Philippines: A critique of Duterte’s ‘Cha-cha’ and federalism
By Sonny Melencio September 9, 2018 — Links International Journal of Socialist Renewal — The draft charter, also called the “Bayanihan Constitution,” presented by the Constitutional Committee headed by former Supreme Court Justice Reynato Puno to President Rodrigo Duterte, is neither imbued with Bayanihan spirit in its drafting or its implementation of federalism. Bayanihan spirit means the entire community in action supporting the interests of all its members. The Bayanihan Constitution is not at all like this. It is not the result of consultation among the people, or the various sectors and communities that encompass the nation. It is the creation of a 22-person committee, all appointed by President Duterte himself. There has not been a single consultation where people have been asked about their views and proposals for a Charter change (Cha-cha). In fact, a copy of the Constitutional Committee’s (Concom) charter was consciously withheld from the public until it was officially handed to President Duterte. And when it was finally released to the public, those criticizing the charter were deemed as insolent, if not stupid, by one of the Concom members because critics had not read voluminous materials on federalism like him. The draft charter has yet to be transformed into a bill to be approved by a three-quarters vote of the bicameral Congress sitting as a Constituent Assembly (Con-Ass). The process is currently stalled as the Senate, outnumbered by a nearly 300-member Lower House, is insisting on separate voting rather than the joint voting that the House wants. Once both houses approve a consolidated version, it has to be submitted to a plebiscite for people’s ratification or rejection within 60 to 90 days. According to some, this will be a time for public discussion and debates that could help people decide their votes. But two to three months is not enough. And why are we rushing this process, when we need to have more information about what this Cha-cha and federalism are all about? Cuba is also in the process of changing its constitution. But there the process includes popular consultation and discussion of the draft charter at the grassroots, in the communities, factories, schools and offices where everyone is encouraged to participate, discuss, and even propose amendments to the constitution before it is brought to a national vote. Cuba’s National Assembly approved the draft constitution on July 22, 2018 and the popular consultation that began on August 13 will conclude on November 15. Yes, this is also three months of discussion at the grassroots, but it includes proposed amendments to the constitution. The amended constitution will be put to a referendum on February 24, 2019. There is also nothing bayanihan in the way federalism will be constituted in the country. Right now, it is an imposition coming from the top as there has been no popular consultation with the masses about the type of federalism they want to build. One of the main principles of federalism is that it shares the power of government between a federal center and the duly-constituted federated states or regions of a country. The federated states are guaranteed certain powers by the constitution. In a unitary government, like we have right now, the regions have power but it is mostly delegated by the central government and most laws and legal processes are passed and undertaken at the centralized level. Now, there is federalism and federalism. While the principles of federalism, as defined above, are the same, federalism may differ from country to country. The degree of powers appropriated by the federal government and the powers arrogated to the federated regions are not the same in each country with a federal system. Let’s see how the Concom draft charter plans to implement federalism in our country.
Federalism does not end povertyBefore this, let’s first tackle the propaganda that federalism is the solution to the country’s poverty, especially to the regional underdevelopment brought about by the control of the country’s revenues and resources by “Imperial Manila”. A simplistic argument being circulated by supporters of federalism is that all advanced nations prosper due to their federal system, like the United States, Canada, Germany and Australia. The truth is, not all federal countries are prosperous. There are poor and underdeveloped economies that have not progressed even though they have been under a federal system for a long time. They are poorer than us, that’s why we do not send Overseas Filipino Workers (OFWs) to these countries. Some of them have been in the news as war-torn countries preyed on by warring warlord leaders and gangs that control differing regions. This has been the fate of long-term federal states such as Nigeria, Somalia and Sudan. Clearly, it is not the form of government that matters most in a country’s progress and development. There are a number of factors that matter substantially in the social and economic development of the country — such as whether the country’s productive assets, resources and politics are monopolized and controlled by only a few families.
Federalism as merger of sustainable statesFederalism is also a product of a country’s history. Most of the federal governments in advanced economies started as separate states with sustainable economies that federated or confederated with each other. The United States was formed by 13 colonies that declared independence from Great Britain on July 4, 1776. Federalism was enshrined in the US constitution in 1787, a constitution which is still in effect today. Canada’s federalism also came about through the unification of the former colonies of the Province of Canada, New Brunswick and Nova Scotia in 1867. In Germany, a tradition of strong regional governments preceded the founding of the German Empire in 1871. In Australia, six British colonies sought independence from Great Britain under a Commonwealth federal government in 1901. Closer to home, the federal republic of Malaysia was a product of the unification and confederation of 13 states including the former Malaya, North Borneo, Sarawak, and Singapore. Singapore seceded in 1965 and formed its own unitary government.
Duterte’s federalismHence, the federalism that is being advanced by the Duterte administration and his allies in government can only be viewed as Duterte’s federalism. It bears the objectives, design, structures and processes that are being pushed for and promoted by President Duterte and his ruling political allies.
Duterte’s federalism does not ensure regional developmentThe draft charter fails to deliver on the hype that federalism will dethrone ‘Imperial Manila’ and ensure regional development by giving the regions exclusive power to levy and collect taxes for their own programs and benefits. First, under the charter, the federal government will continue to impose the main taxes, such as income tax, value-added tax, excise tax, and customs duties. These are the four taxes that account for a great bulk of the government’s revenue collection. The 18 federated regions that will be formed will levy and collect the following taxes: property tax, estate tax, donors tax, documentary stamp tax, professional tax, franchise tax, games and amusement tax, environmental, pollution and similar taxes, road users tax, vehicle registration fees, transport franchise fees, and other local taxes. According to the 2016 BIR Annual Report, of the total revenue collection, 58.67% came from income taxes, 10.38% from excise taxes and 21.03% from VAT – for a total of 90.08%. It means that the remaining 9.92% type of taxes are those that will be exclusively collected by the federated regions under a federal set up. Under the promised federalism, the bulk of the revenues will still be in the hands of the national government. Only the rich regions — such as the National Capital Region, Region III (Central Luzon), and Region IV-A (Calabarzon) — will benefit from the additional local taxes due to the relatively vast amount of collections they will make compared to other regions. In all the other regions, the taxes collected will still be negligible compared to those collected by the central federal government. Second, the Local Government Code of 1991, passed under the 1987 Constitution, already states that 40% of the total revenue collection of the government should go to the regions. The Concom draft charter provides for 50% of the total revenue collection for the regions. This 10% increase is still a measly rise. Knowing that the majority of the regions will not get much from their own collections and from the national tax allocations, an “equalization fund” of 3% of the national budget is provided for in the Concom charter. One economist said that this will not be enough even in the 2019 proposed national budget of P3.75 trillion, as 3% amounts to only P625 million a region. The recent Mandanas ruling by the Supreme Court on July 4, however, provides a larger increase of total revenues to local government units based on a “just share” in the national taxes collected by the national center. This is the Supreme Court’s reinterpretation of Sec. 6, Article X of the 1987 Constitution. The national taxes not only include the internal revenue collection but the collection on VATs, excise taxes, tariff and custom duties, and others. If the draft Concom constitution is approved, this gain of the local government units will be swept away as all laws that run counter to the constitution will have to be rescinded.
Duterte’s federalism will wipe out the gains of the LGUsIt is not only the Mandanas ruling that will have to go. The entire constitutional article pertaining to local government units (LGUs), which forms the basis of the Local Government Code of 1991, will be replaced by an article on federated regions and the autonomous federated regions of Bangsamoro and the Cordilleras (Art. XI of the Concom draft constitution). Hence, there is no mention of provinces, cities, municipalities, and barangays as territorial and political subdivisions of government. In the new proposed charter, there is no express mandate for Congress to enact a Local Government Code, no express power for LGUs to create its own sources of revenues and levy taxes, and no mention of term limit for elective local officials. In an instant, all the gains of the LGUs under the Local Government Code of 1991 will be wiped out if the Concom charter is passed. It is most probable that the local government units will be reorganized to give way to the expansion of the bureaucracy in the federated regions with its large assemblies. The first to go will probably be the barangays (from SKs to councils), to be replaced by one-person-representative as proposed in some bills pending at Congress.
Duterte’s federalism is not likely to abolish political dynastyThe Concom charter introduces what it calls a ‘self-executory provision’ on the abolition of political dynasties in the country. The framers said it was a response to the 1987 constitutional provision that could not implement a ban on dynasties, as it had to wait for an implementing law to be passed by Congress. The 8th Congress came to power in 1987 after the ratification of the 1987 constitution. Since then, nine other congresses, including the present one, were convened but no law banning political dynasties was passed. The reason? Congress itself was dominated and controlled by representatives coming from political dynasties. Article V, Section 18 of the Concom charter defines political dynasty as composed of family members up to the second degree of consanguinity or affinity (parents, children, siblings, grandparents, grandchildren, aunts, uncles, nephews, nieces, and half-siblings) maintaining or capable of maintaining political control through (1) succession of posts or (2) simultaneously running for or holding elective positions. “Succession of posts” means that no person related to an incumbent elective official within the second degree of consanguinity or affinity can run for the same position in the immediately following election. “Simultaneous running” is prohibited to a political clan if one or more members up to the second degree of consanguinity or affinity are running simultaneously or are holding elective positions in more than one national and one regional or local position. The latter only means that, yes, they can run simultaneously if one member of the clan is running for national office, such as the presidency and vice-presidency, and the other member is running for regional office (such as in the new federal Senate) or a local office. What has changed? Political clans have done this before, such as when GMA’s son Dato Arroyo ran and became congressperson for the second district of Camarines Sur in 2007, while GMA was the incumbent president. This set up, with the political clans maintaining political control in various posts of our government, is still allowed by the draft charter. It also remains to be seen if the anti-dynasty provision of the draft charter will be intact once it passes through a Con-Ass. It most probably will be scrapped like what happened to the provision banning political dynasty in the original Bangsamoro Organic Law (BOL). According to the Philippine Center for Investigative Journalism (PCIJ), if by some miracle the ban on political dynasties passes approval, it would only prohibit the succession and simultaneous holding of public office by members of the same family, up to the second degree of affinity or consanguinity. How about the constant “changing of the guards” among only about 200 families that have been lording over the country’s 81 provinces for decades? The PCIJ noted another catch in the draft charter once it is approved in a plebiscite in 2019. The synchronized elections for all regional and federal positions in May 2022 will be on a zero-sum game basis. It’s like a clean slate, meaning, old and new politicians from the political dynasties could all run for a four-year term, and even get reelected for another four. And because all the same clan members could all run and win — as they most likely would — they could grab 10 more years of uninterrupted reign in their turfs during the 10-year transition period to federalism. The control of political dynasties at the regional level is even more detrimental to the poor masses as these trapos (traditional politicians) now have the power to enact laws pertaining to socio-economic development planning, economic zones, land use and housing, and others, in their regions. There will be a “race to the bottom” among the federated regions in terms of wages, benefits and labor standards for workers to attract investments; more demolition of poor communities and eviction of poor people without relocation; land grabbing and non-implementation of land distribution to agrarian beneficiaries; and the likes. Finally, it is also stated in the draft charter that the Federal Congress may, by law, provide for additional prohibitions. If this is allowed, the Federal Congress may, by law, weaken the terms of prohibition. In any case, the ban on political dynasty remains a long shot when it goes through deliberation and approval of a dynasty-ridden Congress.
Duterte’s federalism will likely promote the political parties of its own allies and partnersDespite the draft charter’s claim of “promoting and strengthening the political parties as mechanism of citizen participation and democratic governance” (Article V on Suffrage), the parties that will benefit are still the traditional ones, the trapo parties. The charter stipulates that 60% of the 400-seats in the House of Representatives (240) will be elected by a plurality of votes in each single-member legislative electoral district while 40% (160) shall be voted on nationwide from political parties through proportional representation at a 5% threshold, and with seats allocated based on votes received. This is like the party list system today, but with their number of seats increased. While a party-based proportional representation system sounds good, the reality is that political parties have to gain registration with the Federal Commission on Elections whose members are appointed by the president with the confirmation of the Commission on Appointments. The Commission on Appointments will consist of the president of the Senate as ex-officio chairman, 12 senators and 12 members of the House (from the political parties). With this type of federal Comelec, the political parties of the marginalized sectors, much like the party lists today, will still find it hard to get through a stringent, pro-trapo registration process. It is actually made more stringent by the qualification imposed on all elective posts of being a “holder of a college degree or its equivalent”. This contradicts the so-called affirmative action for the marginalized and underrepresented sectors, many of whom do not have college degrees. The draft charter also stipulates that for three consecutive terms following the ratification of the new Constitution, one-half of the seats set aside for parties under proportional representation (20%, or 130 of 400 seats) shall be reserved for labor, peasant, urban poor, indigenous peoples, and fisherfolk groups organized under parties or coalition of parties. But after three elections, it will be a free-for-all once again for the political parties to the detriment of the poorer parties. Despite the institution of Democracy Fund, administered by the Federal Comelec, as a repository of campaign funds for all candidates in the elections, electoral donors can specify to whom or to what party they want their contributions to be given. This is not levelling the playing field as they say.
Duterte’s Cha-cha wipes out the protectionist provisions of the 1987 ConstitutionIn Article XV on National Economy and Patrimony, the draft charter maintains the 60% Filipino requirement for controlling stocks and ownership of corporations engaged in the following: • lease of lands of the public domain;
• exploration and utilization of natural resources;
• ownership of mass media;
• operation of any public utility enterprise; and
• operation of educational institutions (other than those established by religious groups and mission boards). On the other hand, the charter introduces the proverbial kicker that Congress “may, by law,” change the 60% requirement. Giving this prerogative to Congress means wiping out whatever remaining protectionist measures there are in the constitution. This is a case of “what the left hand giveth, the right hand taketh away.”
Duterte’s federalism will be imposed through a dictatorshipArticle XXII or the Transitory Provisions of the Concom draft charter is the most alarming. It imposes a dictatorship under a so-called Federal Transition Commission to be headed by the President. (While the draft charter imposes a dictatorship of a Commission, the Congress version through the Resolution of Both Houses No. 8 imposes a dictatorship of one. The latter’s Article XVIII, Section 6 of Transitory Provisions states: “Upon the 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.” If this is what is waiting for us under a Con-Ass that will pass its own version of Cha-cha, heaven forbid!) In Section 3 of Article XXII of the Transitory Provisions of the Concom charter, the President will call for an election of the president and vice-president of the Federal Transition Commission (FTC) that will lead the transition to a federal system of government. The FTC will have the following powers and duties: (1) to formulate a transition plan for the orderly shift to the federal system; (2) to execute the transition plan; promulgate the rules, regulations, orders, proclamations, and other issuances; to do all acts to implement them; and to resolve all issues and disputes that may arise therefrom; and (3) to exercise all powers necessary and proper to ensure a smooth, speedy, and successful transition. All these, and especially the third point, open up a type of powerful body, a dictatorship actually, which has all the powers necessary to carry out and implement its schemes. When the Concom framers gave a copy of the draft charter to President Duterte on July 9, the President made a big fuss about ensuring that the term of the president and the vice-president, which ends on June 30, 2022, will not be extended, and that the incumbent president should be banned from running again as president in the 2022 elections under the new federal constitution. The Concom framers came back on July 12, with the ban put in place. But can President Duterte run for the FTC? Under the draft charter, while he is prohibited from running as president in the 2022 federal elections, it does not ban him from running as president of the powerful FTC. If the FTC elections is called in 2019, or within six months after the ratification of the new constitution as stipulated in the charter, Bongbong Marcos will most likely be Duterte’s Vice-President. The most powerful figure in the FTC will be its president. The vice-president will only be a team mate of the president, meaning, whatever the president gets as votes will be the corresponding votes for the vice-president. With the scenario of Duterte running in the FTC, Leni Robredo will definitely lose the vice-presidency. Duterte has been playing this up with his recent pronouncements on Robredo’s “incompetence” and “incapacity to govern”. The FTC also comes with the power to prolong the President’s term of office until a successful transition to federalism has been achieved. The arrogation of “all powers necessary” to the President of the FTC may also mean the power to impose martial law to ensure a “smooth, speedy and successful transition to federalism.” The FTC is an 11-member commission headed by the president. The transition vice-president, the senate president, the speaker of the house, and all living past presidents will only be ex-officio members of the commission. There’s no express provision in the draft charter on what will happen to Congress, the Supreme Court and all other co-equal branches of government under FTC rule, but we can surmise that it will depend on what President Duterte or the would-be FTC president wants. Section 12 of Article XXII drops a premonition: “All officials of the government under the 1987 Constitution shall continue to hold office unless removed by reason of reorganization in accordance with the transition plan.” The fate of Congress, Cabinet and other government bodies lies in the “transition plan” as directed by the FTC or by its president. It seems all the bases are covered, so to speak, by the Duterte administration. Even after the life of the FTC, or in the elections in 2022, the Transitory Provisions does not ban President Duterte from running as long as he’s not running as president.
A host of other issuesArticle VIII, Section 18 on the Executive Department: It includes ‘lawless violence’ as basis for the suspension of the writ of habeas corpus or declaration of martial law. The 1987 allowed it only in cases of invasion or rebellion, or when public safety requires it. “Lawless violence” is a broad category and may be interpreted to mean the increase of killings, salvagings, and criminality which are already happening under the Duterte administration. Article XVI, Section 4 on Social Justice: While the provision on the agrarian reform calls for the just distribution of all agricultural lands to the landless tillers, it is again “subject to such priorities and reasonable retention limits as the Congress may prescribe.” Article X, Section 3, E. Federal Commission of Human Rights, on Constitutional Commissions: The definition of human rights violation now covers those perpetrated by “non-State actors”. Hence, it expands the areas of coverage of the Commission on Human Rights to include the investigation and filing of complaints against human rights violations committed by non-state actors. It would mean that even social movements and civil society, which are not part of the state, but protesting against the state can now be charged with human rights violations if the CHR deems it necessary. Article XVII, Section 2 (b) on Education: While the provision talks about free public education in the kindergarten, elementary, secondary, and tertiary levels, compulsory free public education only covers up to secondary level. Article IX, Sections 1-29 on Judicial Department: There will be four federal courts that will all exercise judicial power: (1) The Federal Supreme Court composed of 9 justices including a Chief Justice;
(2) The Federal Constitutional Court composed of 9 justices including a Chief Justice;
(3) The Federal Administrative Court composed of 9 justices including a Chief Justice; and
(4) The Federal Electoral Court composed of 15 justices including a Chief Justice. All in all, there will be forty-two (42) federal high court justices, an increase of 27 high court justices from the Supreme Court today. Not only is the breakup of the Supreme Court into four federal courts costly due to the increase in number of high court justices — it amounts to the weakening of powers of the judiciary, a supposedly co-equal branch of the executive and legislative branches of government. According to former associate justice Vicente Mendoza, it will result in a weaker check and balance system in the government. The cost of shifting to the federal system is also a big issue for a country suffering from crisis after crisis due to the profligacy and graft and corruption of public officials. There will be a rise in the number of bureaucrats, such as the increase to 36 senators at the federal government, the increase to 400 Lower House representatives, the additional 374 legislators from the 18 federated regions, the additional judiciary at the federal and regional levels, and others. The “bureaucratic cost” alone ranges from P72 billion as estimated by the Philippine Institute of Development Studies (PIDS) to P130 billion by the National Economic and Development Authority (NEDA). Lastly, Duterte’s Cha-cha has not even mentioned our country’s sovereign rights to the Spratly group of islands in the West Philippine Sea. This is a sign of the administration’s deference to the Chinese government’s claims to the entire sea, in exchange for loans to its Build! Build! Build! Program.