Why—or why not—Cha-cha?

Cha-cha, or Charter change, has always been a controversial subject. A survey conducted in mid-2018 revealed that majority of Filipinos were against amending the Constitution, and this unpopularity may have historical underpinnings. Many Filipinos still recall how former President Ferdinand Marcos passed the 1973 Constitution through a haphazard process that what was widely viewed as an attempt to prolong his stay in power. This move gained even more notoriety as the Supreme Court upheld the document’s validity in the landmark case of Javellana vs Executive Secretary. Marcos was eventually deposed, but the negative perceptions of Cha-cha continued, plaguing many outgoing presidents from Gloria Macapagal-Arroyo to Benigno Aquino III.

Neither does it help that the Constitution is unclear on the process to be followed for making amendments. Speaker Lord Allan Velasco has expressed preference toward a constituent assembly (or Con-ass) as a means to amend the Constitution. In this process, Congress elects delegates from within their ranks who will be in charge of the amendments. The problem with this process is that the Constitution does not state whether both chambers of Congress are to vote jointly or separately, triggering a tug-of-war between the House of Representatives and the Senate.

However, barring factors such as its suspect timing and unclear process, Cha-cha as a political exercise deserves objective consideration. While the 1987 Constitution has served the country well, it is far from perfect. To begin with, there are many controversial provisions in the Constitution that barely made it to the final text. To illustrate, the choice of a bicameral Congress instead of a unicameral one prevailed in the constitutional committee (Con-com) by only a single vote. This narrow win is said to have resulted to the confusion on how the two chambers should vote when amending the Constitution.

More importantly, despite the optimism that accompanied the enactment of the 1987 Constitution, one that symbolized an end to a legal framework that set the stage for a dictatorship, the past three decades have gradually revealed that the celebrated document may have failed in delivering its promise. The increasing gap between the rich and the poor, glaring lack of leadership opportunities for the common folk, and a seeming inability to catch up with the opportunities presented by globalization, give us good reasons to revisit our Constitution.

Economy

Velasco has justified his renewed interest in Cha-cha by citing the need to recover from the economic devastation brought about by the pandemic. He vows to entertain only amendments to the economic provisions, and a look at his bill, which serves as the mother draft for the ongoing deliberations, shows particular focus on nationalized industries. The Constitution mandates a 60-percent Filipino ownership on industries covering media, advertising, land and natural resources. The Speaker’s bill attempts to give Congress the power to loosen these restrictions.

Nevertheless, there is a reason why certain industries are prioritized in our Constitution: They play key roles in national economy and security. In recent years, for example, foreign offshore gaming operators (Pogos) have flocked to the metropolis, outbidding Filipino buyers in condominium offers. It is not difficult to imagine the same group in a shopping spree with land developers once foreign ownership restrictions are relaxed. With the country unable to cope with overpopulation in Metro Manila, this is bound to present problems. More importantly, the possibility of allowing an influx of foreign landowners would have serious repercussions on the country’s national defense, especially considering the ongoing security issues in the West Philippine Sea.

Federalism

Despite claims that amendments will be restricted to economic provisions, a Con-ass automatically opens the door for other changes, such as the shift to a federal form of government, an agenda that has stood atop the administration’s priorities. Some of the administration’s allies have articulated that federalism will allow local government units (LGUs) to achieve absolute autonomy. However, totally cutting off financial support for LGUs, leaving them to raise money on their own, is problematic. While developed cities like Manila, Cebu and Davao are capable of self-sufficiency, the same cannot be said of many remote municipalities that are still dependent on aid from the national government. And if the issue is lack of independence, it bears noting that the Constitution already provides for the decentralization of governance. The 1987 Constitution devolved functions of national administration to LGUs, making the latter more accountable and responsive to the needs of their constituents.

Party list

Sen. Vicente Sotto III revealed that President Duterte is keen on abolishing or amending the party list system to eliminate the communist insurgency, believing that the Communist Party of the Philippines and the New People’s Army have abused the party list system.

It cannot be denied that since its inception, the party list system has been used by many as a shortcut to Congress, with political dynasties, religious sects and leftist groups utilizing it to catapult members into public office. However, this does not take away from the noble goal of the party list system: to democratize political power. Despite its flaws, this system has provided added representation for underrepresented, marginalized and oppressed sectors. Besides, if leftist organizations are proven to have links with subversive groups, then their nominees should be disallowed from running in the first place. The Constitution already prohibits political participation of groups who pursue their goals through violence. A stricter screening process by the Commission on Elections could help achieve this goal.

Legislation

Some of the weaknesses in our Constitution could very well be addressed by simple legislation.The Foreign Investments Act could be amended to introduce investment-friendly policies for multinational corporations. This may involve relaxing the rules on the ownership of shares of businesses that are part of nonnationalized industries. The Local Government Code could also be amended to implement genuine decentralization. This is effectively what happened in Mandanas vs Executive Secretary, where the Supreme Court declared as unconstitutional a provision that limited the LGUs’ share in the national taxes.

Congress could also choose to define political dynasties in the Party List System Act, to break up the tight grip of political families on party list seats. This is what the law on the Sangguniang Kabataan Reform Act did, paving the way for the operationalization of the Constitution’s antidynasty provision.

Timing

There are many other provisions worth analyzing whenever Cha-cha is raised: the CHR’s lack of financial autonomy, the lack of a strong political party system that has only encouraged the proliferation of the “padrino” system in politics, the dearth of mechanisms that would counterbalance the President’s appointing power which has weakened the separation of powers in government, etc.

Unfortunately, like the provisions on the economy, federalism and party list, these issues will have to wait. We are only a year from the next presidential elections, so no matter how one tries to justify it, current efforts at amending the Constitution are bound to evoke suspicions of ill intent. If the President’s party is indeed genuinely interested in improving the Constitution, it would be wise to wait for a renewed mandate from the electorate before initiating amendments.

Nevertheless, the President seems strategically placed to push the boundaries when it comes to this political exercise. With a year remaining into his term, the President holds a supermajority in the Lower House, along with a 70-percent approval rating. Indeed, it would be interesting to see how the administration’s allies will tackle the issue in the coming months. One thing is for sure: regardless of how they choose to proceed, Cha-cha will remain a defining issue for this presidency. —CONTRIBUTED

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The author is a senior lecturer at the University of the Philippines College of Law, and a cofounder and managing partner of Cerilles & Fernan Intellectual Property Law. He earned a Master of Science degree in Human Rights at the London School of Economics and Political Science [Chevening scholar] in 2019. He also holds a Master of Laws with certificates of specialization in Public Law and Regulation and in Law and Technology, earned in 2017 from the University of California, Berkeley [Asia-Pacific scholar]. The UP alumnus also taught constitutional law at the University of Makati in 2018.