Charter Change under Pres. Rodrigo Duterte and Speaker Gloria Arroyo
A Paper by Atty. Neri Javier Colmenares
DRAFT (December 21, 2018)
Introduction: Worst ChaCha Ever
The current charter change embodied in Resolution of Both Houses No. 15 is, in reality, nothing more than efforts of self-interested politicians to amend the Constitution to perpetuate themselves in power and at the same time further open up the country to rapacious transnational corporations and worsen poverty in the Philippines. Additionally, it deletes and dilutes social justice and human rights provisions while proposing a hybrid federal system which could wreak political and economic havoc in the country.
Worse, there is a twist in RBH 15 that gives it a chance to be approved, even by the previously non-supportive Senate. Months ago, many were lulled into thinking that the moves to amend the 1987 Constitution is dead, until December 11 2018, when RBH 15 (mainly authored by Speaker Gloria Arroyo) was swiftly approved by the House of Representatives.
The railroading of RBH 15 is the reason why we cannot be complacent with regards ChaCha even if some senators have proclaimed that “ChaCha is dead on arrival.” This Arroyo ChaCha is different because it contains provisions meant to entice the entire Senate into approving it.
While RBH 15 professes to being about federalism, it does not actually prescribe a federal system but mainly focuses on provisions that Speaker Arroyo pushed during her three ChaCha attempts when she was President, namely: term extension through cancellation of election, elimination of term limits, and deleting provisions aimed at protecting the economy from transnational corporations and foreign control. Speaker Arroyo and her congressmen then made ChaCha more palatable to politicians by deleting the prohibition against political dynasties which is currently contained in the 1987 Constitution.
Speaker Arroyo, who has long-espoused deleting the provisions restricting foreign ownership of land and other natural resources, has finally succeeded in passing her proposals through RBH 15. This ChaCha will not only constitutionalize self-serving provisions but also take away our last constitutional defenses against countries like China from gobbling up our lands and natural resources. This attempt to force us to dance the ChaCha is serious and cannot be hastily dismissed.
RBH 15 enticing to Senators: The Need to Monitor the Senate
RBH 15 is a trap to entice all Senators, including those who initially opposed it, to approve Charter Change. The Senators who previously opposed ChaCha did so because of two reasons. First, because most of the ChaCha proposals asserted that both the Senate and the House vote jointly, and second, because these proposals practically diminish the power of the Senate by turning it into a regional forum of senators elected by region. One ChaCha proposal even abolished the Senate completely.
What RBH 15 has done is eliminate these obstacles to senatorial support, as it has deviously retained the same powerful Senate under the 1987 Constitution, and has agreed to separate voting by the Senators. RBH 15 also added icing to the cake it is serving the Senators by eliminating term limits, deleting the constitutional ban on political dynasties and opening up the possibility of term extension by cancelling the 2019 elections. All these moves aim to make RBH 15 irresistible to some senators. To cap the trap, RBH 15 does not contain any substantial provisions on federalism, making the Senators less wary of a sudden shift to a federal structure.
Never has ChaCha been so near to approval than now, and it is wrong for us to assume that pro-ChaCha forces will not exploit this once-in-a-lifetime window of opportunity to change the Constitution. These are the reasons why we cannot be complacent. We cannot dismiss this as something that will not pass in the Senate, because this is a different ChaCha from those the body had previously opposed.
We need to monitor any ChaCha movement in the Senate during the period of January 14 to February 12 2019. If there is a move to tackle Cha Cha during this period then we need to actively oppose this in the Senate. The truth is, if it manages to get Senate approval it will be difficult to battle ChaCha in the plebiscite — the resources of the administration of Pres. Rodrigo Duterte have been used to campaign for ChaCha (whatever proposal that might be) since 2016. Public officials down to the lowest municipal councilors will predictably support this, as it will mean staying in power until 2022. The current repressive political conditions will also undoubtedly make it difficult to campaign against ChaCha before the plebiscite.
Constitutional Amendments Should Improve, Not Worsen Lives
The supposed reason of Pres. Rodrigo Duterte and pro-ChaCha groups in amending the Constitution was their assertion that problems such as poverty were caused by the Constitution, because public funds are “centralized in Imperial Manila” while provinces are deprived of funds. Yet all the proposals, especially RBH 15, show that the real motive of pushing for ChaCha is to insert self-serving provisions and delete progressive provisions in the Constitution. This includes removing the economic provisions intended to protect the Filipino people from the onslaught of transnational corporations and countries such as China, whose interest is to further control our economy and resources.
This ChaCha is not about development and the people. It’s about vested interest to benefit Pres. Rodrigo Duterte, Speaker Gloria Arroyo and their allies. Essentially, we should stand against this ChaCha because:
1. This ChaCha is self-serving and pro-trapo. It contains self-serving provisions for politicians in government who will benefit from taking out the Vice-President from the line of succession should the Presidency become vacant, preserving political dynasties, lifting term limits, and opening up the possibility of cancelling the 2019 elections.
2. This ChaCha is anti-Filipino and pro-foreigner, and as such will worsen poverty. It further opens up the country to exploitation by transnational corporations and other countries, in line with the liberalization policy of the tandem of Pres. Rodrigo Duterte and Speaker Gloria Arroyo.
3. This ChaCha is anti-poor and anti-human rights. It deletes and dilutes social justice and human rights provisions.
Additionally, this ChaCha’s unwieldy hybrid between the federal and unitary forms of government could wreak political and economic havoc to the country. It must be actively opposed.
Is There Time For ChaCha?
The tendency of many is to think that getting ChaCha to move at this point is an impossibility. But as we’ve seen with the way RBH 15 was moved swiftly in the House of Representatives, there’s always a way for our politicians to make things happen in their favor. Note too that one of the most enticing provision in RBH 15 is a provision that cancels the 2019 elections in order to encourage politicians — from Senators down to the lowest municipal councilors — to rush the approval of ChaCha before the May 2019 elections are held.
Article XIII Section 3 of RBH 15 provides that:
“The first national and local elections under this Constitution to elect the President, Vice President, senators, representatives, and local officials, shall be on the second Monday of May 2022.“
This means that should this ChaCha be ratified in a plebiscite before May 2019, then the 2019 elections will be cancelled because the new Constitution states that the first election should be in 2022. Is there time to do this given that May 2019 is but five months away? It can be done should the Senate approve RBH 15 before Congress breaks on February 12 2019, as the following schedule shows:
Jan. 14 – Feb. 12 2019 : Senate holds hearings and approves RBH 15
Feb. 13 – April 14 2019 : A minimum of 60 days to campaign for or against ChaCha
April 15 – May 12 2019 : The plebiscite can be held anytime before the election
May 13 2019 election : Cancelled if ChaCha is approved in the plebiscite
The plebiscite will not be automated, and it is easy for COMELEC to print paper ballots because it will only contain one question asking voters whether they approve the proposed Constitution. As an example of the amount of time COMELEC needs to print ballots, for the 2017 barangay elections it only needed 52 days (from August 9 to September 30 2017). COMELEC can print the plebiscite ballots cheaper and faster because unlike the barangay election ballots, the plebiscite ballots do not contain the names of candidates but just one simple question answerable by “Yes” or “No.” In this case, the COMELEC has nearly three months to print the ballots before the May 13 2019 elections.
We are not concluding that the Senate will approve RBH 15 — we are saying that the Senate can approve it, and there is enough time to push through with it. Considering that the Senate’s previous disagreement with ChaCha has been resolved, and the fact of a plausible timetable for its implementation, we need to shift our attention to the Senate.
The hope is that the Senators will push through with the 2019 elections and not be enticed by the promised benefits of RBH 15. If the Senate approves RBH 15 it will be difficult for the people to win against the Duterte-Arroyo tandem during the plebiscite, considering their resources and their power to intimidate and repress those who stand against ChaCha.
A Major Procedural Defect in RBH 15: No “fourth mode” in Amending the 1987 Constitution
The 1987 Constitution provides for a Constituent Assembly composed of both Houses to approve any proposed amendment to the Constitution. The approval by the House of Representatives of RBH 15 is unconstitutional because the Constituent Assembly cannot be convened unless both Houses approve a resolution convening such assembly. The Senate has never approved a resolution to convene a Constituent Assembly, and cannot therefore tackle, much less accept, proposals from a House which pretends to be a Constituent Assembly. Even if RBH 15 was transmitted to the Senate it was passed by the House of Representatives acting as an ordinary legislature, and not as a Constituent Assembly.
The Constitution provides for three modes to amend the Constitution. One, through Congress acting as a Constituent Assembly; two, a Constitutional Convention; and three, a People’s Initiative. There is no fourth mode to amend the Constitution, and as such there is a procedural defect in the passage of RBH 15.
The theory of Speaker Gloria Arroyo that proposals to amend the Constitution may be done in the same manner as in approving an ordinary bill is not only absurd but has no constitutional basis. In fact, nowhere in the 1987 Constitution does it say that Congress can approve Charter Change proposals without convening a joint session. The spirit and intent of the 1987 Constitution, as admitted by its drafters, is to implement the very provision in the 1935 Constitution which provides that Congress, if it aims to propose amendments to the Constitution, must convene in joint session but voting separately. RBH 15 was approved only by the House of Representatives, and not in a joint session with the Senate. This violates the Constitution, and as such RBH 15 should be treated by the Senate as not much more but a scrap of paper.
I. RBH 15 Perpetuates the Self-Serving Agenda of the Duterte-Arroyo Tandem
How does this ChaCha serve the agenda of the Duterte-Arroyo tandem and their allies? Through constitutional amendments that ensure the continued dominance of dynasties, as well as the Duterte administration.
First, it takes out the Vice-President as the constitutional successor to Pres. Duterte and assigns a dangerously vague provision that could lead to conflict
When people got wind of RBH 15 stating that the successor to Pres. Duterte, in case of his death, removal, or incapacity, is not the elected Vice-President but the Senate President, many opposed this as a self-serving attempt to ensure that Pres. Duterte’s successor is someone from among his trusted allies or families. Whether or not one voted for Vice President Leni Robredo is not the issue here — the fact is, she is the duly elected Vice President and taking her out of the line of succession does not augur well for a peaceful transition should there be a vacancy in the Office of the President.
Speaker Gloria Arroyo promised to reinstate VP Robredo in RBH 15, and no one thought she would renege on that public commitment. But it turns out that this trust in Speaker Arroyo was indeed misplaced, because she treacherously reneged on that commitment.
Article VI Section 8 of the 1987 Constitution clearly states that the Vice-President succeeds in case the Presidency becomes vacant:
Art. VI Section 8. In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.
Instead of following this provision as she promised, Speaker Arroyo provided something else under Article XVII, Section 4 of RBH 15:
“Sec. 4 In case a vacancy arises by reason of removal, resignation, permanent incapacity, or death of the incumbent President, the incumbent Vice-President shall act as President until a President shall have been chosen and qualified”
This provision is a recipe for civil war. Instead of following the will of the Filipino voters by installing Vice President Robredo as the successor-president, RBH 15 merely installs her as an “acting” President. Why make the Vice President Robredo an acting President and not the successor President, was not explained at all by Gloria Arroyo. Why go through a temporary president when the new Constitution could have shortened the uncertainty of a power vacuum by appointing the incumbent Vice President as the new President, just like in all countries around the world with Vice Presidents? After all, even RBH 15 in its Article IX, Section 8 on the Executive Branch also followed the 1987 Constitution, making the regular Vice President succeed in case of vacancy in the office of the regular President. Why a different rule in relation to Vice President Robredo under the Transitory Provision in Article XVII?
The reason is obvious: The Duterte-Arroyo tandem is afraid that a new President they cannot control could prosecute many of them for their criminal accountability during the current regime. They think it safe if the new President is a close ally of Pres. Duterte, someone like Speaker Arroyo, for example.
This is also a recipe for conflict because it is not clear who will choose the “real successor President” and replace acting President Leni Robredo. Is it the Duterte Cabinet who “chooses” the next President? The Duterte Family? Or the Congress who will “choose” the successor President? The legitimacy of whoever will arrogate that power unto themselves will surely be challenged, and this uncertainty could lead to chaos and intense political violence that will further divide the nation.
Gloria Arroyo could have followed the 1987 Constitution and allowed the duly proclaimed Vice President to take over as successor President. Instead, the Duterte-Arroyo tandem are willing to put the Filipino people and the country at risk of political violence and chaos in order to save their skins and continue their hold to power.
The second way for Duterte-Arroyo to perpetuate their self-serving interests through RBH 15 is through the deletion of the term restrictions that are in the 1987 Constitution. The term limits of all elective public officials [except the President and Vice-President] provided under Article VI of the 1987 Constitution were abolished by Article VIII, Sections 4 and 7 of RBH 15 by simply deleting their term restrictions:
Section 4. The Members of the House of Representatives shall be elected for a term of [DELETED “three”] FOUR years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.
[DELETED: “No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected”.]
Section 7. The members of the Senate shall be elected for a term of [DELETED “six”] FOUR years and shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. [DELETED “No Senator shall serve for more than two consecutive terms”]. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected. [emphasis supplied]
Article VIII of RBH 15 also amended the existing terms of all elective public officials [except the President and Vice-President] to four years.
Strangely, while “voluntary renunciation shall not be considered as an interruption of term” for senators, the rushed and badly drafted RBH 15 does not provide for the same provision under its Section 4 for members of the House of Representatives. This is absurd because if there are no term restrictions, then it does not actually matter whether a renunciation of office is considered a full term or not, since there is no longer any limit to the term of senators.
The third way in which the Duterte-Arroyo tandem and their allies will ensure that they can stay in power, is through RBH 15’s deletion of the constitutional prohibition on political dynasties, as well as other general principles in Article II of the 1987 Constitution. Article II Section 25 of RBH 15 simply deleted the anti-dynasty provision under Article II, Section 26 of the 1987 Constitution:
Section 26. The State shall guarantee equal access to opportunities for public service, [DELETED “and prohibit political dynasties as may be defined by law”.]
While other ChaCha proposals simply retained the 1987 Constitutional ban on political dynasties, RBH 15 unabashedly, deleted the provision. With the provision against political dynasties out of the way, coupled with the elimination of term limits, one family can control entire districts and provinces without even the need of fielding the wife, son or daughter to replace their termed-out husband or father. The wife, son or daughter of course, will run in another position in what Dean Ron Mendoza termed as the “fat” political dynasty.
II. RBH 15 Opens Up the Country’s Resources To Transnational Corporations
Speaker Gloria Arroyo and her congressmen arrogates unto Congress the power to amend constitutional policy restricting foreign participation in the exploitation of our natural resources and ownership of public utilities, land, and education.
It deletes the requirement that only Filipinos can explore and utilize our natural resources under Article XIV, Section 2 of RBH 15:
“Sec. 2 x x x The exploration, development, and utilization of natural resources (including the conservation, protection and enhancement of the environment) shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements [DELETE with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens] (insert “UNDER SUCH TERMS AND CONDITIONS AS MAY BE PROVIDED BY LAW”).
The reason why the 1987 Constitution did not allow 100% foreign-owned corporations to explore and use our natural resources is that it wants to protect Filipinos from foreigners who will deplete our resources and deprive the next generation of Filipinos of our much needed resources for development. Worse, these corporations will not be too keen on protecting our environment considering that they can just pack up and leave once the forests are gone, the mines are exhausted, and the rivers are polluted.
The fact that this may be a joint-venture or production sharing arrangement with the Philippine government does not give Filipinos comfort considering the corruption and pro-foreign track record of the government. An example is the joint-exploration conducted by the Philippine government then headed by Gloria Arroyo with China in 2005-2008 under the Joint Marine Seismic Undertaking (JMSU). This supposed “joint exploration” practically allowed China to explore the West Philippine Sea and even uncontested Philippine waters, in exchange for Chinese loans for projects such as the corruption-ridden NBN-ZTE deal. The Philippines did not get any benefit or gain from the sell out disguised as a “joint” exploration, but China did.
What is more disturbing is RBH 15’s deletion of the provision on the National Economy and Patrimony which requires the President to report every such contract or agreement entered into by the Philippine government with other countries.
[DELETED The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution.]
This ChaCha has practically deleted these Constitutional provisions intended to protect and preserve our natural resources and environment from the onslaught of transnational corporations such as foreign mining firms.
It also amends Article XII Section 3 of the 1987 Constitution by opening up lands of public domain to foreigners and transnational corporations under Article XIV Sec. 3 of RBH 15.
This ChaCha has practically opened up our lands of public domain to aliens, foreign mining companies, and transnational corporations by deviously transferring to Congress as a legislature, the power to decide whether or not to open up these lands to aliens.
“Section 3. Lands of the public domain are classified into agricultural, RECLAIMED LANDS, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. UNLESS OTHERWISE PROVIDED BY LAW, Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant.
[DELETED: Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform], the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor”.
Speaker Gloria Arroyo and the House of Representatives did not delete the restrictions under the 1987 Constitution but deviously inserted a phrase that transferred unto themselves the power to decide whether to amend this constitutional restriction or not.
Note that in all previous charter change attempts, Congress has tried to open up our lands, natural resources and lands of public domain to foreign ownership. This move always generated massive opposition from the people. This time around, in order to defang the opposition, Speaker Arroyo and her congressmen did not directly delete these constitutional restrictions to foreign ownership, but granted Congress the power to do so.
Based on Congress’ track record of espousing privatization, deregulation and liberalization, it is a foregone conclusion that once ChaCha is approved, one of the first laws Congress will pass is precisely to open up lands of public domain to aliens.
RBH 15 also gives Congress the power to chart constitutional policy, making it the center of lobby money as transnational corporations will gravitate to Congress to lobby for the passage of “laws” that will open up the economy to their particular industries or companies. Money will flow into Congress once this ChaCha is approved.
Lastly, inserting the phrase “Unless otherwise provided by law” in a constitutional restriction practically allows Congress to “otherwise” the Constitution whenever it wants to. This will lead to ChaCha every year, or worse, ChaCha several times a year as lobbyists would flock to congress for the passage of particular amendments to the Constitution that will benefit their companies. This “ChaCha all-year-round” is detrimental to our interest. The country’s confused and conflicting constitutional economic policies will only worsen the exploitation of multi-national and transnational corporations of our country and our people.
The introduction of “Reclaimed Lands” as a new type of land of public domain is ominous as well. Currently there are reclamation projects in the Manila Bay area (from Bulacan to Cavite) as well as in other provinces that have resulted in the demolition of urban poor communities, loss of livelihood for fisherfolk and their families, and the destruction of the marine environment and bio diversity in these reclaimed areas. The insertion of “reclaimed land” in the new Constitution is a foreboding sign that massive reclamation projects are about to take place in many areas in the country.
RBH 15 also deleted the qualification that Congress should take “into account the requirements of conservation, ecology, and development, and agrarian reform” in determining the size of lands of the public domain which may be acquired, held, developed, or leased to private corporations. The deletion of this important qualification simply means that important factors such as ecology and agrarian reform, need not be considered when Congress hands out lands of public domain to private corporations and mining firms.
RBH 15 also amends Article XII Section 7 of the 1987 Constitution and opens up ownership of our lands to aliens and transnational corporations under Article XIV Sec. 7:
Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain UNLESS OTHERWISE PROVIDED BY LAW.
Speaker Gloria Arroyo and her congressmen have practically opened up ownership of our lands to foreigners by arrogating unto Congress the power to decide whether or not to delete this constitutional restriction. In all ChaCha proposals, including the author’s interpellation during plenary debates in Congress, ChaCha authors admitted that they intend to open up land ownership to foreigners because such restrictions “discourage foreign investments.” It is clear that once this ChaCha is approved, one of the very first laws passed by Congress will be to amend the Constitution and allow foreign ownership of lands. The absurd part is, during the debates, the ChaCha proponents did not submit any study to substantiate their claim that foreigners refuse to invest in the Philippines because they cannot own lands. Other countries such as China and Vietnam do not allow foreigners to own lands in their country, but investors flock to both countries regardless.
What Are The Impacts of Opening Up Our Land and Resources to Foreign Ownership?
1. Opening lands to foreign ownership will drive up the price of lands, considering that many transnational corporations find our land cheap. While big land owners may find this palatable, this will actually deprive poor Filipinos of the opportunity to own land as the next generation could no longer afford to compete with Chinese or Japanese and other foreign corporations in buying land.
2. It will also endanger food security for Filipinos and practically destroy any chance of genuine agrarian reform in the country. Landowners, instead of distributing their lands through land reform, will definitely find ways to sell their lands to transnational corporations. Considering that agrarian reform has been deleted in the Constitution by RBH 15, the promise of giving lands to landless farmers will now become an impossible dream.
3. Additionally, allowing foreigners or countries such as China or Russia or the US, ownership of lands is a threat to our sovereignty and national security. China has managed to occupy Philippine waters in the West Philippine Sea, now it can occupy and even OWN lands right inside Philippine territory. The Constitution specifically prohibits Congress from passing a law that allows foreign ownership of our lands. Under RBH 15, Congress as a constituent assembly amends the 1987 Constitution, to grant themselves the power to pass a law that will allow, what was before then prohibited by the Constitution—foreigners acquiring lands in the Philippines.
RBH 15 Opens Up Our Public Utilities and Education to Foreign Control
Amending Article XII, Section 11 of the 1987 Constitution by opening up our public utilities to foreign control under Article IV Section 7 of RBH 15:
Section 7. UNLESS OTHERWISE PROVIDED BY LAW, no franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years.
The 1987 Constitution prohibits Congress from passing a law that allows foreigners or 100% foreign-owned corporations from operating public utilities like electricity service, water utilities or telecommunication facilities because public utilities are important industries that cannot be left to the control of foreign corporations whose main interest is surely not for the Filipino people. In fact, public utilities should not be privatized in the first place, because public utilities are for public service, and private corporations invest for profit not public service. Privatization, coupled with corruption, are the reasons why electricity, water and other public utilities are expensive in the Philippines because of the profit motivation by private companies. Handing it over to foreign private corporations beholden to their foreign shareholders will worsen our problems.
Additionally, allowing foreigners or countries such as China to fully control our public utilities such as telecommunication, electricity and water supply for 50 or even 100 years endangers Philippine security and sovereignty. If China were to gain control of Meralco or other GENCOs and DUs in the Philippines, its control over our energy needs could endanger our positioning in the West Philippine Sea dispute. RBH 15 amends the 1987 Constitution so that Congress is empowered to allow foreign control of our public utility and countermand a constitutional policy prohibiting the same.
The argument that Congress has to pass a law first before public utilities are opened up is really of no moment. Congress has been supportive of privatization when it passed EPIRA and privatized MWSS and ChaCha authors have admitted as much during plenary delibration and debates that they intend to allow foreign control of public utilities if their ChaCha is approved.
RBH 15 also allows foreign control over our educational system by deleting Article XIV Section 4 of the 1987 Constitution.
Sec. 4 x x x [DELETED Educational institutions, other than those established by religious groups and mission boards, shall be owned solely by citizens of the Philippines or corporations or associations at least sixty per centum of the capital of which is owned by such citizens. The Congress may, however, require increased Filipino equity participation in all educational institutions.]
[DELETED The control and administration of educational institutions shall be vested in citizens of the Philippines].
The 1987 Constitution does not allow foreigners or 100% foreign owned corporations (except those already established by religious groups) ownership of schools or universities. Only Filipinos, or a corporation at least 60% of whose capital is owned by Filipinos, are allowed to own schools and universities. Additionally, the Constitution does not allow foreigners control or administration of schools and educational institutions.
The 1987 Constitution specifically prohibits Congress from passing a law that allows foreigners or foreign owned corporations to control schools and universities considering that the education of our youth is important to national development and independence. Allowing foreign control our educational institutions compromises our efforts at forging a patriotic, national, people oriented and public educational system and culture.
Additionally, allowing foreigners or countries such as China to control our educational system endangers Philippine security and sovereignty as well. It will not be unreasonable to expect China to teach students in their controlled universities that the West Philippine Sea is a territory of China and not the Philippines.
RBH 15 Deletes Self-Reliant and Independent Economy
RBH 15 deleted Art. XIII Section 19 of the 1987 Constitution which provides that
“[DELETED The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos].”
This is an admission by RBH 15 that under its Federal Constitution, the economy of the Philippines may no longer be self-reliant and independent, and in fact, may no longer be controlled by Filipinos but other countries such as China, or other big countries.
III. RBH 15 Deletes and Dilutes Social Justice and Human Rights
RBH 15 attacks workers’ rights by deleting government’s obligation to afford full protection to labor, local or as an OFW, including organized union members. Article XII Section 3 of the 1987 Constitution provides that “Section 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
RBH 15 transfers it to Article II Sec. 19 and deletes a very important duty of government to “afford full protection to labor, local and overseas, organized and unorganized.” It also deleted the duty of the government to promote “FULL” employment and replaced it with a broad statement to “Pursue the economic goal of full employment” which now reads:
RBH 15, Article II Section 19. The State shall [DELETED: “afford full protection of labor, local and overseas, organized and unorganized”] PROTECT THE RIGHTS OF labor, and promote [DELETE “full”] employment OPPORTUNITIES AND PURSUE THE ECONOMIC GOAL OF FULL EMPLOYMENT.
The duty to protect labor, including our OFWs abroad, is a major duty of government. Deleting this constitutional protection will further weaken the workers defenses when their rights are violated.
RBH 15, Article II Sec. 19 also deletes very important rights such as the government’s guarantee of very important labor rights such as SECURITY OF TENURE, HUMANE CONDITIONS OF WORK, LIVING WAGE, and THE RIGHT OF LABOR TO A JUST SHARE IN THE FRUITS OF PRODUCTION.
Se. 19 “(The State) shall [DELETED guarantee] the rights of all workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. [DELETED They shall be entitled to security of tenure, humane conditions of work, and a living wage]. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers [DELETED and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace]. The State shall regulate the relations between workers and employers, [DELETED: recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns to investments, and to expansion and growth].”
RBH 15 under Article II, Sec. 19 practically decimated the rights of labor by deleting very important labor rights, to read:
Article II, Sec. 19 “WELL ESTABLISHED RIGHTS SHALL INCLUDE THE right of workers to self- organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. WORKERS SHALL ENJOY EQUITABLE TREATMENT AND FREEDOM FROM DISCRIMINATION ON MATTERS OF EMPLOYMENT TENURE, WORKING CONDITIONS, AND WAGE LEVELS. THE STATE SHALL REGULATE WORKER EMPLOYER RELATIONS WITH THE OBJECTIVES OF PROMOTING SHARED RESPONSIBILITY BETWEEN WORKERS AND EMPLOYERS.
Nowhere to be found in the above provision is the declaration that workers are “entitled to “security of tenure, humane condition of work and living wage.” It merely says that they cannot be discriminated in relation to these rights, which has entirely a different meaning. This is not the same as the “freedom from discrimination on matters of employment tenure” as RBH 15 provides. Under this interpretation, companies can still hire contractuals and terminate them at will, provided that it treats all contractuals without discrimination. In fact, the government no longer expressly guarantees these labor rights under RBH 15 as it merely states that these rights are “well-established.”
Similarly, a reading of RBH 15 provides that humane conditions of employment is no longer a right. First, it reduces the concept of “living wage” to a mere “wage level” — a play with words that is a departure from such right under the 1987 Constitution. Second, it deletes “the right of labor to a just share in the fruits of its production,” exposing RBH 15’s refusal to give workers a “just share” in the fruits of their production. Third, it deletes the following section:
[DELETED Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. ]
With regards social justice provisions, RBH 15 deleted many provisions from Article XII, Section 1 of the 1987 Constitution:
Section 1. The goals of the national economy are [ DELETED: a more equitable distribution of opportunities, income, and wealth]; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.
[DELETED : The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets.
[DELETED : However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop.
[DELETED : Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.]
Important social justice concepts and rights such as industrialization and agrarian reform is the twin-economic strategy that would lead the Philippines to development. It’s not the discredited “foreign investment” driven economic strategy which the Philippines has been employing for decades now, but which has failed to bring the promised development. All Philippine Presidents, including Pres. Duterte, have been catering to this belief that foreign investment is the main engine of growth in the Philippines, even if this has not succeeded for decades.
While foreign investment need not be prohibited, the main engine of growth in the Philippines is national industrialization where government provides all out support to local business and industries to produce what the Philippines need. To give a simple illustration, we sell sugar to other countries cheap who then process and make chocolates out of it and sell it back to us at a high price. In industrialization, we build the factories that will process our sugar and make chocolates out of it. This simple example illustrates why we will never develop if we keep selling our raw materials cheap while importing expensive finished products.
Previous ChaCha proposals, and this current ChaCha, have chosen the old road of further opening up the country to foreign investments which never worked before and will not work now or in the future. In the process it abandoned our one chance to develop through agrarian reform and industrialization—which countries such as China, Taiwan and even South Korea employed and led to their economic growth.
RBH 15 has also deleted the provision requiring the Philippine government to “protect Filipino enterprises from unfair foreign competition and trade practices.” This proves yet again that RBH 15 is pro-foreign business and ultimately, anti-Filipino.
RBH 15 deleted the provision that states that the economy be about “a more equitable distribution of opportunities, income, and wealth,” which reveals that what they believe is this: making income and wealth equitable is bad for big business, the rich, and the powerful. This ChaCha is not only pro-foreigner and anti-Filipino. It is also pro-rich and anti-poor.
Finally, RBH 15 deleted agrarian reform under Section 21, Article XIII of the 1987 Constitution, instead merely providing for “rural development and equitable land ownership.” The Supreme Court has already ruled that “equitable land ownership” such as distribution of stocks to farmers is not land reform. What big landlords in Congress therefore did was to enshrine it in their Federal Constitution in lieu of “agrarian reform.” This simply means that the state of landlessness of the farmers in the Philippines will continue and condemn millions of our farmers to poverty.
RBH 15 Attacks Human Rights Provisions
Human Rights provisions under the 1987 Constitution were also attacked by the Duterte-Arroyo ChaCha. This is exemplified by the following.
1. Expanding the grounds for declaration of martial law by including “lawless violence” as one more ground for its imposition.
2. Detailing a “Bill of Obligation” which could be interpreted to qualify respect for a person’s rights if he or she also fulfilled his or her obligations.
3. RBH 15 deleted the human rights provision in the 1987 Constitution which states that “The State values the dignity of every human person and guarantees full respect for human rights” (Section 11). During the interpellation No. 3 was reinstated when Makabayan Congressmen pushed for its retention. This however shows the RBH 15 authors’ disdain of human rights and their acquiescence to Pres. Duterte’s disregard for human rights.
4. Right to suffrage—any attempt to cancel elections for term extension is a violation of the right to suffrage of the people. RBH 15 did not also explain why it added a new qualification for candidates for the President, Vice President, and members of Congress—degree holder. RBH 15 seems to say that graduates like Speaker Arroyo, Pres. Duterte, and many congressmen involved in the pork barrel scam are better at their jobs than non-graduates like Crispin Beltran. How they arrived at this conclusion is still a mystery, but surely many will disagree with such a conclusion.
RBH 15 is Pretend Federalism
This ChaCha is an unwieldy mixture of a federal and unitary form of government.
It is premature for those who opposed federalism to heave a sigh of relief, when RBH 15 does not expressly provide for federalism. What RBH 15 provides for is in fact worse than federalism — a vague mixture of a federal and unitary form of government in the entire country. This dangerous mixture will lead to chaos, and worse, an internecine dispute among government bodies.
RBH 15 pretends to be for federalism but only contains half-a-step of the federal system. It is worse than the other ChaCha proposals, because RBH 15’s “half-witted” federalism opens us up to dangerous complications.
Article II Section 1 of RBH 15 does not exactly provide for federalism, as it merely states that “THE STATE SHALL RECOGNIZE REGIONAL AUTONOMY TOWARDS FEDERALISM.”
The more dangerously confusing part which could lead to utter chaos in the country is contained in Article XII, Section 12 which provides one of the most incomprehensibly vague and dangerously confusing badly crafted provision:
Sec. 12 A Federal State may be created in any part of the country upon a petition addressed to Congress by any contiguous, compact, and adjacent province, highly urbanized cities and component cities, and cities and municipalities in metropolitan areas, x x x In exceptional cases, a province may be established as a Federal State based on area, population, necessity, geographical, distance, environmental, economic or fiscal viability and other special attributes. Federal States shall include the Bangsamoro Autonomous Region as created under Republic Act 11054 and as ratified in the plebiscite therein.”
This means that the Philippines will have a mix of Federal States in some regions and provinces and unitary LGUs in other regions and provinces. Disagreements on how the powers will be shared and divided between the national government and the LGU and the Federal States will lead to constant war of attrition between government agencies and States/LGUs. Will this mean that the national government shall have more powers over LGUs but less power over Federal States? How much funds/resources/taxes can the national government provide for or extract from an LGU as compared to a Federal State ?
Secondly, mixed powers can lead to conflicts between adjoining provinces or region where one is a federal state while the other is not, especially with the “exceptional” province establishing itself as a Federal State in the middle of a region which is not. Conflicting powers on taxation, and personal laws would sow disunity, inefficiency and waste of resources. Even the status of the Bangsamoro Region was further complicated by the provision which says that the “the Federal States shall include the Bangsamoro Autonomous Region” which is neither here nor there.
RBH 15’s attempt to provide a semblance of federalism to appease the federalists will only worsen the situation in the country.
Granting Pres. Duterte formidable powers to replace the government with his appointees
a) Cutting the terms of members of the COMELEC, Civil Service Commission and the Commission on Audit
Under RBH 8, the independent constitutional commissions will undergo a major change in jurisdiction and composition—including the cutting of the terms of office of all its Commissioners. Article XVII Section 12 of RBH 15 also grants Pres. Duterte the power to cut the terms of the COMELEC, CSC and COA:
Article XVIII Section 12 The incumbent members of the Civil Service Commission, the Commission on Elections and the COA shall continue in office for one year after the ratification of this Constitution, unless sooner removed for cause or become incapacitated or appointed to a new term thereunder.
This simply means that even if the terms of Comelec, COA or CSC commissioners will end in 2021 or 2022, they will have vacate office within one year once the new Constitution is approved. Pres. Duterte will have the opportunity to appoint all the members of the Commission that oversees our elections, audits all government transactions and the commission that decides who is removed or suspended from government service.
b) Massive termination of government employees due to reorganization with Pres. Duterte having a hand in the appointment of their replacements
“Section 14 Career civil service employees other than the affected personnel of the Senate and the House of Representatives who are separated from the service x x x as a result of the reorganization following its ratification shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of retirement. x x x This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted.”
From the above provisions, any government employee, especially those who may not be subservient to Pres. Duterte’s administration, may be terminated from service as part of the “reorganization”. The assurance that they will get “retirement benefits” is of no moment because it will be difficult for these government employees to find another job. Even career officers or CESOs will be asked to tender their courtesy resignation “in line with the existing policy”. Officials whose courtesy resignation were “accepted” will be forced to retire from government service paving the way for Pres. Duterte and his subordinates to appoint new officials in their stead.
A Question: Is Pres. Rodrigo Duterte Really Serious About Federalism?
Was Federalism just a ploy so Pres. Duterte could campaign for President long before the 2016 campaign period? When then Mayor Duterte roamed the country preaching that the centralization of funds in “imperial Manila” and the central government caused the impoverishment of many Filipinos in the provinces, many provincianos were probably convinced that this was indeed the problem and decided to vote for him.
When he became President, people expected him to fulfil his promise and decentralized public funds from the national government and the National Capital Region, for the regions and the provinces through his budget. After all, if Pres. Duterte provides in his proposed budget that only 10% of the national budget should go to the national government and NCR while 90 % shall go to the regions, Congress will still approve his budget. In fact, the problem of decentralizing funds to the regions does not require a shift to federalism but can be achieved through the national budget.
A study of Pres. Duterte’s budget, however, showed a shocking revelation: he outdid all other “imperial presidents” in centralizing funds in NCR and the national government to the detriment of the regions.
2016 2018 2019
NCR P 445 Billion P 817 Billion P 834 Billion
Share in the total (15 %) (22 %) (22 %)
national budget
VISAYAS P 298 B P 412 B P 400 B
Share (10 %) (11 %)
MINDANAO P 396 B P 608 B P 585 B
Share (13 %) (16 %)
Pres. Duterte in fact further centralized funds in the national government and “imperial Manila.” In 2016, a total of P 445 Billion or 15% of the total budget was given to NCR while only 10% of the national budget went to Visayas and 13% went to Mindanao. There is, indeed, too little funds dispersed in the regions while the lone region of NCR got the lion’s share in 2016.
However, in 2018 which is the first budget officially prepared by Pres. Duterte, his National Expenditure Program and the resulting General Appropriations Act further centralized a staggering P817 Billion to NCR for an increase of NCR’s share of the national budget to an unbelievable 22%. No President has ever centralized 22% of the national budget in NCR except Pres. Duterte. Meanwhile the share of Visayas was a dismal 11% and Mindanao a mere 16% of the national budget.
Secondly, after all his avowed promises to favour the provinces over Metro Manila or the national agencies, Pres. Duterte increased the amount allotted in the budget of NCR but decreased the budget for Visayas and Mindanao in 2019! Pres. Duterte’s NEP actually increased NCR’s budget from Php 817 Billion in 2018 to Php 834 Billion. The Visayas budget decreased from Php 412 Billion in 2018 to Php 400 Billion in 2019, while that of Mindanao had a larger cut from Php 608 Billion in 2018 to a mere Php 585 Billion in the 2019 GAA.
In conclusion, despite all the talk about decentralizing funds through Federalism, Pres. Duterte seems to just be throwing us another joke, as proven by how he has continued to centralize funds in the NCR. It is expected that he would still be happy with RBH 15 even if it only pays lip service to federalism, because it contains his government’s main agenda: economic liberalization and the continued perpetuation of the Duterte-Arroyo tandem’s power.
Conclusion: RBH 15 is a Dangerous Piece of Legislation
RBH 15 is a very dangerous piece of legislation because:
1. This Cha Cha is self-serving and pro-trapo. It contains self-serving provisions for the politicians in government who will benefit from taking out the Vice-President from the line of succession should the Presidency become vacant, preserving political dynasty, lifting term limits, and opening up the possibility of cancelling the 2019 elections.
2. This ChaCha is anti-Filipino and pro-foreigner, and will only worsen poverty. It further opens up the country to exploitation by transnational corporations and other countries, in line with the liberalization policy of the tandem of Pres. Rodrigo Duterte and Speaker Gloria Arroyo. This opening up of the economy, resources, services, and even education, to foreign ownership and control has always been part of ALL of the previous ChaCha attempts of Arroyo when she was President. The people have stood consistently against these provisions.
3. This Cha Cha is anti-poor and anti- human rights. It deletes and dilutes social justice and human rights provisions.
4. This ChaCha’s unwieldy hybrid between federal and unitary form of government could wreak political and economic havoc to the country.
5. RBH 15 is unconstitutional because it degraded proposals to amend the Constitution into a “fourth” mode, making it no different from if Congress was merely amending an ordinary law.
6. RBH 15 grants Congress the power to amend Constitutional policies and eliminate economic provisions that protect Filipinos from foreigners and other countries — basically resulting in a dangerously unpredictable and unstable Constitution depending on the whim of Congressmen and Senators and the amount of lobby money pouring into Congress.
7. It surrenders the national economy to foreigners and transnational corporations, deletes provisions on agrarian reform, industrialization, security of tenure for workers, rights of the urban poor and other social, economic and cultural rights. It further institutionalizes liberalization, privatization and deregulation which has caused the severe impoverishment of the Filipino people.
In the end this ChaCha is not really about the development of the country and freeing the people from poverty. It is just another attempt to insert self-serving provisions in the Constitution and make anti-people constitutional amendments to favour Pres. Rodrigo Duterte, Speaker Gloria Arroyo, powerful political clans, big business, and transnational corporations. RBH 15 must be actively opposed.
Despite the support of a rabble of politicians, the Filipino people defeated previous anti-people ChaCha attempts. In fact, the ChaCha under Pres. Duterte has been soundly defeated by the people until Gloria Arroyo railroaded RBH 15. The Filipino people will defeat this Cha Cha once again should it gain momentum in the Senate, because this ChaCha is anti-Filipino, anti-poor, and is the worst ChaCha ever. ###
