By Charmaine A. Tadalan and Gillian M. Cortez
AFTER ATTEMPTS by the past administrations to overhaul the 1987 Constitution, is the government’s bid, on President Rodrigo R. Duterte’s watch, toward federalism likely to succeed this time?
Charter change has been a recurring episode since the Marcos era, with a total of six constitutions adapted by the country since its independence in 1898, according to the state gazette.
For much of the Commonwealth until the postwar era, the 1935 Constitution was the sacred law of the land, revived after the end of Japanese occupation and the Pacific War.
But by Ferdinand E. Marcos’s second term at the ominous dawn of the 1970s, the idea of charting a new law that was supposed to keep up with the times began to take shape, if only to be severely compromised by bribery charges at the Constitutional Convention (Con-Con) then, and, at last, by the outcome of a Marcos-tailored constitution ratified at the start of martial rule with the nation held at gunpoint. In hindsight, it was this episode that spawned the persistent campaign since for constitutional revision in the post-Marcos era.
After Mr. Marcos was toppled by the 1986 People Power Revolution, his successor Corazon C. Aquino sought to restore the spirit but not the actual body of the 1935 Constitution by dismantling remnants of the Marcos dictatorship and his legal framework, the 1973 Constitution. She issued Proclamation No. 3, practically declaring a revolutionary government and providing a provisional “freedom” constitution, and formed a constitutional commission in the manner followed now by Mr. Duterte, to draft a new charter that was ratified in a plebiscite the next year.
But in less than a generation’s time, there have been attempts to revise the 1987 charter by the administrations of Presidents Fidel V. Ramos, Joseph E. Estrada and Gloria M. Arroyo. Only now, in Mr. Duterte’s time, is the call to revise the Constitution’s nationalistic provisions, particularly on foreign equity, gaining traction.
Past charter-change campaigns before Mr. Duterte were either tainted by political motives akin to Mr. Marcos’s designs for power or opposed by concerted protest action precisely on that suspicion. The Senate, too, had opposed these charter-change moves, as political science professor Gene L. Pilapil of the University of the Philippines pointed out in an interview.
Back then, the charter-change campaign, especially on Ms. Arroyo’s watch, advocated a unicameral legislature and was therefore aimed at the Senate.
“Institutionally, the fate of these charter change campaigns was determined by the opposition of the Senate who stood to be the most negatively affected in the shift,” Mr. Pilapil said. “But at the same time, (the chamber was) in a position to be the one to vote on whether or not there will be a call for a constituent assembly or a constitutional convention.
Fast-forward to the present: a constitutional change is underway, this time not simply to introduce amendments.
The shift to a federal system was a key advocacy in Mr. Duterte’s presidential campaign in 2016. Six months into the presidency, he issued an executive order organizing the Consultative Committee (Con-Com) to Review the 1987 Constitution, but it wasn’t until January this year that he completed the appointments to this body. As of this reporting in June, the review body had until July to furnish the President a draft constitution ahead of his third State of the Nation Address (SONA).
“This is the first time in the history of this country, where a presidential candidate… already espoused federalism,” former Senate President Aquilino “Nene” L. Pimentel, Jr., who is part of the Con-Com, told BusinessWorld in an interview.
Fast-forward to the present: a constitutional change is underway, this time not simply to introduce amendments.
In the controversial Con-Con of the early 1970s where he also took part, Mr. Pimentel opposed Mr. Marcos’s designs for power and was subsequently detained, together with other delegates opposed as well to the Marcos dictatorship. In the present political environment, he appears to be more open to the possibilities of genuine political reform via constitutional amendments. And like Mr. Duterte, Mr. Pimentel is also a leading advocate of federalism.
“So, if you become a federal state under our proposal, then every state determines the kinds of investments which go to their area and the incentives they will give without seeking the permission of a centralized government agency like NEDA (National Economic and Development Authority),” Mr. Pimentel said.
Con-Com member Arthur N. Aguilar, chairman of the subcommittee on economic affairs, shares Mr. Pimentel’s regard of the work ahead for this body. “Right now, It’s centralized in NCR, CALABARZON, and Central Luzon. That’s about 60% and all regions are in fact languishing, so (the federal system will) empower the regions to plan and have a greater degree in (the economy),” he said.
Mr. Aguilar also cited the recently enacted Ease of Doing Business Act of 2018 as a “precondition” to strengthening an inclusive economy. “When you bring down the permits and licenses to the regions, then it must be easier for businesses to grow from there, and then the regions would have, hopefully, greater share of the tax revenues, that they can plan their own infrastructure (program) and invite investments to generate employment and livelihood,” he said.
Adapting a federal system is believed to devolve government’s power and spread it out across the federated regions. The proposed charter being finalized by the Con-Com intends to grant regions autonomy over economic development, tax policies and foreign and trade relations, among others.
This is the first time in the history of this country, where a presidential candidate… already espoused federalism.” — Former Senate President Aquilino “Nene” L. Pimentel, Jr. told BusinessWorld
These reforms should take effect at least three years after a federal system is in place. But some regions, like Davao and Bicol, are seen to develop faster than the others, according to Mr. Aguilar.
University of the Philippines Professor Antonio Gabriel M. La Viña also echoed in this statement, saying “We have so many successful local governments compared to years ago. Many local governments can take care of themselves (And) many local governments would rather not deal with Manila anymore and that gives them an opportunity for all of them in a regional level. There are so many local governments that have expanded already.”
The UP Professor said that the spread in government power will be convenient for regions. “In (a) archipelagic country it’s always better to disperse. The nearer the regional center is to the local, the better,” he explained.
Unlike the 1987 constitution, Mr. La Viña stressed “Federalism is about creating entity in the region that will now exercise same powers as the national in that same level, and it’s better there. They don’t have to go to manila. They don’t have to go to manila (because) it stops there in the regional level. You’ve been giving the regional level the power to do that.”
For its part, Commissioner Amabelle C. Asuncion of the Philippine Competition Commission (PCC) has advised the committee to ensure consistency in the regulation of competition across the country. “This will preclude (federated regions) from passing their own competition law or forming their own competition commission, so it will be centralized, nationalized,” she said.
The effect of Federalism on business is still up for debate since it will depend on what type of Federal government the Philippines will choose to shift to. Chamber of Commerce of the Philippine Islands President Jose Luis U. Yulo, Jr. said, “It must be further noted that each country has their own versions of Federalism and not all are necessarily successful great countries.Therefore, the economic impact of federalism will greatly depend on the details of the devolution of powers and how these powers are managed.”
“People are beginning to see beyond the big promises that federalizing the form/structure of government is not the correct ‘means,’ and in fact will be counter-productive…” — Christian S. Monsod, member of the 1986 Constitutional Commission
As promising as federalism sounds, however, Mr. Pilapil as well as lawyer Christian S. Monsod, a member of the 1986 Constitutional Commission, still note the public skepticism toward yet another charter-change drive.
A June 2018 Pulse Asia Survey reported 67% of Filipinos are not in favor of amending the 1987 Constitution either at the present (30%) or in the future (37%) while a mere 18% supports Charter change. The same survey showed 62% of the population opposed to federalism now (28%) or in any other time (34%), with only 28% in favor and the rest, undecided.
“People are beginning to see beyond the big promises that federalizing the form/structure of government is not the correct ‘means,’ and in fact will be counter-productive, to address the most urgent problems of mass poverty and gross inequalities, where we are the laggards in our part of the world,” Mr. Monsod said.
He pointed out, further, that the move toward federalism is not even included in the Philippine Development Plan 2017-2022 and Ambisyon Natin 2040, the medium and long-term plans for development. In fact, the plan has about 300 targets, based on strategies to address the issue of underdevelopment of outlying regions.
Mr. Monsod also sees the federalism drive as heading toward “constitutional authoritarianism” — and this is where the latest enterprise on charter change is still haunted by the ghost of Marcos.
Like Mr. Monsod, Mr. Pilapil expects the Senate to handle the present charter-change enterprise with scrutiny. “The Senate may not agree to a joint vote. Even with a separate vote, (convening Congress into a constituent assembly) may not get the ¾ vote of at least 18 senators to approve (the) new constitution (expected to be proposed by the Con-Com).”
“In which case, the charter change project will die a quiet death. And we will have wasted precious time in addressing the real problems of mass poverty and gross inequalities,” Mr. Monsod said.
Atty. Ramon A. Pedrosa, Chairman Emeritus of the CCPI, said Federalism “is a unitive system. The desideratum of granting hithereto national power to subsidiary entities will divide the country.”
The CCPI chairman added that giving regions their own power could possibly lead to weakening of the peso and rising of inflation. “Unless firm monetary and fiscal policy is reserved at the center, the new-found independent economic policies at the local federated level may create a situation where the buying power of the peso may deteriorate into runaway inflation,” Mr. Pedrosa said.
Mr. Yulo added that the Federated regions possibly passing different laws that govern business and economy could make it “become more difficult to do business within our own country.”
Mr. Pilapil said the goal of a federal system to end the dictates of “Imperial Manila” could be better achieved by amending the present Local Government Code.
“(The) problem is, Congress has not even done a single review of the Local Government Code as a first step to amending it, since (it has been) 26 years after (its enactment) — a mandatory review that should be done at least every five years under Section 521 of the code,” Mr. Pilapil said.
Mr. Monsod agreed with that suggestion, noting as well that what the Philippines need now is not a new constitution, but rather the full implementation of the 1987 Constitution and its provisions on social justice, human rights, and local autonomy.