Atty. Neri Javier Colmenares
(transcript of speech)[1]
“Cha Cha Forum of peoples organizations, priests, religious sector and NGOs”
St. John Vianey Hall, San Sebastian Cathedral
Bacolod City, Negros Occidental
March 16, 2018
Introduction
Maayong hapon sa inyo. I am glad to be back here at the Cathedral, having frequented this place when I was the Visayas Chairman of the Student Catholic Action during my student days. I hope my critique of the current chacha could help enlighten us on the move to shift to federalism, especially since I am a probinsyano and not a part of what Pres. Duterte calls the “imperial Manila”.
No Constitution is immutable as constitutional reforms are always needed to address the genuine and developing needs of the people. However, efforts at amending the Philippine Constitution have always been attended by the imposition of self-serving political agenda, such as lifting of term limits, the dilution of people’s rights, and further opening up the country to neoliberal economics by completely eliminating “protectionist” provisions in the Constitution. While constitutional reforms are important, charter change must be intended “for the better” and not “for the worse”. The current moves at charter change is the “worst cha-cha” ever.
To strengthen the justification for charter change, the presidential form of government has been blamed as the root of the country’s poverty and underdevelopment. Initial charter change attempts proposed the installation of a parliamentary form of government, usually pushed by the leaders of the House of Representatives, whose chances of becoming president are nil under a direct vote from the electorate. The current charter change effort aims to install a federal system which was recently resurrected by Pres. Rodrigo Duterte who sought to get electoral support from the provinces by espousing a system that disperses the concentration of public funds from “imperial Manila” to the periphery.
Contrary to what the federalist advocates discuss in the alleged consultations with the people, however, the ongoing moves to amend the Constitution by the Duterte administration are not limited to merely proposing a shift to federalism, but are mainly aimed at (i) further eroding people’s rights, (ii) granting formidable powers to Pres. Rodrigo Duterte, and the (iii) further institutionalization of the anti-people and ineffective neoliberal economic policies. Additionally, politicians also inserted (iv) self-serving provisions to secure more benefits and more political power.
While the form of government may have an impact on the country’s development, the main threat to the people’s interest has always been the further institutionalization of neoliberal economics as well as dismantling whatever human rights remain enshrined in the Constitution.There are three pending proposals for charter change [Cha-Cha hereafter for brevity] These are the (1) PDP-Laban Proposal which is basically more of a shift to Parliamentary-Federal form of government and (2) Resolution of Both Houses No. 8 (RBH 8) filed in the House of Representatives on August 2, 2016 which calls for Presidential-Federal system.
The latest proposal is the (3) Draft Constitution of the Federal Republic of the Philippines (Parliamentary-Federal) containing the four sub-committee reports of the Committee on Constitutional Amendments of the House of Representatives. The Committee sponsored the Concurrent Resolution No. 9 convening Congress as a Constituent Assembly [Con Ass hereafter for brevity] was approved by the House of Representatives on January 16, 2018. Since the Committee sponsored Concurrent Resolution No. 9 claiming to have consolidated all the draft proposals in the Resolution as reflected in its sub committee reports, this proposal will be called the Concurrent Resolution No. 9 proposal [the CR 9 proposal for brevity].
This draft supposedly consolidated the proposals under RBH 8 and the PDP Laban Draft Constitution. Once the Con Ass is convened, however, it could still tackle RBH 8 and the PDP Laban proposals or may even come up with new provisions not contained by any of these proposals because the constituent assembly cannot be bound by a congressional act or resolution[2].
In this speech, I will posit that this is the worst and most dangerous charter change attempt ever as it centralizes powers to a repressive Duterte administration and contains self serving provisions never before proposed in the previous charter change efforts.
The current charter change embodies in the three proposals the following anti-people provisions that:
- Centralizes dictatorial powers in Pres. Duterte
- Constitutionalizes the self serving agenda of politicians
- Attacks human rights and social justice policies
- Dismantles the protectionist provisions in the current Constitution and exacerbate poverty and underdevelopment
The first part will discuss the provisions to prove the assertion that the Duterte Cha Cha is aimed at granting him dictatorial powers. This part will also explain the implications of the formidable powers given to Pres. Duterte by these provisions.
The second part will discuss the provisions proving that blatant self serving provisions were inserted in the latest Cha Cha, including brief discussion on why these are considered self serving provisions intended merely for the benefit of politicians and rent seekers.
The third part will discuss the provisions which directly attacks human rights including economic, social and cultural rights. The current Cha Cha dismantles the social justice provisions in the 1987 Constitution used by peoples organizations in challenging anti-people policies and actions of government.
The fourth part will discuss the provisions dismantling the protectionist economic provisions even if these have not even been fully implemented and has been followed in the breach since 1987. It will also discuss not just its economic implications but also its impact on the people, the country’s sovereignty and security.
The last part will forward the conclusion that that as long as the current exploitative and repressive system is maintained (such as the state of landlessness due to the absence of genuine agrarian reform, contractualization, the prevalence of government corruption and abuse, political dynasties, and political and economic domination of the Philippines by transnational corporations and powerful countries), the poverty and underdevelopment that Cha Cha aims to address will persist under any form of government, whether presidential or parliamentary and federal or unitary
While the paper will not lengthily discuss Pres. Duterte’s federalism proposal, it does not belittle the significance of the impact of this form of government on the people. It has, however, left it to other scholars to deepen the research on the federal form of government and its implications on the people.
It is proposed, however, that even while debates on the merits or demerits of federalism may be conducted, the main frame of the discourse must be on the impact on the people of the four anti-people provisions enumerated above. Whether one supports Federalism or not, we must oppose this chacha because of the insertion of these anti people provision.
The basis for the analysis that this Cha cha contains anti people provisions are:
I. Centralizes formidable and repressive powers in Pres. Duterte
The Resolution of Both Houses No. 8 and the Concurrent Resolution No. 9 Proposals are extremely dangerous pieces of legislation both in terms of procedure and content. Together with the PDP Laban proposal, they confer formidable and repressive powers on Pres. Duterte such as abolishing Congress and granting Pres. Duterte legislative powers, terminating the terms of all members of the current constitutional commissions, overhauling the judiciary from the Court of Appeals and Sandiganbayan down to the Regional Trial Courts while terminating thousands of government employees and officials, including the lowering of the retirement age of all judges and justices. 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.
They also have provisions which allow Pres. Duterte to further pack Parliament by appointing members of his cabinet to the legislature as well granting him a novel Presidential Oversight Powers on the entire government including the judiciary, legislature and independent constitutional bodies.
a. Abolishing Congress and Granting Pres. Duterte the Power to make laws
Section 6, Article XVIII of the Transitory Provision of Resolution of Both House No. 8 (RBH 8) grants Pres. Duterte dictatorial powers through the abolition of Congress[3] and the exercise of both executive and legislative powers:
Section 6 “Upon ratification of this Constitution, the present Congress shall be dissolved and the incumbent President shall exercise legislative powers until the first Federal Congress is convened
This is a constitutional power grab no different from the grant of legislative powers to Pres. Ferdinand Marcos who also abolished Congress when he imposed martial law. Pres. Duterte, who is intolerant of dissent, has been publicly espousing repressive measures as a means to solve the country’s problems. Giving him the power to make draconian measures will only worsen the country’s human rights situation and facilitate the implementation of neo liberal economic policies detrimental to the country’s development.
The current move to propose amendments to the Constitution has become a very dangerous “indecent proposal” when it calls for the abolition of Congress while granting Pres. Rodrigo Duterte the power to issue laws and presidential decrees.
b. Control of the Independent Constitutional Commission
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 XVIII Section 12 of RBH 8 demands that the term of office of ALL incumbent members of Constitutional Commissions be reduced to one year, unless “sooner removed”:
“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.”
Rarely does a President have the opportunity to appoint all commissioners of all the independent commissions. If approved, the new Constitution will grant Pres. Duterte the power to appoint all fifty-seven (57)[4] Chairpersons and Commissioners of the Commissions that oversees our elections, audits all government transactions and decides on the suspension and removal of government employees. He will become a very powerful president indeed.
c. Cabinet members to be appointed to the Interim Parliament
The Draft Constitution under CR 9 on the other hand provides that:[5]
“The members of the Interim Parliament shall be the incumbent Members of the Senate and the House of Representatives and by appointment of the President, members of the Cabinet with Portfolio”
This will pack the Interim Parliament with more Duterte supporters through the appointment of his non-elected cabinet members to the Parliament. In parliamentary systems around the world, the cabinet members are appointed by the President/Prime Minister from the parliament, but in this Cha-cha, the President appoints Cabinet members to the parliament. This is no different from the martial law Interim Batasang Pambansa composed of the super majority KBL members and cabinet members Pres. Ferdinand Marcos appointed to the legislature. Pres. Duterte will practically have an overwhelming control of the Interim Parliament packed by his super-majority and cabinet members.
d. Strong presidential oversight powers never given to any President
Pres. Duterte is given an unusual potent oversight power over all branches of government, a power never before seen in the Philippine Constitution (and in other governments). The Committee Draft Constitution[6] provides that:
“The powers of the President shall include xxx oversight power over all branches of government (legislative, executive and judiciary), constitutional bodies, independent bodies, departments, agencies and offices of the government.”
This power is not lodged in Pres. Duterte under the 1987 Constitution which does not allow an oversight power exercised by the President over the judiciary and the legislature. All legislative systems around the world have congressional and parliamentary oversight over the execution or implementation of the laws passed by the legislature. There is no such set up anywhere in the world where one person, the President, is given the oversight power, not just over the legislative, but also the judiciary and independent constitutional bodies. This CR 9 proposal is probably the first Parliamentary system in the world which the President oversights the parliament.
The President cannot be allowed to summon to Malacanang the Chief Justice, or the Ombudsman or even a Senator to investigate them as part of his oversight function. This power to intimidate will weaken the independence of other branches of government and make Pres. Duterte very powerful over those institutions that are supposed to check and balance the executive.
e. Control of the judiciary to escape accountability.
The judiciary will be littered by Pres. Duterte’s appointees because of the provision under Committee’s Draft Constitution[7] which will lower the retirement age of justices and judges from the current seventy (70) years old to sixty-five (65) years old to wit (see Sub Committee Report no. 2).
This means that many of the justices and judges who will be retiring in 2021 or 2022 or beyond will be forced to retire once this Cha Cha is ratified in 2019. This will give Pres. Duterte the opportunity to appoint all the new justices and judges to replace them.
Worse, under Article VIII, Section 12 of Constitution of Resolution of Both Houses No. 8, the retirement age of the appointees of Pres. Duterte will be raised to seventy-five (75) years old. While this Cha Cha will cut the tenure of incumbent judges and justices it increases the retirement age of Pres. Duterte’s appointees:
Section 12. Members of the Supreme Court, justices of the Regional Court of Appeals, and the Sandiganbayan and judges of lower courts shall hold office during good behavior until they reach the age of seventy-five (75) years of age x x x “
The entire judiciary will be littered with the appointees of Pres. Duterte long after his term ends in 2022. This practically increases the control of Pres. Duterte over the judiciary while at the same time makes it difficult to file cases against him and extract accountability after he loses his immunity from criminal prosecution in 2022.
f. Courtesy resignation demanded on all career employees
RBH 8 not only imposes a government revamp under Article XVIII but also demands courtesy resignations from CESO or career officers when it assured that the provisions on pensions and benefits will also apply “to career officers whose resignation, tendered in line with the existing policy, had been accepted.”
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