There are 3 modes by which the Constitution can be changed: (1) Congress convening itself into a Constituent Assembly; (2) people electing a Constitutional Convention; and (3) a People’s Initiative, with people directly proposing changes in the charter.
The proposals from any of these modes will have to go through a ratification process, where the people will vote “yes” or “no” to the changes in the Constitution. The people have the final say on whether we will change the Constitution.
The proposal from Duterte’s cha-cha committee is for consideration of the President only. The President may make proposals to Congress and the public, but the President has no formal or official involvement in the charter change process.
Since the people have the final say, it is imperative that we educate ourselves about the cha-cha proposals as early as now.
But first, we, the people, need to make our voices heard on the mode by which the Constitution will be changed. This is just as crucial as the content and substantive issues of the cha-cha process itself.
It seems there is already a consensus among the political society as to the mode; it’s Constituent Assembly. One indication of this is the seeming silence of the Commission on Elections (Comelec) when it comes to the pending cha-cha process. If there is an election of members of the Constitutional Convention, Comelec must be ready for it. Is Comelec ready or preparing for such a possibility?
It is crucial to question the seeming consensus on changing the Constitution through Constituent Assembly (Con-Ass). Below are 3 reasons why.
Con-Ass is least democratic
The Constituent Assembly or Con-Ass is the least democratic and participatory among the modes of changing the charter provided in the 1987 Constitution.
In a Constituent Assembly, most of the people will be given the least time and opportunity to understand the issues and participate in the discussion and debates that will shape the future of the country. Only the legislators will deliberate and decide on the proposals by and large.
We all know that in this country, most of the legislators have weak or no link with the people when it comes to substantive issues that have to be the center of constitutional debates. Most of them get elected based on patronage, not on policy agenda, much less their involvement in the cha-cha process.
Furthermore, legislators have been criticized time and again for not doing their legislative job with diligence and competence. Decisions of legislators, even on most important policy issues, have been largely dependent on what Malacañang or other moneyed interest groups provide. Academic Yoko Kasuya in the book Presidential Bandwagon has provided hard evidence to prove this. Most legislators have shown that they think of their vested interests first and foremost in every decision, especially how to get reelected.
The fact that they are mostly coming from political dynasties (see the study of Asian Institute of Management on the extent of political dynasties in Philippine Congress published in 2011), who won through money politics, makes their decision-making hardly pro-people and for the common good.
Congress is least open, accountable
The legislature has the weakest appreciation and understanding of the merits of transparency, participation, and accountability, being the least open and accountable institution in the government today.
Though supposedly housing the “representatives of the people,” both houses of Congress have hardly undertaken successful measures to make itself open and accountable to the public. Congress has no working feedback mechanism; generally the public is not privy to the dealings of legislators that affect their decisions; and while the Commission on Audit (COA) audits the Senate and House of Representatives, there have not been any successful social accountability measures (efforts by which citizens hold government to account) implemented that check how Congress performs, especially how they allocate and utilize their budget.
Congress is likely to end up undermining the power and independence of institutions whose function is to hold power to account and ensure an open and participatory government.
This is already evident in some of the proposals put forward in both Houses of Congress, particularly the subcommittee on constitutional amendments of Congress (Resolution of Both Houses Number 8):
- overarching oversight powers of the President over all of government – legislative-executive, judiciary, constitutional bodies, independent bodies, and all agencies;
- expanding the appointive powers of the President by removing the checks and balances performed in the 1987 Constitution by the Judicial Bar Council in the appointment of Supreme Court justices and by the Committee on Appointments in the appointment of heads of agencies and constitutional bodies;
- lack of provision on the importance of social justice and human rights, including the role of the Commission on Human Rights;
- exemptions on the nationalist provisions that currently limit foreign ownership of lands, exploration of natural resources, management of public utilities and ownership and management of educational institutions
These are serious and dangerous changes that need people’s mandate. Yet, Congress has yet to be fully open about these proposals and meaningful public deliberations have yet to take place about this.
Not independent from the presidency
In a Constituent Assembly, the check-and-balance relationship between the executive and the legislature will be critical. This is especially so now because the changes being proposed mainly initiated by the Office of the President are drastic, with far-reaching consequences.
Based on Congress’ performance so far, it has been subservient to the Executive – from its decision on the controversial affirmation of martial law in Mindanao to the adoption of the unpopular tax reform law. While the President’s part in charter change is only recommendatory, because of the control of the presidency on the budget and its expansive powers in the current legal-institutional framework, it has immense power over Congress.
Constitutional change is basic political engineering. It will create the basic infrastructure of our political system. One of the least trusted institutions in the country, with questionable independence from vested interests and weak linkage with the people on substantive issues, cannot be trusted to do it. – Rappler.com
Joy Aceron is convenor-director of Government Watch (www.g-watch.org) and a research fellow of Accountability Research Center based in School of International Service of American University in Washington, DC (www.accountabilityresearch.org).