The President protests too much

After he received the draft of the federal constitution from the consultative committee he created, President Duterte said he approved the document in toto—except for the transition provisions. He told the committee members he wanted an explicit statement, in the proposed constitution, that would prevent him from running for president again at the end of his term.

The committee obliged, revising some of the transitory provisions under Article XXII and inserting a new Section 2: “The incumbent President is prohibited from running as President in the 2022 elections under the Constitution.”

But whether from inattention caused by haste or from diabolic intent, the committee proposed new transitory provisions in the final draft that are even worse for the country’s democratic project.

I had serious misgivings about the transitory provisions in the first draft, the one presented to the President: The Federal Transition Commission contemplated by the provisions is an all-powerful agency under the control of President Duterte. In that first draft, the President is not only named chair of the commission; he appoints the search committee that will nominate the 10 members, and appoints the members themselves.

In the second draft, the President has been explicitly barred from reelection, the search committee has been junked, the commission’s membership has been expanded to include former presidents and the heads of Congress. (In view of yesterday’s dramatic but not unexpected coup at the House of Representatives, the number of commission members looks like it has now been reduced by one, since the formidable Gloria Macapagal Arroyo is both a former president and Speaker of the House.)

But the ban on President Duterte is now paired with the election of a Transition President and Vice President. Section 3 reads, in part: “Within six months from ratification of the Constitution, the President shall call for an election for the Transition President and Vice President in tandem. The Transition President and Vice President shall possess the same qualifications and be subject to the same restrictions as provided in Article VIII of this Constitution.”

The language of the transitory provisions, however, is inconsistent. It does not explicitly state that when the Transition President and Vice President are elected, President Duterte will step down. Based on his own pronouncements, we can say that the President would like to cut his term short. Even if we factor in Mr. Duterte’s penchant for melodramatic rhetoric, the election of transition officials who will serve only for a few years seems to suggest that the President’s publicly stated wish may be granted.

What does Section 4 mean, after all, if not that there is no more reason for President Duterte to stay in office? “The Transition President shall preside over the orderly transition to the Federal System of Government. He shall exercise all the powers of the President under this Constitution until June 30, 2022.”

And yet the transitory provisions lack the clear language required by, well, a transition. Section 1 reads: “The term of the President and the Vice President, which shall end on June 30, 2022, shall not be extended.” The use of the imperative “shall” suggests that the term defined by the 1987 Constitution will be respected. That President Duterte shall step down after the election of the transition officials is only implied; why did the consultative committee fail to include clear-cut phrasing?

I think it may be because the consultative committee did not want to make a secondary implication explicit. If President Duterte will cut his term short, then Vice President Leni Robredo will be phased out of her position, too—something she did not ask for. Even worse, the Transition President and Vice President will be elected “in tandem,” a phrase that echoes the controversial provision in Article VIII, Section 4: “The President and the Vice President shall be elected as a team.” (The poverty of the political theory behind this provision, and of Philippine party politics in general, can be seen in its weird choice of the word “team.”)

What do these two belated additions to the final draft of the proposed federal constitution mean? They will remove the leader of the political opposition, and, given President Duterte’s residual popularity, they will make it unlikely for an opposition leader to exercise oversight during the crucial transition.

Worst of all, the Federal Transition Commission remains an all-powerful agency—under the control of the administration.

On Twitter: @jnery_newsstand. E-mail: [email protected]