I have referred before, in columns and in public forums, to the realization that the Duterte administration’s policy on Charter change has changed according to the President’s political fortunes. Over time, it has become more extreme.
On June 30, 2016, Speaker Pantaleon Alvarez filed Resolution of Both Houses No. 01, calling for a constitutional convention. On the same day, Rep. Gloria Arroyo filed both House Bill No. 486 and Concurrent House Resolution No. 01 (with Rep. Prospero Pichay Jr.) also calling for a constitutional convention. All three representatives asserted that both the House of Representatives and the Senate must vote separately. Alvarez even argued that “a Constitutional Convention is not only the most participatory and democratic mode by which the discussion of the revision of the Constitution could be initiated but it will also dispel any doubt that it is being sought to advance the political and economic interests of a few.”
A month and a day later, on Aug. 1, former president Arroyo filed a new measure, House Concurrent Resolution No. 04, calling on the Senate and the House to convene as a constituent assembly. (The same deference to separate voting was retained.)
The following day, one of the pivotal measures was filed, by Representatives Aurelio Gonzales Jr. and Eugene Michael de Vera; Resolution of Both Houses No. 08 called on the Senate and the House to constitute themselves as a constituent assembly. (All told, a total of 28 measures related to Charter change had been filed by 2017.)
What happened in between the first wave of proposals for a constitutional convention and the shift to the constituent assembly mode of change?
The President’s ratings skyrocketed. In terms of his trust rating alone, he had improved from +26 in May 2016 (on the eve of the elections) to +79 just before he took his oath of office. That explains the shift, not merely in gear, but in transmission system, from manual to automatic. The President and his allies were looking at the windfall in political goodwill he had generated, and resolved to make political capital out of it.
Wasn’t this merely politics in action? Politics, infamously, is the art of the possible. But the evolution in the Duterte administration’s policy on Charter change is not an exercise in possibility; rather, it is crass political opportunism.
The administration’s shifting position on the separate-voting provision demonstrates the difference between possibility and opportunism.
When, on Jan. 18 this year, Speaker Alvarez asserted that the constituent assembly mode will function even without the participation of the Senate, he was speaking with the confidence of a politician whose principal’s net trust rating had rebounded from +60 to +75. We had more proof that this administration is not “a government of laws, but only a government of men”—and what men: petty, petulant, power-possessive.
* * *
I borrow the insights of the constitutional scholar Walter F. Murphy, who classified the purposes of a constitution.
One, a constitution is a charter, a framework for organizing power. “At minimum, an authoritative constitutional text must sketch the fundamental modes of legitimate government operations.”
Two, a constitution is a custodian of fundamental rights. (Murphy uses the term “guardian.”) “In so far as a text is authoritative and embodies democratic theory, it must protect rights to political participation.”
Three, a constitution is a covenant, a symbol and an aspiration of the body politic, “a covenant by which a group of people agree to [re-]transform themselves into a nation.”
Four, a constitution can be mere cosmetics, intended to deceive by paying lip service to democratic ideals. The cosmetic role “allow[s] a nation to hide its failures behind idealistic rhetoric.”
Jon Elster, in the Duke Law Journal (45 Duke L. J. 364 [1995]), identifies eight “circumstances” that “induce constitution-making.” He writes: “The fact is that new constitutions almost always are written in the wake of a crisis or exceptional circumstances of some sort.
1. Social-economic crisis.
2. Revolution.
3. Regime collapse.
4. Fear of regime collapse.
5. Defeat in war.
6. Reconstruction after war.
7. Creation of a new state.
8. Liberation from colonial rule.
I note that the President’s popularity is not one of these conditions.
(From remarks made at the DLSU College of Law Forum on Charter Change, Feb. 26, 2018.)
On Twitter: @jnery_newsstand