This article originally appeared on Manila Bulletin, where Dean Brion writes a column called "The Legal Front", and is reposted here with permission from the author.
Federalism and the amendment of the Constitution have been basic positions in President Duterte’s 2016 election platform. The people embraced him as President based, among others, on these positions.
True to his promise, the President issued Executive Order No. 10 on December 7, 2016, calling for a Consultative Committee to “study, conduct consultations, and review the provisions of the 1987 Constitution including, but not limited to, the provisions on the structure and powers of the government, local governance, and economic policies.” The EO gave the committee six months to submit its report and recommendation to the President who shall then transmit the Committee’s recommendations and proposals to Congress for its action.
Five months after the issuance of Executive Order No. 10, the President again touched on constitutional reform when he announced that he would name the 25 members of the committee after the draft of a new Bangsamoro Basic Law (BBL) is submitted and after substantial progress has been made in the peace talks with the communist NPA-NDF.
Since then, the talks with the NPA-NDF have been halted because of recurring clashes between the government and the NPAs amidst the two sides’ mutual allegations of bad faith. The BBL initially showed more promise but in late May, the battle with the terrorist Maute-ISIS in Marawi began and martial law was declared in the whole of Mindanao.
Based on newspaper accounts, the government forces have achieved the upper hand in the Marawi area, but how the Maute-ISIS problem would be resolved with finality remains uncertain, as the presence of a foreign element, the terrorist ISIS, has rendered a definitive assessment difficult. As in Bohol (where the Abu Sayyaf were fortunately repulsed in time) and in Marawi, terrorist forces operate covertly and by surprise, and may have the mobility that technology and financial backing render possible. Thus, their appearance in other areas of Mindanao (where some suspected Maute members have already been apprehended in June 2017) or even in nearby areas such as Palawan (where they may have some measure of support), remains a possibility.
These developments cannot but have an effect on the implementation of the President’s constitutional reform agenda. The past year already saw him without any effective step towards this direction as he had been occupied elsewhere. He had been busy attending to his drug war; in strengthening his ties with “his” soldiers and police; in foreign travels to establish a new diplomatic face for the country and to calm the waters of the West Philippine Sea; and to secure investments for the country. It was an eventful and fruitful year but not in the constitutional reform arena.
The five years remaining in his term, to be sure, cannot be considered a short time. But they cannot simplistically be viewed as ample for a constitutional agenda, particularly in a country like ours where problems exist on many fronts and disruptions and distractions can take place at any time, as what had happened in Marawi.
Consider that if the President convenes his committee on or about his State of the Nation Address this July, the committee’s proposals (which would presumably contain a draft amended constitution) will not be available until sometime in the first quarter of 2018.
This draft is the recommendation that the President shall transmit to Congress for its consideration. But Congress may take some time before it can act; the response the Constitution provides remains plagued with legal ambiguities that litigation-prone Filipinos will not simply allow to pass unnoticed.
By a 2/3 vote of all its members, Congress may directly call a Constitutional Convention or by a majority vote of all its members, refer the calling of a convention to the people; by a ¾ vote of all its members, it can act as a Constituent Assembly to directly propose amendments to the Constitution. Whether the Senate or the House of Representatives will act separately or as one body in determining the vote of all its members is a question that only the Supreme Court can resolve in a petition that could take time to rule on.
Once the constituent body is constituted and convened (whether as a constitutional convention or as a constituent assembly), it will need time to organize, deliberate, and formally promulgate the draft of the constitution to be submitted to the people for ratification. (It would be naïve to think that the President’s submitted draft shall simply be adopted as the draft for the people’s ratification. The taint of railroading that this move will leave – on the President as well as on the constituent body and its members – will be indelible parts of recorded history.)
How long the deliberative and drafting process will take is not easy to estimate, given the number of issues to be resolved; the varying nature of these issues, many of them deeply felt in their local and personal impact; the potential for delay due to internal constituent assembly developments; and intrusion of politics that cannot but be present in a process as important and as far-reaching in effect as constitutional change.
The federalism issue, although supported by the President, can by no means be considered an easy issue to resolve. Right now, no real debate has taken place and no discernible opposition has surfaced, but this situation may change once the unitary state proponents begin to make their presence felt. The “presidential” vs. “parliamentary” debate can likewise be a very lively one. These days, people are more aware of our natural resources so that the liberalization of their ownership and their environmental protection can arouse passions even in the streets. In other words, the proposed constitutional reform is not a one-issue affair that focuses only on the issue of federalism; many other issues shall be on the table and can lead to lengthy and impassioned debates inside and outside the constituent assembly’s halls.
Some of our readers may no longer remember (and may not have even been born) when the nation first ventured into constitutional reform through the 1971 Constitutional Convention.
In the course of its proceedings, the delegate from Leyte – Eduardo Quintero, a former ambassador – denounced the alleged attempts by Malacanang to influence the convention through a “payola” that involved some ConCon members and agents of the Executive department. This expose deeply disrupted the convention, leading to ConCon President Macapagal’s demand on then President Marcos for a written commitment that he and his spouse would not seek public office after 1973.
In September, 1972 (while the ConCon was still deliberating), President Marcos declared martial law based, among others, on events that started in the Plaza Miranda bombing of the Liberal Party meeting in 1971, and which led to the suspension of the writ of habeas corpus. (Acknowledgments now exist that indeed the NPAs had authored this atrocity, as the then President claimed.)
All these did not prevent the 1971 ConCon from concluding its business; it came out with an amended Constitution, but both the process and the result had been tainted. The subsequent ratification of the Constitution itself was made under marginal circumstances that led the court to pronounce the unusual ruling: “This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect.”
The 1987 Constitution itself was not drafted under normal circumstances. The change of constitution came soon after the EDSA Revolution and while President Corazon Aquino ruled the country by decree. The new Constitution was drafted by a Constitutional Commission whose members were handpicked by the President; only a token number did not belong to the victorious Aquino group. Thus, although less so than the 1973 Constitution, the 1987 Constitution also carries scars of irregularity under its democratic mantle.
To return to the present, Mindanao is now under martial law, triggered by the fighting in Marawi and the undisputed presence in our midst of international terrorists, the ISIS, whose approaches, methods, and viciousness are shocking even to a world already inured to acts of inhumanity. Peace and order can be disturbed in many parts of the country if the peace talks with the NPA-NDF fail. We cannot also remove from this witches’ brew the problems that the West Philippine Sea dispute could possibly spawn. All these contribute to an overall volatile situation that, singly or in combination, may even test if the center – the Republic, its governance, and its sovereignty – will hold.
Are these the ideal circumstances for constitutional reform? They may not be, but I am sure that the President, as the decisive leader that he is, is keenly aware that, if indeed the very sovereignty of the state is itself at risk, the search for the ideal circumstances that prudent men usually make, loses their primacy; real leaders simply search for the tools and remedies appropriate to the circumstances and challenges before them.