[ANALYSIS] Deep Dive | Draft constitution: Surgical precision, not blunt force

The House of Representatives has approved on second reading a draft federal constitution benignly called “Resolution of Both Houses No 15” (RBH15). Under the respective Rules of the Senate and the House of Representatives, a “joint resolution,” which is what RBH 15 actually is, undergoes the same procedure as a bill, which must pass 3 readings in both chambers and must be signed by the President.

While RBH 15 is one step away from passing the House, there is no counterpart proceeding in the Senate for RBH 15 – at the moment. 

This week, we take a Deep Dive into some parts of RBH 15. Space limitations preclude us from discussing everything in RBH 15 so our Deep Dive will come in many parts.

The past made present again

One of the “Whereas” clauses of RBH 15 puts in context the reason behind RBH 15.

“WHEREAS, since the Twelfth Congress, stakeholders from different sectors of society have conducted studies, consultations, and submitted to the Congress of the Philippines several proposals to amend or revise the 1987 Constitution.”

The Twelfth Congress lasted from 2001 to 2004, coinciding with the first 3 years of the nine-year term of then-president now Speaker Gloria Macapagal Arroyo. It may be recalled that Mrs. Arroyo had attempted, as with her precedessors Fidel V. Ramos and Joseph Ejercito Estrada, to amend the 1987 Constitution through: (1) people’s initiative, (2) the proposal to convene a Constituent Assembly, and (3)  the calling of a Constitutional Convention. All of these attempts failed.

It is not surprising that, with President Duterte’s expressed desire to have a federal instead of a unitary government in place through an amendment of the Constitution, Speaker Arroyo would oblige.

Of all the presidents who had attempted to amend the Constitution (Benigno S. Aquino III being the only one who did not attempt to have the 1987 Constitution amended), she was the one who pursued it relentlessly. The reference to the Twelfth Congress is a reminder of what she had wanted to put in place by way of constitutional amendments had the efforts not been stymied by the Supreme Court as well as by lack of support from many sectors.

RBH 15, of which the Speaker is listed as the principal author, is an attempt to make the past present again.

Federalism through legislation

One of the most striking features of RBH 15 is its proposed Article XII (Local Governments and Federal States). In a nod to the President’s expressed desire to shift from unitary to federal government, RBH 15 provides in section 1 that “(t)here shall be federal states in the country as provided in this article.”

To carry out this mandate, section 12 then vests in Congress the power to create a federal state, upon a petition addressed to it, out of “any contiguous, compact, and adjacent provinces, highly urbanized and component cities, and cities and municipalities in metropolitan areas through a resolution in their respective bodies, subject to approval by a majority of the votes cast in a plebiscite in the political units affected.” This power shall be exercised, according to section 13, within one year from the filing of the bill that passed upon the petitions and initiatives by the passage of an organic act defining the basic structure of government consisting of a “unicameral territorial assembly” and “courts consistent with the provisions of their constitutions and national laws.”

This is a striking departure from the methodology proposed by the President’s Consultative Commission on Charter Change which, in its draft proposed Constitution, proposed the creation, by way of the Constitution itself,  sixteen (16) Federated Regions, the Bangsamoro and the Federated Region of the Cordilleras which shall be “permanent and indissoluble parts of the Federal Republic of the Philippines.” 

No limits and restrictions

RBH 15 also removes all previous limitations set by the 1987 Constitution on congressional terms (Article VI, secs. 4 and 7 on the term limits of Senators and Members of the House), political dynasties (Article II, sec. 26, on the prohibition of political dynasties by law), the practice of professions (Article XII, sec. 14, par. 2 on the practice of professions, Article XVI, sec. 11 (2), par. 2 on the advertising industry), foreign ownership and investments (Article XII, sec. 2), and the preferential use of Filipino labor, domestic materials and locally produced goods and the mandate to adopt measures to make them competitive (Art. XII, sec. 12).

The deletion of congressional term limits and the mandate to pass legislation prohibiting political dynasties is clearly intended to encourage term-limited lawmakers to push strongly for the passage of RBH 15 in the House and in the Senate and its ratification at a plebiscite.

Should RBH 15 pass and become law and be ratified, all branches of government would continue to function in a transitory character until their successors are elected or appointed and duly qualified. They would then be eligible to run for office again on the 2^nd Monday of May 2022, presumably under a Federal state, as created by Congress.

The proposed removal of limits on ownership, practice of professions, as well as advertising, and the deletion of the “Filipino First” mandate under the 1987 Constitution practically signals that we are really “Open for Business.”

Bill of duties

In a throwback to the Marcos Constitution of 1973, RBH 15 proposes in Article IV a “Bill of Duties” coming after the “Bill of Rights” in Article III. The duties of every citizen under the proposed Article IV are:

• To be loyal to the Republic,
• To honor the flag,
• To defend the State,
• To contribute to its development and welfare,
• To uphold the Constitution and obey the laws,
• To pay taxes,
• To cooperate with the duly constituted authorities in the attainment and maintenance of the rule of law and of a peaceful, just, humane, and orderly society,
• To participate actively in public and civic affairs, contribute to good governance, honesty and integrity in the public service, and the vitality and viability of democracy.

These duties are characterized as “correlative” with the rights guaranteed under Article III and impose on the person the duty to exercise the rights responsibly and with due regard for the rights of others.

The proposed Article IV is almost identical with Article V of the 1973 Constitution, with the exception of the obligation to vote which is found in Article V, section 4 of the 1973 Constitution but not in RBH 15, Article IV.

Defining a “Bill of Duties” as “correlative” to the Bill of Rights runs counter to the notion that the Bill of Rights stands as a check on government intrusion into the rights of individuals. In People v. Marti, the Supreme Court characterized the Bill of Rights as a restriction against acts of the State and not acts of private individuals. In any balancing of interests between the acts of a State agent and an individual exercising his or her rights under the Bill of Rights, the balance would have to be tipped in favor of the individual. 

Imposing a “correlative” duty on an individual, as RBH 15 does, would create a “right” in favor of the State to demand the performance of certain acts from individuals that may be inconsistent with their free exercise of their rights. The addition of a “Bill of Duties” and the characterization of these duties as “correlative” are clearly inconsistent with the democratic ideals that RBH 15 professes to maintain and uphold. 

Dead in the water?

Clearly, RBH 15 proposes to accomplish through surgical precision what the PCCCC hoped to achieve by blunt force. It is nuanced and, considering the author and moving force behind it, quite strategic. Designed to not create too much attention, RBH 15 slipped into the national consciousness after it already passed Committee action and well on its way to plenary debate.

With the Senate stating that it would not act on RBH 15 and with time running out, what’s the big deal about RBH 15 and its apparent passage at the House?

Congressional leaders can still call for a joint session to consider the President’s desire to extend martial law in Mindanao. Should that joint session be called and convened, may Congress then convert itself into a constituent assembly and pass RBH 15?

Stranger things have happened as, for instance, the change in the speakership of the House after a joint session was convened to hear the President’s State of the Nation Address. It does not look like RBH 15 is dead in the water. – Rappler.com