Charter Change Debate?

The more I try to understand the so-called Philippine charter change debate, the more I realize that it is not a debate at all. The two sides are not talking about the same things, so there is no way of really weighing one side against the other. According to the pro charter change side, the shift to the unicameral-parliamentary system would streamline government, spur development, and make the country overcome corruption. The opponents of charter change point out to the so-called transitory provisions which provide for a concentration of power in the present president, the automatic extension of the terms of elected officials till 2010 (when many terms would have expired in 2007), and the concentration of power on the present legislators from the Senate and the House of Representatives.

On what, at first glance, is a side issue, there seems to at least be two sides. This is the issue of the national patrimony provisions. The charter change proposals of the House of Representatives and that of the Consultative Commission (ConCom) clearly want to open up ownership of land, natural resources, public utilities and mass media to foreigners, because according to them, this will result in national development etc. And of course, the opponents of charter change are saying that this will complete the sell-off of our national patrimony to foreigners, and that these steps will not result in economic gains for the country.

This clash on the issue of national patrimony is, in a sense, overblown. After all, hasn’t the present government already found ways to circumvent constitutional restrictions in order to get foreigners to operate and lease utilities and mining concessions? The thing that is now limiting the entry of foreign mining companies in the Philippines is the opposition from the Catholic church hierarchy, and not the Constitution. And I very much doubt whether opening up what little is still closed to foreign investment would spur economic development.

Thus, we are now saddled with a charter change non-debate.

And then, there is the more interesting (from the spectator’s point of view, that is) struggle regarding the technicalities of how to change the constitution. The House of Representatives is trying to push the point of a 2/3 vote as meaning 2/3 of the total members of the House of Representatives and the Senate, even if these legislators are all from the House of Representatives. This is a creative interpretation, and will be unique in the world – anywhere where the legislature has two chambers, they are required to get the required majority votes separately, unless the law specifically says that they should sit jointly for certain decisions. The House is trying to do everything to push their creative interpretation of the 2/3 vote requirement; but this will clearly get nowhere.

And the so-called peoples initiative is also getting stranded in a lot of legalese. It seems like it is anything but a peoples initiative, with all the government bodies tinkering with the process. It will indeed be a surprise if the Supreme Court accepts the Sigaw ng Bayan etc initiative as valid.

The charter change issue is clearly getting nowhere. But what can we conclude from all this?
First of all, it really seems like the whole charter change issue or debate is one giant smokescreen (or red herring, if one prefers that analogy). With both the content and the procedure going nowhere, why on earth is the government still pushing it? As long as all eyes are on the charter change issue, other issues including that of the Garci-tapes scandal become less prominent in the public eye. Also, legislators are less prone to be anti-charter change or anti-GMA because they have everything to gain if charter change “transitory provisions” are implemented.

The second conclusion that one could draw from the current charter change issue is that there seems to be a consensus that there is something wrong with the Philippine political system, and that it needs some radical changes. While many people don’t agree with the currently proposed set of amendments to the Constitution; a lot of these people are in favor of some changes, at least if these would help get rid of the corrupt and inept politicians currently running the country.
It is a pity that this underlying base of support for fundamental political change is being used by both sides in order to push their various short-term aims. What we need now is a call for genuine discussions on how best to design a political system that fits the Philippines today.
What we need now is a real debate on charter change.

Disperse the chief executive’s power to appoint officials

One thing that I like about parliamentary systems is the fact that the prime minister is limited in his/her power to appoint people to all kinds of government positions. The prime minister’s cabinet is formed as part of the coalition negotiations – i.e. parties agree to join the governing coalition on the basis of programmatic points and seats in the cabinet. After the negotiations are done and the cabinet is formed, it is then put forward for approval by the parliament. The various ministers are then answerable to parliament directly, which could withdraw its support from any one of them at any time. The cabinet ministers may even at times outlast the prime minister.

The president’s power of appointment is quite marked in the present Philippine political system. The pro-charter change campaign fails to point this out as one of the disadvantages of the presidential system.

According to the present Constitution, in Article 7, Sections 13 and 16, the president appoints the following officials:
– Secretaries and Undersecretaries of Departments
– chairmen or heads of bureaus or offices
– members of Constitutional Commissions, and the Office of the Ombudsman
– ambassadors and consuls
– officers of the armed forces, from the rank of colonel or naval captain
– heads of government owned or controlled corporations and their subsidiaries
– and all other officers of government whose appointments ae not otherwise provided by law, and those whom he may be authorized by law to appoint

The above list is indeed a mouthful, and it gives the president enormous powers, especially if he/she manages to stay long enough to appoint “friendly” people to these various positions. This power to appoint so many officials is a big reservoir of power of the president, as well as a source of corruption. It is also a task which is too much for one person to do well.

In the current move to revise/amend the constitution, there is not much being said about limiting the executive’s appointive powers. However, I believe that it would be good to clearly limit the powers of the executive, be it a president or a prime minister.

The constitution could be amended in such a way as to limit the president’s appointive right/duty to just the members of the Cabinet. Other bodies or persons should be the ones to appoint the other officials in the above list. For instance, the Armed Forces’ heads of services could appoint officers below them. The foreign service officials should be appointed from within the Department of Foreign Affairs. Constitutional Commissions members could be appointed by a special body formed for this purpose. Heads of bureaus under Departments should be appointed either by the department secretary or a body formed within the department for this purpose.

Under the current procedure, after the president makes an appointment, this needs to be confirmed by the Commission on Appointments, which is composed of members of the Senate and the House of Representatives. This is generally a good idea – which follows the logic of balancing the power of the president. However, since the president is able to sway a lot of lawmakers to join her/his party or ruling coalition, the Commission on Appointments is, to a large extent, a rubber-stamp body. We need to set up a body which includes lawmakers, but also having more people with wide experience (and hopefully, who are relatively immune to political pressure) to ensure that appointees have been chosen correctly. Perhaps people like former justices of the Supreme Court, former heads of Constitutional Commissions, and former Philippine presidents could sit together with lawmakers in this “strengthened” Commission on Appointments.

I believe that the dispersal of the power to appoint is a good principle of governance, and that it will be a good idea to implement this whether the country chooses to maintain its presidential system, or to change it to a parliamentary one.

Elections, Dutch style, on 22 November

On 22 November, the Netherlands will be holding elections for parliament.  The election campaigns are supposed to be going full blast right now, but for those of us who have experienced elections in other countries,  this does not seem obvious at all.

<>The placing of political posters is regulated – there are special poster billboards put up for this purpose, and political parties are allowed a limited number of  roadside posters (which the parties need to clean up after the elections, or else they are charged for the clean-up by the local authorities).  People are also allowed to put posters of the party of their choice in their front window.
Political rallies are mostly done indoors.  And since the campaign is done in Dutch, foreigners would hardly notice  the campaign.As the election time nears, there would be various debates organized on television, where the main candidates of the leading parties try to present their parties as the ones with the better set of policies for running the country.   And the newspapers are full of the criticisms and counter-criticisms of each party’s  program.

About a month before the elections,  voters could consult a website that gives an advice as to which party’s  program conforms to their own beliefs. This “stemwijzer” asks the site’s visitors a set of 30 questions, and on the basis of their answers it gives its advice as to which party to vote for.  But this is not necessarily that reliable.  On 16 October, they publicly launched the “stemwijzer” by letting the main candidates of the leading parties try out the website.  Surprisingly, some party leaders were given the advice to vote for rival parties.

In the elections here, we vote for a political party (actually, we really vote for specific candidates within the various parties); the parties win seats in parliament based on the percentage of the national vote that they get. Since there are 150 seats available in the lower house of parliament, every party that gets 2/3 of 1% of the vote gets one seat. The parties maintain lists of candidates, and the seats that it gets get allocated in the order of the list – i.e. if a party gets 10 seats, numbers 1 to 10 in the candidate list usually get those seats.  The exception to this is if a candidate with a lower position on the list gets a certain number of preference votes, they get to bump off a candidate in the main list.

On election day itself (which is always a working day),  we need to choose both a party and a candidate within that party. It usually doesn’t matter which candidate we choose, since the party gets the vote anyway.  We get to vote either in a local polling station, or in a polling station in a more convenient place (e.g. near one’s workplace, at the train station, etc.)

The voting is done in one of three ways: The oldest method is done using a paper ballot. You use a special red pencil to cover a small square in front of the name of the chosen candidate.   Then there is the use of the so-called “voting machines” – this is just a big board with lots of buttons, for the various choices. You just press the candidate/party of your choice. And the third way is through the use of voting computers, which use touch screen technology.

The election results are computed rather quickly. Polling stations are set to close at 8 in the evening. By 9 p.m., preliminary results are out; and before midnight an authoritative (more or less definitive, with more than 95% of the vote counted) result is then announced.  A few years ago, there was one municipality which reported their results only at 3 a.m. – they had a technical problem with counting (some say because they used older voting machines).

Amendment by “simple” constituent assembly

In her Philippine Star column o f14 October 2006, on the topic of charter change,Carmen Pedrosa wrote that “other countries amend their constitutions by a simple constituent assembly.” I wondered if this was indeed the case, so I took a look at the constitutions of a number of countries.

What I found was that in countries with bicameral legislatures, proposed amendments needed to be passed by both chambers separately, often with a 2/3 majority. Thus, those who propose to only count the total number of legislators and get a 2/3 majority of this even if they only involve legislators from one house of congress/parliament are really proposing something unique.

And then, there is nothing “simple” about the way other countries’ amend their constitutions. In the US, after both the House of Representatives and the Senate pass the proposed amendment, this amendment needs to then be approved by 3/4 of the legislatures of all States. In Canada, the amendment also needs to be approved by 2/3 of all provincial legislatures and these provinces must represent at least 50% of the population.

The Netherlands has a formula to avoid hasty changes of the constitution. In their procedure, a constitutional amendment is first passed by a simple majority of both chambers of parliament. Then they have to wait till a new parliament is formed, i.e. usually after 4 years. The new parliament then has to pass the proposed amendment with at least 2/3 majority in both chambers.

And not all parts of the constitution is open to amendment either. In Germany, these non-amendable provisions include the “division of powers, essential structures of federalism, principles of democracy, social welfare and fundamental rights, and the principle of state power based on law”. If we apply this kind of restriction on the Philippine case, it would not be possible to abolish the Senate, since this was a basic component in our system of “division of powers”.

I haven’t found, so far, any country with a provision to amend their constitution by “people’s initiative”. This manner of amending the constitution may then be unique to the Philippines. Given this, we shouldn’t be too impatient with our present difficulties in finding out how to work with this mode of amendment.

Simplify registration and voting for Overseas Filipinos

In the House of Representatives, there is a pending bill (House Bill 5329) which seeks to amend the “Overseas Absentee Voting Act of 2003” (or, RA 9189). HB 5329, instead of offering ways to make it easier for Overseas Filipinos (OFs) to vote in Philippine elections, propose to further restrict the process, adding all kinds of procedures and requirements for prospective voters. It is no surprise therefore, that many Overseas Filipino organizations have rejected the proposed law.

Congress should pass a law amending the OAVL in the opposite direction – away from the restrictive provisions of HB 5329, and instead to make the law more inclusive so as to encourage maximum participation of Overseas Filipinos in the democratic process. Simplifying the registration and voting procedure would do a lot to make more Overseas Filipinos participate in elections.

I wonder why it is really necessary for Overseas Filipinos to register for every election. For many other countries, this is not required; all you need is to notify the diplomatic post of your presence in the country. Then, you are automatically considered as being part of the voters in the area.

What is the problem is we eliminate the need for registration for Overseas Filipinos who vote in person in the various embassies and consulates? After all, all OFs have Philippine passports, and these are supposedly fraud-proof (or at least, as fraud-proof as the Comelec IDs). Why can’t we simply come to the Philippine embassy during the voting period, show our passport, and then vote in the election. The embassy/Comelec personnel then need to make a special mark in the passport indicating that the passport holder has voted. Of course, for those opting for mailed-in votes, a personal appearance is needed to register for postal voting. During this registration, the passport would then be marked indicating that the owner opted for postal voting.

This system would have a big effect on the OFs’ participating in Philippine elections. For one, it would mean one less day needed for travel (and lost work hours) in order to register or vote. Those opting for personal voting will then need to appear only on voting day, those opting for postal voting only on the day they register. Then, there is the advantage for seamen – they no longer need to predict where they will be 10 months in advance (as is the case in the present system). They will then simply have to go to a Philippine diplomatic post (embassy or consulate) or other designated voting areas in order to vote.

What about the danger of fraud? This is the question always in the mind of our legislators, it seems. This is minimal, with the system I am proposing.

Flying voters? With a mark on the passport that indicates if one has already voted, the only way a person could be a “flying voter” is if they manage to have two Philippine passports. What about if the person first votes abroad, and then returns to the Philippines? The overseas voting post would report to the Philippines re who has voted there, and thus a person who votes twice this way would be caught. (there could be all kinds of systems made e.g. marking the Philippine voting ID together with the passport, etc.)
As for the problem of returning OFs not having voted abroad, but not able to vote in their Philippine polling station, there is a simple solution. They could be required to present their passport at a special polling station, and have this marked in order to be allowed to vote.

This procedure of simply presenting one’s passport when voting also makes it easier for “undocumented” Filipinos (a.k.a. “TNT”) to vote. They would be naturally hesitant to give their address to Comelec authorities when they register under the present system. Also, having to go to the embassy twice – first to register, and then to vote – leaves them doubly vulnerable to the host country’s immigration police.

Permanent residents or dual citizens who want to vote should also be allowed to do so without having to sign any affidavit re their “intent to return” . This is discrimination and an undue restriction of the rights of a group of Filipino citizens. This rule discourages people from wanting to vote.

Any amendments to the present Overseas Absentee Voting Law (OAVL, RA 9189) should have as their guiding principle the need to enable as many Overseas Filipinos fully participate in the democratic process.