is a responsibility of government. And a government fails in that duty when it tells the people to trust President Duterte with total powers and engages in partisan political propaganda rather than a truthful account of our history and the content of the Constitution.

(C) THE CHALLENGE WE FACE

The challenge to civil society, the church, the media and the government people who care, is to fill this gap on public education. If we don’t fill the gap with an intelligent and comprehensive education campaign, including a possible dialogue with the president, the people may be misled into supporting a misguided, even a self-serving, overhaul of the Constitution.

I am reminded of that paraprosdokian: “I would like to die peacefully in my sleep like my father, not screaming and yelling like the passengers in his car.” Maybe it is time for all of us to make our voices heard, though not exactly in the same way.

Why and how should a dialogue be sought with the President?

First, lets be clear about our assumptions.

  1. The assumption of this paper is the position of the farmers I work with that President Duterte’s heart is genuinely for the poor and he is sincere on being the bearer of change. But sincerity is not a substitute for correctness. He must also be correct on how to fulfill that vision. But he is at least an “enigma” with the contradictions that all of us have, but more intensified for his own reasons. He shows some signs of what mental health experts call “Narcissistic Personality Disorder” or NPD and of paranoia which exaggerates threats to himself that is manifested in streaks of vindictiveness. But the issue about him is not “mental illness” but of “dangerousness”, especially if given total powers.
  2. I believe that there is a statesman in every politician and it is up to us to find it in whatever way we can. As long as there is a window of rationality, however small the opening, it is worth the effort to try.
  3. Democracy is about dialogue and compromise. There is very little space in the room for purists.. But we all have a right to be heard.
  4. We want him to know that we are willing to work with him on the goal of a new social order using the lens of social justice and peace-making and want to discuss alternatives on how it can be done without resorting to a revolutionary government (which may be turbulent and divisive under any circumstances) or a major overhaul of the Constitution, and especially not with the PDP-Laban version which is a shameless betrayal of the EDSA legacy.
  5. Bringing the President down with people power is not a good idea. He is still a beacon of hope to many of the poor and we must heed that sentiment. He is also a duly elected constitutional President and we should respect it, regardless of the survey ratings, as long as he abides by his oath of allegiance to it. If he does not, we have a fight in our hands for our freedoms. We have fought five of the last 6 presidents on issues of principle and have won all al them.[4] A Pulitzer awardee reminds: “the most common way that people lose their power is when they think that they don’t have any.”[5]

In closing, in the turmoil and confusion of the moment, allow me to paraphrase Albert Camus when he received the Nobel Prize that, regardless of the consequences, “we must put ourselves at the service not of those who make history, but of those who suffer it.

Thank you and good day

[1] The Dangerous Case of Donald Trump, 2017

[2]

[3] Pulse Asia survey of July 2017

[4] Marcos (on dictatorship), Ramos (on Pirma), Estrada (on Concord), Arroyo (on Sigaw ng Bayan,) Pinoy Aquino (on Hacienda Luisita)

[5] Alice Walker

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