Sunday, September 03, 2006

Charter Change as an Advocacy

CHA CHA as an advocacy Agenda
Institute for Popular Democracy

The most important reason for amending the constitution is that it is the best way to respond to widespread dissatisfaction with our politics. Our political system is the same as that designed by the American colonial government and Quezon seventy years ago. It is not anymore capable of responding to the needs of the Philippines of the 21st century.

We are unhappy with the caliber of our politicians. But it is not enough to say we should replace them. With few exceptions, the system continuously produces corrupt and incompetent politicians. The best way to get better politicians is to change the whole system of representation starting with electoral system.

Among the substantive proposals are reforms on: executive-legislative relations – the form of government, central-local relations, and the electoral system.


What is a Constitutional Convention (ConCon)?
A Constitutional Convention is a body established by law to frame a new Constitution or revise an existing one. It requires the direct election of the delegates by the people. How many delegates are elected will be determined by Congress. The product of a Constitutional Convention will be approved by the people through a referendum.

Why ConCon over Con-Ass?
Constitutional reform should be democratic and pro-people. The amendment process should be fair, open, transparent and participatory. Our people have become weary of politicians and their partisan interests. That is why the attempts at constitutional reform during the Ramos and Estrada terms failed. The current proposal from the House of Representatives to convene a ConAss have raised fears that the 2007 presidential elections will be canceled and incumbent officials’ terms extended (NO-EL).

What are the advantages of ConCon?
A ConCon is not bounded by the interest of the members of Congress, it is free from suspicions that amendments will be self-serving to politicians’ interest. The members of a Constitutional Convention are directly elected by the people for the sole purpose of amending or revising the Constitution. They will be more focused on the job of producing a well-crafted Constitution.

Sectors that do not presently have representation in Congress may be given the opportunity to sit in the Constitutional Convention to enable them to participate in its drafting.

When should ConCon elections be held?
ConCon delegates should be elected simultaneous with the regular 2007 elections. This way, the new administration will not be able to stop constitutional reform. The ConCon can then deliberate on amendments and get their proposals approved in a referendum simultaneous with the MAY 2007 elections. This will give sufficient time for public debate on proposed amendments. A number of transitory provisions can then be implemented as early as 2007.

But isn’t ConCon more costly than Con-Ass?
Not really. ConCon is not as costly as we are made to believe. Those against ConCon argue that it will be very costly since there will be elections of delegates, plebiscite, etc. But since the election of delegates will be simultaneous with the 2007 election, this will require no additional cost.

It is simply adding another line/space in the ballot to write the name of the voter’s chosen delegate. The same will apply to the plebiscite after 2007 election. The costs then will only be related to the actual processes of deliberating the proposed amendments.

What will happen to the more progressive provisions of the 1987 Constitution?
We are committed to defend the hard-won guarantees of political freedoms, national patrimony and sovereignty and other pro-people provisions of the 1987 Constitution. We do not believe that the possibility that we would lose the struggle to defend these provisions is enough reason for us to oppose constitutional reform altogether.

The best way to defend these provisions is from within the constitutional reform process, not outside the process. Besides, unlike Estrada’s ‘Concord’ where changing the economic provisions was the priority, the ongoing reform process is directed at the political sections of the 1987 constitution.


What is the present form of government in the Philippines?
We have a presidential system borrowed from the United States. This operates on the principle of separation of powers among executive, legislative, and judicial branches. This implies that no two powers of government shall be vested in the same person or institution and there exists a system of checks and balances between the branches.

Under this system, the popularly elected president is a single executive acting both as head of government and head of state. The president nominates the members of the Cabinet and is confirmed by the legislature. They cannot simultaneously be members of legislature.

Why should we change from a Presidential to a Parliamentary System?
In theory, the presidential form of government is a good system. In practice, there are more parliamentary than presidential democracies in the world. In thePhilippines, the history of local-central government and executive-legislative relations have created a politics of corrupt deal-making. Instead of national interest, individual and family nterests determine policy; instead of rational decision-making, laws and implementation of laws are unpredictable and subject to the uncertainties of areglo.

The president has a lot of powers, but without strong political parties has to negotiate with individuals or factions in the legislature. Because in the absence of political parties, local political leaders control votes, the president often cannot get laws and policies implemented locally.

In a parliamentary system, the chief executive is the Prime Minister elected by the members of parliament. He/she can be removed through a ‘vote of no confidence’ or at the end of the parliament’s term. Members of parliament are elected with fixed terms of office but no limits on number of terms they can be reelected. This means both prime minister and legislators stay in office only as long as they enjoy majority legislative support. There is also a ceremonial head of state who symbolizes the solidarity of the nation. In a number of countries the ‘head of state’ is also given substantial powers.

Legislative Process
The unification of the executive and legislative branches in a parliamentary system will greatly improve the legislative process. Under the presidential system, disagreements between the president and even only one of the two houses of Congress will derail the process. Most years, the Philippine Congress approves only two or three bills of national importance other than the budget.

Crisis Management
The tenure of both the president and the legislature cannot be modified (shortened or prolonged) under normal circumstances. Presidential democracies cannot respond to crises as exit options like impeachment are difficult, protracted, and impracticable. Without constitutionally mandated exit options such as ‘votes of no confidence’ in parliamentary systems, extra constitutional options such as coup attempts or mass actions are encouraged.

Political Parties
One of the biggest problems with our political system is our weak political parties. A major reason for this is our electoral system which is anchored on electing individuals in a ‘first past the post’ contest. In elections for the House of Representatives, the single member district system makes political parties even weaker because parties are dependent on individual politicians instead of balancing party and individual politician.

All parliamentary systems are based on various combinations of proportional representation where votes are for parties and single member constituencies. In the Philippines, the party list system is not only limited (20% of the House of Representatives only), only 14 (1998) and 19 (2001) out of a total of 52 seats available have been allocated because of confusion in the COMELEC and the Supreme Court on the law.

One proposal is to split membership in a unicameral parliament 50/50 between enlarged single member districts and a party list proportional representation system. This will assure continuity with the present system and at the same time push the creation of stronger, program-oriented and accountable parties.

What are the essential features of a Parliamentary Government?
1. Executive Power is exercised by the Prime Minister with the assistance of a Cabinet composed of the heads of various departments or ministries. The National Assembly chooses the Prime Minister from the elected representatives of the Parliament. Members of the Cabinet are chosen by the Prime Minister from the National Assembly.

2. The Prime Minister and members of the Cabinet do not have a fixed term of office. They are elected for a set number of years, but they can be removed from office any time should their policies and performance fail to gain the support and confidence of the National Assembly.

3. In case of deadlock between the executive and the legislature, the legislature may force the Cabinet to resign in a no-confidence vote. A new Prime Minister is then elected, and a new Cabinet that enjoys the confidence of the National Assembly shall be formed by the new Prime Minister.

4. If the Prime Minister feels he has popular support but is unjustifiably being opposed by the National Assembly, he may call on the President to dissolve the National Assembly. A midterm election will be held wherein the people will decide on whom to give their support: to the Prime Minister and his Cabinet or to the National Assembly.

What are the variations in Parliamentary Forms of Government?
1. Under a Parliamentary setup, the legislature can be unicameral (e.g., Singapore, South Korea, New Zealand, and Finland) or bicameral (e.g., Malaysia, Thailand, Australia, UK, France, and Germany).

2. Also, government may either be unitary (e.g. France, Singapore, South Korea, Thailand, United Kingdom) or federal type of state (e.g. Germany, Malaysia, Australia, and Belgium).

3. The Head of State can be a monarch or a president. The position of the monarch is ceremonial in countries like the UK, Malaysia and Thailand. In Germany and France, the presidents serve as heads of state. The President may be elected directly by an absolute majority vote of the people, by the Parliament, or by an electoral college consisting of representatives from the national legislature and state assemblies (e.g., India).

What are some of the features of parliamentarism that may address or offset the problems of presidentialism?

As both the executive and legislative powers will be fused into parliament, it will prevent gridlock and promote consensus in governance.It also has the capacity to better ensure stability and continuity in governance since there can be continuity in the party in power. Without engendering a constitutional crisis, the prime minister can be replaced in a variety of ways – by his/her party, by the formation of a new coalition, etc.

Government formation takes a short time because of the presence of a well-known shadow cabinet. Moreover, because of strong party discipline and clear lines of responsibility, passing the blame somewhere else or avoiding accountability cannot be done.


Why Federalism?
The Philippines has had long history with a centralized system of governance. As far back as the colonization of Spain, the country has been governed from Manila, the nation's capital. In the current debate for Charter Change, proponents of federalism believe that it is the answer to the age-old problems of inequitable distribution of wealth, slow pace of development in the country side, and the peace and order situation in Mindanao.

The country has enacted legislation that would bring the government closer to the people through administrative deconcentration and political devolution, most importantly the Local Government Code (LGC) of 1991. Despite the success of local governments in the implementation of the LGC, much is still to be desired in the decentralization of governance in the country.

Why should we adopt Federalism?

What our country needs is a decisive paradigm shift. A shift to a parliamentary system is only one-half of the needed structural and institutional change in our form of government. The shift to federalism will complete the institutional and structural change our current political system requires. Federalism is a form of political structure that unites independent states within a larger political framework, but still allowing each state to maintain its own political integrity.

What is a federal system of government?

A federal system involves the establishment of relatively small, coexisting political units that are geographically within the boundaries of economic interaction and territorial reach of the central government. It is a system that institutionalizes the participation of local populations and communities to pursue development according to their particular competencies, culture and natural resources operationalized through its own charter or constitution.

What distinguishes a federal system from a unitary system of government?
In a federal system, the central government is prevented from becoming all-powerful and is given only the powers it needs. State governments are established as “regional localities”, free to handle local affairs according to the political desires of their constituents. In a unitary system, almost all policies and decisions emanate from the central government.

What is the structure of a federal system in general?

A federal system consists of the federal or national government and constituent states and local governments in each state. Each state government may define with local governments, the functions and powers of the latter.

Why have some countries adopted federalism?

Some countries have adopted federalism because of the need for new forms of functional administration since some political modalities have become insufficient in coping with people’s needs and problems. Federalism brings about greater autonomy for people in far-flung regions thus letting them address their needs and problems in their own way and making available adequate resources.

Why a federal system of government in the Philippines?

The present unitary and centralized form of governance of the Philippines is a remnant of its colonial past. It continues to be used as a tool for domination and control, hence the basic issue of inequality still remains to be solved. It has become unresponsive, irrelevant, and has engendered patronage politics, underdevelopment, poverty, and unresponsive governance.

In a federal system, power shall be transferred from the central government in Manila to the regions. Contrary to fears that this will dismember the country, the federal system will foster closer dialogue and interaction between the people and regional leaders because the locus of power is physically closer and accessible to the people.
What are some of the advantages of a federal system?

In a federalist system, power is divided between the National (federal) government and the Regional (state) governments. Usually, the national government’s authority encompasses national defense, foreign affairs, immigration, currency, and postal service while the regional governments with its own constitutions takes care of basic governance. The regions are therefore vested with powers, authority, and the resources to manage and govern in order to propel their development agenda.

What are the advantages of Federal System of Government?

1. A federal republic will bring about peace and unity in ethnic, religious and cultural diversity. This is especially true in Mindanao where for generations, the Christian settlers have not found just and lasting peace with Muslim residents. The traditional policy of assimilation and subordination has failed. On the other hand, responsive federalism will lead to accommodation within the Republic and discourage secessionism.

2. Federalism will improve governance through a new division and specialization of government functions. There will be a broad devolution of power, authority, and the needed revenues and resources from the national government to the States. Local governments will be closer to the people and have greater impact on their lives.

3. Federalism will empower state and local leaders and citizens throughout the country. With policies, programs, and decisions made outside the national capital, local leaders will assume greater responsibility for leadership and service delivery. People will be more involved and will demand better performance and accountability. As a consequence, they will be more willing to pay taxes to finance government programs for their own direct benefit.

4. Federalism will hasten the country's development. Since planning and policy decision making will be given to the States, there will be less bureaucratic obstacles to the implementation of economic programs and projects. There will also be inter-state and regional competition in attracting domestic and foreign investments and industries.

Resources will be better distributed among the provinces/regions since government revenues will be devolved. States will have more funds for infrastructure and other economic projects. Federal grants and equalization funding from the federal government and the more prosperous states will help support the less endowed and developed regions, and the poor and the needy across the land. This will result in more equitable development.

5. Federalism will enhance democracy. The citizens will have more opportunities to participate in state affairs beyond voting.

Is federalism suitable only for large countries and, therefore inappropriate for a relatively small country like the Philippines?

Federalism is feasible in both small and large countries. Political considerations are more important than size of the country. Large countries that have adopted the federal system include the United States, Australia, Canada, India, and Brazil. Smaller countries include Belgium, Pakistan, and Switzerland.

People’s organizations and other progressive groups are very hesitant to engage the constitutional reform process because they are afraid that if you open up the 1987 constitution for amendment, progressive provisions such as those limiting foreign ownership of certain sectors of the economy will be removed. Indeed there are groups who want to do this.
The Congressional Policy and Budget Office under the Speaker of the House of Representatives, for example, has proposed that these provisions be removed from the constitution and policy on foreign investment in these sectors be left up to a new parliament to decide.

Another group, that set up as a project of the Presidential Assistant for Special Concerns Bert Gonzales, has adopted the proposals of the PCCR. In 1999, President Joseph Estrada issued Executive Order 43 to create the Philippine Commission on Constitutional Reforms (PCCR) to "facilitate the study of proposals on economic reforms that can be accomplished through constitutional amendments." The PCCR concluded that certain provisions in the Constitution need to be clarified and reviewed to avoid ambiguity, moderate traditions of protectionism and afford flexibility to future policy makers.

Is it necessary that we make amendments to the economic provisions in the Constitution?
We are committed to preserve the pro-people provisions in the Constitution.We believe that charter amendments are not necessary to spur economic growth. Amending the charter will have little effect on the entry of foreign investments. Most surveys of foreign investors show that they have other concerns beyond low barriers to entry. Many business people argue that amendments are not necessary given the adequacy of provisions in Article XII and other legislation allowing participation of foreigners in economic activities of the country.

Shall we allow foreigners to involve in the development our national resources?
It is ideal for Filipinos to develop and benefit from our natural resource endowments. We have been fortunate to have enormous resources in this country but until now vast portion of these resources remain untapped.

Why these resources have remained untapped is a question Lack of capital and appropriate technology For sure a lot of us have pondered on the question why these resources remain untapped and for sure one of the many our answers may have been the lack of capital and appropriate technology.

Removing capital requirements for foreign juridical entities but not individuals could be an option in accessing capital and technology. Or at least, perhaps it may serve the country’s economic interest if we could give Congress and our economic managers the maximum flexibility to determine from time to time, pursuant to the current economic needs and circumstances of the country and the its specific industries, policy and regulations relating to foreign investments.

At present what are being resorted are creative ways in skirting the constitutional prohibitions related to foreign investments. Because these creative navigating of the provisions in the constitutions are which are also sources of rent seeking behaviors and outright corruption, giving more room for foreigners to involve in the development of our natural resources may prove better in the long-run.

Shall we allow foreign ownership of land?

It may help us understand the complex issues related to land ownership if we start by looking at land classification. Lands that are alienable and disposable (thus could be owned) are only agricultural lands. Agricultural lands are further classified according to its use, either agricultural per se, industrial, commercial, residential or institutional. Forest/timber lands, mineral lands or national parks are non- alienable and non-disposable. The big issues surrounding land ownership debate is one of national patrimony, security and control.

One way to approach the debate is to determine which of the different land classifications make us very vulnerable when we allow foreign ownership on them. Perhaps it would be prudent to fight for sole Filipino ownership of agricultural and residential lands but maybe not with commercial and industrial lands. Making available commercial and industrial lands may not compromise our security but could possibly spur economic growth and productivity.

How about in public utilities?

The big issue here is the concern for national patrimony and security. But while these concerns are valid, we should separate issues relating infrastructure, media, telecommunications and education because their security dimensions may not necessary be the same in all areas.

It is an accepted fact that developing the country’s infrastructure to the level comparable with our neighboring countries requires billions of capital investments. The Philippines, however, do not have the required investments and thus the ensuing question: what shall we do to develop our infrastructure? Some are now open in the possibility of lifting the not more than 40% ownership requirements for non-Filipinos in companies wanting to assist in upgrading our infrastructure. Partly this have been done in the case of Independent Power Producers (IPPs) who helped solved our problem with brownouts in early 1990s.

In the case of media, there are people who also argue that foreign ownership in media (broadcast and print) be allowed. They reasoned that due to the absence of competition from non-Filipino media outfits, upgrading in terms of skill and equipment by media networks is taking a longer time. Second, they also complain the reported abuse of some media groups of their employees. They provide low salaries especially to ordinary personnel like reporter, researcher, spinner, deskman, etc.
Educational institution is yet another sector where prohibition for foreign ownership is constitutionally mandated.

We are of the view that there is need for the continued Filipinization of the educational system. Thus, to instill nationalism and active citizenship, educational institutions should remain in the hands of Filipinos. It must be pointed out, however, that these institutions should achieve global quality standards.

Institute for Popular Democracy
August, 2006

SWS: 70% OF PINOYS FOR CON-CON, 72% FOR PRESIDENTIAL SYSTEM. Seventy percent of Filipinos prefer a constitutional convention to propose amendments to the Constitution, according to the latest survey conducted by the Social Weather Stations (SWS).
The noncommissioned survey, which was conducted from May 28 to June 14, involved 1,200 respondents and has an error margin of plus or minus three percentage points at the 95 percent confidence level for national-level percentages.

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