(First of two parts)
On 18 January 2019, three days before the January 21, 2019 plebiscite for the Bangsamoro Organic Law (BOL), President Rodrigo R. Duterte alluded to pursuing charter change once the BOL is ratified. If ratified, the BOL creates the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) and replaces the Autonomous Region in Muslim Mindanao (ARMM). Now that the BOL was ratified on 25 January, the path to charter change seems clear. Is it or is it not?
While the answer to the questions remain obscure, we may find some hints from the electoral acrobatics taking place right now for the 13 May 2019 midterm elections. But let us focus on the Senate race.
We focus on the Senate not because the House of Representatives is irrelevant or insignificant, but because we know from experience and the latter chamber’s political history about its membership’s propensity to gravitate towards the president-elect’s party and agenda even in cases where the incumbent president belongs to the “minority party.” The Senate, on the other hand, has significantly played the active president’s opposer or resister on critical issues including that of charter change.
With seven senators eyeing reelection (four of them allied to the President), seven former senators aiming to return to the chamber (at least three are political allies of the President or his daughter Mayor Sarah Duterte), and eight opposition contenders among 62 senatorial candidates, what are the chances of charter change gaining ground and supported in the next Philippine Congress? Will charter change be the game changer in the next Philippine Congress? Will the Senate remain anti-charter change?
First, we step back to examine the past charter change attempts and how the Senate opposed and reduced these into futile efforts of self-serving incumbents. Second, we examine how the midterm elections may impact on the power/party configuration in the Senate and, consequently, the fate of charter change in the Philippines.
CHARTER CHANGE NOT NEW
Charter change is not new, as it dates back to the Marcos regime in the early 1970s. In the post-Marcos era, as early as 1989 — barely two and a half years after the 1987 Constitution was approved in a plebiscite — calls for constitutional change gained momentum and received much media attention. The failed December 1989 coup had, in part, triggered the discussion on constitutional change.
In 1991, the House of Representatives adopted a unanimous resolution endorsing the shift to a parliamentary form of government. Had the Senate agreed to it, the shift would have been implemented in the 1992 elections.
In 1993, the House persisted and proposed a two-stage process. The first stage was to amend the Constitution in 1994 via a people’s initiative to install a unicameral assembly that would take effect on the date of its ratification in 1995. The second stage was to convene the unicameral assembly as a Constituent Assembly to draft the needed constitutional reforms including the shift to a parliamentary form of government in 1998 or before 1998. The Senate rejected the proposal.
The move to amend the Constitution was brought up again in late 1996. The People’s Initiative for Reform, Modernization and Action (PIRMA), the organization supporting charter change through a people’s initiative, was launched in December of that year. Three months later, however, the Supreme Court unanimously revoked the petition of PIRMA for a people’s initiative for lack of an enabling law.
In 1999, an amendment to the Constitution was introduced, aimed at removing restrictions on foreign ownership on land, public utilities, schools, mass media, mining firms, and advertising agencies. The Constitutional Correction for Development (Concord) was created to push for the lifting of restrictions on the foreign ownership of business. ConCord did not only fail but its mastermind was ousted from the presidency due to strong opposition from the Catholic Church.
Another attempt at a people’s initiative came in 2006. The Union of Local Authorities of the Philippines and Sigaw ng Bayan undertook a people’s initiative petition. The Supreme Court, however, ruled against its legality in November 2006. Meanwhile, major political parties in the House majority coalition created a multiparty working group to finalize the proposed amendments to the 1987 Constitution. The amendments included the shift from the presidential form of government to the parliamentary form, and from the bicameral to a unicameral one.
A month later, the House of Representatives approved House Resolution No. 167 convening Congress into a constituent assembly. The plan of the House majority coalition was to have key amendments to the Constitution approved before Congress took a Christmas recess, a plebiscite by February, and a new parliamentary government and constitution by the end of 2007.
In an attempt to hasten the process, the House approved another resolution amending its own rules. The resolution provided for the deletion of that specific section in the House Rules of the Thirteenth Congress that states: “Proposals to amend or revise the Constitution shall be by resolution which may be filed at any time by any member. The adoption of resolutions proposing amendments to, or revision of, the constitution shall follow the procedure for the enactment of bills.” The resolution was intended to bypass the three-reading procedure in each chamber of Congress that is followed for the enactment of any law.
At the same time, civil society groups and the media were closely monitoring the turn of events in the House, the Senate, and Malacañang. Public pressure on Congress and the Executive continued to build up.
As in the past, the Senate stood its ground and rejected the House’s resolution. Members did not allow themselves to be “coerced” by the 72-hour deadline set by the Speaker of the House then. Finally, on 12 December 2006, the House of Representatives voted to archive its earlier resolution of convening the Congress into a constituent assembly. Had the Senate agreed with the House of Representatives, Congress could have started to exercise its constituent powers to propose amendments to the 1987 Constitution by December 12, 2006.
Between 2007 and 2015, calls for charter change were muted or silenced, deliberately or otherwise, and temporarily tabled or shelved. Charter change, aimed at either shifting to a parliamentary form of government or amending the economic provisions in the 1987 Philippine Constitution, or shifting to a federal system, was not a priority agenda of the government. It seemed that Arroyo had “given up” her ambition to become the Prime Minister had the House succeeded in December 2006. The next President, Benigno Aquino III, on the other hand, was simply not interested in extending his term of office.
Attempts at charter change were resurrected after Duterte won the presidency in 2016. Determined to change the government into a federal system as he promised when he ran for the presidency, Duterte created the 25-member Consultative Committee (Con-Com) tasked to review the 1987 Constitution on December 7, 2016 through Executive Order No. 10 but whose work commenced more than a year later.
On 9 July 2018 the President received the draft Federal Constitution from the Consultative Committee. Former chief justice Reynato Puno, Con-Com Head, described the draft Federal Constitution during the turnover ceremony as seeking to “establish a distinct federalism in our country — a bayanihan federalism (that is) strong enough to hold together the various federated regions and establishes federated regions that are socially, economically and politically viable and sustainable.” The draft constitution also banned political dynasties and political turncoatism.
Charter change under Duterte took an ugly turn when the Speaker of the House, Gloria Macapagal-Arroyo came up with her own charter change proposal, the Resolution of Both Houses (RBH) 15. It was not the first time that Arroyo “masterminded” charter change in the country. The year 2006 witnessed three futile attempts at charter change by the Arroyo administration including the creation of the Consultative Commission to study the 1987 Constitution and propose amendments to it.
The passage of RBH 15 at the House of Representatives after three session days spent for plenary debates becomes Arroyo’s other major coup after she successfully took over the Speakership in July 2018. RBH 15 contained the House’s proposed draft constitution that would shift the country to federalism and tampered with Duterte’s Con-Com’s draft Federal Constitution by removing term limits and rules prohibiting political dynasties.
The House voted in favor of RBH 15 on Second Reading on 4 December 2018 and on Third Reading on 11 December 2018. The Senate, on the other hand, could not care less.
Attempts at charter change will surely continue after the May 19 elections. Will charter change be the game changer in the next Philippine Congress? Will the new Senate be anti-charter change?
Diana J. Mendoza, PhD, is the chair of the Department of Political Science at the Ateneo de Manila University.
(First of two parts)