Federalism proposal groping for support

The Constitutional Commission created by President Rodrigo Duterte by an executive order still gropes for the people’s support at this point, even with the impressive proposal that spells a progressive future Philippines.

As a constitutionalist, Former Associate Justice Antonio Eduardo Nachura, who is a member of the Consultative Committee tasked to review the Constitution, mentioned some persuasive reasons for Charter change.

He said “the 1987 Constitution was framed by an appointive Commission and its members did not have the direct mandate of the people”; and that “the Constitution suffers from infirmities arising from compromises”.

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“Many of these compromises resulted in more than 50 provinces, including major ones, which require enabling legislation,” Nachura pointed out.

He hopes he would see the new form of government taking shape during his lifetime.

However, he recognizes the limitation of the Consultative Commission such as the lack of funds to get it through the people.

Moreover, he said the ConCom recognizes its limitation and that their draft is yet to be “critiqued by Congress and it is Congress that will eventually craft whatever amendatory provisions that will be”.

“I agree that there had been areas that we missed. But I guess those are limitations. We hope, if Congress will eventually decide to talk about constitutional change, they will invite experts in various fields so that they will be given the arguments they needed for justification for any of these provisions,” Nachura said.

He also shared that their travel to the other regions have not been that smooth as he shared that they had scheduled regional consultations already and of the eight regions, only three materialized.

He said they are “not totally supported”, and when they made consultations with top government officials- -such with the secretary of finance, secretary of budget and management, and others- -“unfortunately, they were not all pro-federal government”.

“I recall when we have people from the DBM and we asked a number of questions. I think it was the undersecretary who responded in one of the questions, the response was ‘we still have to get a clearance from the secretary. So there was no general agreement on many things, but we got our figures precisely from government, including the President,” according to Nachura.

This is as to the concern on the partition and sharing of revenues.

Duterte issued Executive Order 10 on December 7, 2016, creating a 25-man Consultative Committee (ConCom) to review the 1987 Constitution.

Nachura said this came even as the House of Representatives was then debating on its amendatory resolutions.

He said there were 20 members initially appointed, “with two more to be added later, and work commenced before the end of February this year”.

“Through the months of March, April, May and June, the ConCom labored to fashion a new Constitution for the Federal Republic. On July 3, by a unanimous vote of all its 22 members, the ConCom approved the draft of the proposed Constitution, and on July 9, the ConCom presented the draft to Duterte,” Nachura narrated.

He also said that in the State-of-the-Nation Address (SONA) on July 23, Duterte “mentioned the ConCom proposal for consideration, but did not unequivocally endorse it”.

“We hope that Congress will convene as a Constituent Assembly, and approve proposals to revise the Constitution. Consistent with the accepted constitutional principles, the Congress will still have the discretion on what proposals, if any, it may choose to adopt. It is our fervent hope that the Congress will consider the ConCom proposal, or at least, use it as the working draft in the revision of the Constitution,” Nachura expressed.

Under the Doctrine of Proper Submission, “the people should be given ample time to assess the advantages and disadvantages of the proposed amendment. There is no valid submission if the populace does not have enough time for deliberation”.

“But because the 1987 Constitution itself prescribes the time frame within which the plebiscite is to be held, this question of whether adequate time is given to the people to deliberate on the merits and demerits of the proposed amendment has now become academic,” according to Nachura.

He cited a Supreme Court ruling stating that “the plebiscite may be held on the same day as regular elections”.          

As to the additional reasons to change the constitution, Nachura said the ConCom finds the current Constitution as excessively long.

The ConCom believes “some provisions should have been embodied in implementing statutes to be enacted by Legislature…; it suffers from verbosity and prolixity when a constitution should be readable and easily comprehensible; and it was drafted under tremendous time pressure that did not allow adequate time for editing, or even an opportunity to correct provisions in order to harmonize them with other provisions approved by the Commission at a later date”.

The proposals of the ConCom included the additional layer of government which is the regional governments, the requirement of college degree for those seeking election to the positions of president, vice president, senators, congressmen, regional governors and regional vice governors.

There is also a proposal for a major restructuring of the judicial branch.

In the proposed federal government, there would be at least two senators coming from each Federal Region (provided each region shall have the same number of senators).

Qualified to be senators are those natural born citizens who are at least 35 years old on the day of election, college degree holder or its equivalent, domiciled in the Federal Region for not less than two years prior to election day,

Senators and members of the House of Representatives will have up to two terms where one term is good for four years.

The House of Representatives will be composed of not more than 400 members unless otherwise provided by law where 60 percent are elected by plurality of votes where each legislative electoral district shall have one seat in the House of Representatives and 40 percent shall be voted by the system of proportional representation.

Qualified to run for a seat in the House of Representatives is a natural born citizens who is at least 25 years old on the day of election, college degree holder or its equivalent; and except for those elected through proportionate representation, must be a registered voter and domiciled in the district where he or she is elected for not less than one year prior to election day.

Members of the Regional Assembly must also be college degree holders, at least 25 years old, and have lived for six years in the region prior to election day.

The Regional Assembly crafts Regional Laws, approves the budget of the region, and elects among them a regional and deputy regional governor.

In the Regional Assembly, 50 percent represent each province, highly urbanized city and chartered city; while 50 percent represent political parties through proportional representation.    

For the executive branch, the President and Vice President must also be natural born citizens and registered voters; must be college degree holders or its equivalent, at least 40 years old; have lived in the Philippines for at least 10 years prior to election day, elected by direct vote of the people.

In case of vacancy in the Office of the Vice President, the President shall appoint a Vice President from among the members of the Congress who belongs to the same political party.

The term limit is four years and eligible for re-election for one term.

The Vice President shall be appointed as a member of the cabinet and the appointment shall not require confirmation.

The regional governor exercises general supervision over its component local governments, shall faithfully execute all federal laws applicable in the region consistent with the constitution, faithfully execute regional laws, appoint heads of executive departments, agencies, bureaus and offices of the region or other offices of the regional government-owned and controlled corporations or entities with original charters; and exercise other powers and duties as may be provided by regional law.

The deputy regional governor presides over the regional assembly, enters into contracts and agreements for the benefit of the region in accordance with regional laws and the Constitution, formulates the expenditure program of the federal region, appoints other officers and employees in the regional government as may be provided by the Assembly.

For the judicial branch, there would be specialized courts- -Federal Supreme Court with one chief justice and 8 associate justices, a Federal Constitutional Court with one chief justice and 8 associate justices, a Federal Administrative Court with one chief justice and 8 associate justices, and a Federal Electoral Court with one chief justice and 14 associate justices.

Nachura said there is no working model for the proposed set up of the judicial department and it is an original Philippine experiment in the sense that there are four constitutional courts established.

He said in other jurisdictions, they have constitutional courts which have jurisdiction over constitutional issues. But as far as he knows, the constitutional courts are in additional to their regular courts.

The proposed administrative courts for the Federal Republic is born out of the judiciary’s experience where so many cases come from administrative agencies.

“Ang tinatamaan nito, Court of Appeals, because the present Rules of Court instructs that these cases may be reviewed by the CA. Even decisions of the Office of the President will have to be reviewed by the CA. Punong-punoang CA of appeals from appeals from administrative agencies. This is our own contribution to help decongest the courts,” according to Nachura.

He said they also saw how election cases took so much time before they could be resolved in the House of Representatives Electoral Tribunal.

“I think the present HRET has 63 pending cases” which are barely moving, according to Nachura.

This prompted them to put these specialized courts to address the problem on congestion.

The proposed new constitution also includes sanctions against turncoatism and explicit prohibition against political dynaties.

It is proposed that except if one is running for President, no two candidates related to each other up to the second civil degree are allowed to run at the same time, and no one is allowed to run for the position to be vacated by a relative within the second civil degree.

Nachura said there are proposed provisions that would make it easier for political parties to coalesce which is an option for a political party that shrunk into a small group to ensure participation in Congress by negotiating and coalescing with other groups.

Also under the proposed federal structure, the constitutional court may give advisory opinions to Congress when legislators would seek enlightenment as to the sound of constitutionality, when passed into law, of a measure being legislated.

Nachura also explained that the present national agencies will remain and be subject to the national federal government’s supervision and control as it is now. But this will not prevent regional governments from having their own agencies to take charge of their current functions such as public works that might need immediate actions.

He said they invited a number of government people when they talked about the financial requirements and their explanations were not entirely satisfactory.

However, he hopes that “eventually, government will learn to police its own financial extravagance if it were extravagance and so that whatever the government earns would be enough for government functions and expenditures”.

“What is brighter promise is the power of regional governments to be able to raise funds through the exercise of its powers, adding the taxing powers and regulatory powers because the policies made by the national government shall be undertaken by the regional governments.          In the matter of regulation, it will also include revenue generation.

“I must admit that we need experts to look into this. I hope that if Congress should ever find it necessary to propose the things we made in our proposed Constitution, they will invite enough experts, particularly experts in government finance,” Nachura said.

 



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