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Two draft charters and no plebiscite

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In January 2018, President Rodrigo Duterte created a “Consultative Committee” (ConCom) and directed it to prepare a draft charter to replace the 1987 Constitution currently in force.
There are many good reasons for Charter change (cha-cha). The 1987 Constitution has too many provisions which depend on congressional action. Most infamous among them is the provision which prohibits political dynasties, but leaves it to Congress to first define the term, before legislating the actual prohibition. Thirty-two years have passed and Congress continuously refuses to define the term. That’s expected because congressional and local government positions have been held continuously by political dynasties like the Belmontes of Quezon City, the Eusebios of Pasig, the Cayetanos of Taguig and the Binays of Makati.

The ConCom was headed by ex-Supreme Court (SC) Chief Justice Reynato Puno, the assistant solicitor general when Estelito Mendoza was solicitor general. Together with Mendoza, Puno relentlessly defended the martial law regime. After the 1986 EDSA uprising and despite his close association with the Marcos administration, Puno managed to get re-appointed to the Court of Appeals by President Corazon Cojuangco Aquino.

The 22 members of the ConCom include retired SC Associate Justice Eduardo Nachura and ex-Sen. Aquilino Pimentel Jr. The other members of the committee are either relatively inconsequential or are unknown to the public.

In July 2018, the committee produced a draft charter ordaining a federal government. There are, however, problems concerning the draft.

Critics lamented that the ConCom did not conduct sufficient consultations among the people. Local government assemblies and universities were apparently not in the consultation list.
Likewise, the draft creates four supreme courts, each specializing in a legal field and regional supreme courts. A complicated judicial system like that will make justice more inaccessible to poor litigants.

The draft charter also calls for more legislators in both the federal and the regional levels. This will mean a more bloated bureaucracy and more politicians feasting on the national treasury. It will inevitably trigger more taxes for the already overburdened Filipinos.

A disturbing feature of the draft is that once Federalism is instituted in the Philippines, there is absolutely no turning back — the government will remain federal in character permanently, like that of the United States.

The draft charter was eventually submitted to President Duterte who, in turn, endorsed it to Congress, which has the power to modify, overhaul or even reject the draft. Whatever “final draft” Congress may ultimately approve will be subject to ratification or rejection by the electorate in a national plebiscite.

Six months have passed since and Congress has not acted on the draft. Surprisingly, the House of Representatives, on the urging of Speaker Gloria Macapagal-Arroyo, drafted and approved its own proposed charter.

There are indications that the House draft will be sent to the Senate, unless Rep. Edcel Lagman will again insist that the House can pursue cha-cha independently of the Senate. That alternative is unconstitutional. If both houses of Congress must vote together to rename a national road, with greater reason should both houses vote together to propose a new Constitution.

From all indications, both the draft of the Puno committee and the House draft will go nowhere.

The House draft has an expiration date – 30 June 2019, when the 17th Congress will cease to exist. Under the rules, any business that has not been acted upon by the House after that date is deemed legally inexistent.

Senate President Vicente Sotto III said that the 17th Congress will be in session from 14 January to 14 February 2019 and for two weeks before the May 2019 elections. That isn’t enough time for the Senate to thoroughly deliberate on both drafts.

Even assuming that the Senate concurs in one of the two draft charters, the final draft will still have to be submitted to a plebiscite. The 1987 Constitution mandates that the plebiscite shall be held not earlier than 60 days or later than 90 days after the draft charter is approved by Congress sitting as a constituent assembly.

In theory, therefore, if the plebiscite is to be held simultaneously with the May 2019 elections, the draft charter must be approved by Congress not later than the middle of February 2019. That means the Senate has from 14 January to 10 February 2019, or just 28 days, to decide if cha-cha is needed and which of the two drafts to approve and submit to the people in the plebiscite.

Do the maths: Two draft charters, no plebiscite.

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