charter change

[OPINION] The Senate, the Constitution, and the price of self-preservation

Alfredo Molo

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[OPINION] The Senate, the Constitution, and the price of self-preservation
When a constitution is re-written, it creates a new legal order. That in turn triggers a revised judicial system.

Ultimately, self-preservation kicked in.

This week the Senate released a resolution rejecting the latest iteration of the “People’s Initiative.” Not a single senator deviated or even abstained. What’s even more remarkable is that just a week prior, Senate President Miguel Zubiri sent a missive agreeing to Cha-Cha but limiting it to economic amendments.

The senators must have been shocked at the speed by which signatures have been gathered. The goal of every Cha-Cha drive is to get 3% of each district and at least 12% of the national voting population. That’s nothing to a House of Representatives dominated by political dynasties. Their absolute control over their fiefdoms has made the gathering of signatures “fait accompli.” All it really needed was a signal from the top. And there can be no greater signal than the Commission on Elections (Comelec) receiving P14.2 billion to use for plebiscites in 2024. 

The thrust of this people’s initiative is to change the way the Senate and the House will vote if a “Cha-Cha” through constituent assembly happens. In a constitutional convention, we all get to vote for our delegates. In a Constituent Assembly, your senators and congressmen are the delegates. The signatures being gathered will make the two bodies vote “jointly.” So, you take 24 senators and add 300 congressmen giving you a “constituent assembly” with 324 delegates. A majority of the 324 gets to change the Constitution. 

‘Vote jointly’

Voting “separately” means that the Constituent Assembly will have a two-tiered system, much like the way we pass laws today. Proposed changes to the Constitution will need a majority from the 24 senator-delegates, and a separate majority from the 300+ congressman-delegates. It’s obvious why the Senate would refuse to “vote jointly.” But that’s precisely what the rocket-fueled signature campaign wants.

What the initial Senate move tried to balance was the willingness to dance this “Cha-Cha” but only on the condition that they will not be sidelined. The problem, however, is that the “people’s initiative” is so far gone some congressmen are publicly bragging that they might get 20% of their districts to sign. There’s no deal to be had when you have nothing that the other side wants. 

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The irony is that the rocket fuel for this Cha-Cha (Comelec’s P14 billion plebiscite budget) came from the bicameral conference committee of Congress. The “bicam” is made up of both senators and congressmen. History might soon tell that by letting this seemingly innocuous insertion pass, the Senate may well have signed its death warrant. It’s a stark reminder of the perils of too much “Executive accommodation.” 

However, the Senate is not the only thing a new system of government can potentially get rid of. When a constitution is re-written, it creates a new legal order. That in turn triggers a revised judicial system. And revamped societies rarely retain sitting magistrates. Recall how Marcos took over the courts during Martial Law, and how the late president Corazon Aquino dealt with the Marcosian Supreme Court (SC) after EDSA.

There’s reason to believe why this might be in play.

Duterte appointees

In “Justices and Political Loyalties: An Empirical Investigation of the Supreme Court of the Philippines”, Björn Dressel (PhD, of the Crawford School of Public Policy) and Cristina Bonoan (UP Law) observed that “[u]nder the Duterte administration, voting preferences have been more aligned with the appointer.” According to their data, Duterte-appointed justices don’t just tend to vote in favor of his administration, they do so by a factor “that is higher than 25%” than other justices. 

This highlights an issue that’s been vexing the Marcos’ administration: 13 out of the 15 justices are Duterte appointees. Most of them will outlast the current president. Key elements of the economic agenda are pending before the SC. With the ongoing political schism, high-stakes political challenges will soon make their way there. All these just in time for the mid-terms where the Dutertes threaten a comeback. Considering how much this administration abhors uncertainty, something’s gotta give.

The new Senate resolution invokes greater principles of democracy in a bid to win public sentiment and save itself from irrelevance. Regardless of how we feel politically, the better option is still to side with it. And if it comes to that, with the Court. But we need to seriously reflect on why our institutions have become so vulnerable. Mired as we are in the compromises of governance, we sometimes overlook the dangers that incremental decisions make. 

Decisions like ousting a fellow legislator being targeted by a president and letting her get arrested on shaky charges. Or removing one’s own chief through a method that “enlists the Court’s participation in the erosion of its own independence.” That phrase is from Justice Caguioa who then warned about committing (judicial) “seppuku – without honor.” History shows that the roots of institutional weakness are more often the products of its own members. 

An independent Senate stood against the late president Fidel Ramos, as well as former presidents Joseph Estrada and Gloria Macapagal-Arroyo GMA – when needed. In doing so it earned the public’s gratitude and, more importantly, its protection.

In the same vein, the landmark cases taught in law schools venerate Teehankee, as well as the decisions of the Davide and Panganiban courts that pushed back against overly ambitious presidents. If this Cha-Cha is truly unstoppable, these are the examples our successors will need to guide them once the “Bagong Lipunan” washes everything away.

The world might have changed but, the price of liberty remains the same.  –

John Molo teaches constitutional law and chairs the political law cluster of the UP College of Law. He worked in the Senate and the Supreme Court. He is a trustee of the Philippine Bar Association and chairperson of the IBP Journal’s Editorial Board.

1 comment

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  1. ET

    The bicameral conference committee of Congress is noted for some “legislative magic.” The recent “magic potion” is the Comelec’s P14 billion plebiscite budget. If senators were present when it was “magically brewed,” why did they agree to such a concoction? Did too much “executive accommodation” mislead them”? This shows what kind of checks and balances exist in our present government.

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