Do's and Don'ts of “System Change”
“System
Change” is the transformation of the fundamental structure of the state, that
is usually linked to politics and the economy.
[i]
It involves revolutionary changes in the structure of government and the key
economic policies. It usually includes major revisions of the constitution and
the laws.
“System
Change” becomes imperative when the existing system fails to generate jobs for
the poor, protects the monopolies of the rich, enables family dynasties to
rule, manufactures election results, institutionalizes graft and corruption,
perpetrates selective justice, rewards criminality, distorts history to hide
the ugly truth, and closes avenues for genuine reform.
To ensure
that “System Change” leads to meaningful social transformation, these
guidelines are suggested to assist the people and their delegates in reaching a
general agreement, on which structures and policies to change in order to
promote the general welfare and ultimately the common good.
The
suggested Do's and Don'ts are as follows:
1.
DO discuss proposed changes in orderly manner,
2.
DO focus discussions on structural and policy
issues that matter,
3.
DON'T divert discussions to peripheral issues
that don't matter,
4.
DO use available language when general agreement
is reached,
5.
DON'T use new language unless necessary,
6.
DO consult lawyers and English scholars to
review language,
7.
DO record discussions for future reference.
While the
subject of “System Change” includes both the constitution and the major
statutory laws (such as the Local Government Code and the Organic Act for the
Autonomous Region in Muslim Mindanao), these guidelines discuss only the
constitution for brevity.
1.
DO discuss proposed changes in orderly
manner.
Meetings
of importance always have an agenda. Otherwise, everyone will rise to take the
floor and talk about his or her own favorite topic. When the meeting adjourns,
no one present will know what it was all about. This is so regardless of
whether the meeting is physical in a town hall or board room, or virtual in
cyberspace.
Accordingly,
it is elementary that serious discussions about “System Change” must begin with
an agenda. Anyway, if the majority of the participants do not like the agenda
presented, they are free to change it.
Regarding
the agenda for discussion, this paper recommends for adoption the content
outline of the 1973 Constitution as the agenda items for any serious forum on
“System Change”. Why? It is because the 1973 Constitution covers the basics
with short and simple statements. Moreover, it is the ONLY Philippine
Constitution drafted by ELECTED delegates INDEPENDENT of the authority of a
foreign power.
The 1973
Constitution consists of a Preamble and 17 Articles, i.e. National Territory,
Declaration of Principles and State Policies, Citizenship, Bill of Rights,
Duties and Obligations of Citizens, Suffrage, President and Vice-President,
National Assembly, Prime Minister and Cabinet, Judiciary, Local Government, Constitutional
Commissions, Accountability of Public Officers, National Economy and the
Patrimony of the Nation, General Provisions, Amendments, Transitory Provisions.
The Preamble
and 17 Articles make a total of 18 subjects outlined for discussion.
If participants
want to omit certain subjects from the outline, let them explain.
If
participants want to add new subjects to the outline, let them explain.
If
participants want a totally different outline with nothing in common with the
18 subjects for discussion, let them explain.
If
participants want an “uncodified” or “unwritten” constitution, just like in the
United Kingdom, let them explain.
2.
DO focus discussions on structural and
policy issues that matter.
The
ultimate purpose of “System Change” is to improve the lives of the people and
change the economy and politics for the better. Accordingly, we should focus
our energies on issues that matter. These are the changes that promise to make
tectonic shifts in society.
This
paper believes that the structural and policy issues that matter include the
following:
1.
Proposed liberalization of restrictions on foreign investments; the proposition
seeks to generate jobs for the poor through massive capital infusion; it also
seeks to dismantle the monopolies of the rich through open competition;
finally, it seeks to dismantle the cartels of government suppliers and
contractors through the entry of new independent players;
2.
Proposed shift from the “presidential form” of government to a “parliamentary
form”; in other words, the shift from “individual rule” to “collective rule”;
the proposition seeks to loosen the grip of oligarchs over the national
government; it also seeks to establish a lean but strong national government;
3. Proposed
shift from the “mayor type” of local government to a “council type”; in other
words, the shift from individual rule to collective rule; the proposition seeks
to loosen the grip of family dynasties over local governments in the provinces,
cities and municipalities; it also seeks to establish lean but strong local
government units;
4. Proposed
shift from a “unitary state” to a “semi-federal” or “federal state”; in other
words, regional decentralization through regional authorities, autonomous
regions or sub-states; should regional decentralization be applied to all
regions or only to certain regions such as the Muslim dominated areas in
Mindanao and the Cordilleras? if applied to all regions, should a uniform
structure be adopted, or should we allow different structures to be adopted in
different regions; the proposition seeks to empower the regions to develop
their respective economic strengths;
5. Proposed
legal recognition of the Southern Sultanates, without vesting them with
government powers, just like in the United Kingdom and Japan; the proposition
seeks to reverse the suppression of a cultural heritage and legitimate social
institution; it also seeks to strengthen the legal standing of the Sultanate of
Sulu to negotiate improved proprietary compensation from Malaysia for the
possession of Sabah.
Among these
issues, this paper believes that the proposed liberalization of restrictions on
foreign investments is the most urgent. Why? It is because this particular
proposition has direct and immediate consequences on job generation and poverty
alleviation.
Notably, it
takes about Php190,000.00 to employ one rank-and-file employee for one full
year in Makati City.
[ii]
This estimate includes the applicable daily minimum wage and benefits, social
security and the proportionate cost of modest office space and utility charges
used for the employee. On the other hand, it takes about Php100,000.00 to
employ one employee for one full year in Region I which has the lowest daily
minimum wage rate.
[iii]
Out of the
estimated population of 101,802,706 for 2015,
[iv]
some 41,322,000 (41%) are in the labor force.
[v]
Out of the labor force, some 2,483,000 (6%)
[vi]
are unemployed
[vii].
If we
multiply the number of workers unemployed (2,483,000) by the lowest estimated
cost of employing one worker for one year (Php100,000.00), we have the
staggering amount of Php248,300,000,000 representing the total cost required to
employ all the unemployed for just one year.
Where will
we get that kind of money? From the government? The oligarchs? The family
dynasties?
Besides, there has apparently been no empirical data
showing that the foreign investment restrictions spread throughout the legal
system to protect the business interests of the local elite actually promote
the national interest.
In the
construction industry for example, where the government regulator (Philippine
Contractors Accreditation Board) continues to impose the 60% nationality
requirements
[viii]
even in the absence of constitutional or statutory bases
[ix],
the Department of Labor and Employment (DOLE) reports that only about 26.86% of
the industry players pay the applicable minimum wage, while only about 43.89%
of them comply with the occupational safety and health requirements
[x].
Are these the kind of business entities that deserve government protection
against foreign competitors? Are we not supposed to protect the Filipino
workers instead by allowing the entry of new business competitors so that the
workers have a wider choice who to work for?
Another
example is the mining industry where there is large scale mining and
small-scale mining. In large scale mining, foreign investors are allowed under
financial and technical assistance agreements, or as minority 40% shareholders
in mining companies.
[xi]
In small mining, only Filipino investors are allowed to the full extent of
100%.
[xii]
In any case, based on available data for 2015, the Department of Environment
and Natural Resources (DENR) reports that while only about 2.2%
(or 22 out of 999) of large scale mining
companies nationwide have suspension orders
[xiii],
about 10.45% (or 14 out of 144) of the small-scale mining companies have cease
and desist orders in the CALABARZON area. Thus, there is really no assurance
that the Filipino nationality of business enterprises engaged in mining result
in better protection of the Philippine environment.
The
controversial restrictions on foreign investments have been in our constitution
for the past eighty (80) years since 1935. Are we supposed to wait for another
eighty (80) years to see if these restrictions actually benefit the greater
majority of our people?
We can learn
from the United States on how to deal with foreign investors. They have an
inter-agency mechanism that screens foreign investments to protect their
national security
[xiv].
In 2006, the Government of the United States used this screening mechanism to
block the acquisition of Sequoia Voting Systems of California by the
Venezuelan-owned Smartmatic International.
[xv]
Here in the Philippines, the same Smartmatic International has already taken
technical control of our automated elections for the years 2010 and 2013.
Election reform advocates continue to be helpless in holding this Venezuelan
company to account for the disablement of various system safeguards.
3.
DON'T divert discussions to peripheral
issues that don't matter.
The
real challenge of “System Change” lies in facing head-on the structural and
policy issues that matter. Other matters short of the major structural and
policy issues are merely peripherals. They serve no purpose except to divert or
dilute the focus of the people and their delegates.
For
example,
Article II of the 1987 Constitution already declares as state policy the
promotion of social justice
[xvi],
the respect for human rights
[xvii],
the primacy of education
[xviii],
and the protection of the family
[xix].
Apparently not content with these declarations, the framers proceeded to
incorporate entirely new Articles on Social Justice and Human Rights
[xx],
Education
[xxi]
and Family
[xxii].
Did these
new Articles add anything not covered or justified by the basic declaration of
state policy? Did these new clauses improve our lives? The answer is obviously
in the negative.
It is bad
enough that the framers failed to address the more important structural and
policy issues that would have improved our economy and politics. It is worse
that they instead gave us an illusion of a better life, writing lengthy but
empty statements that add nothing to what we already have.
4.
DO use available language when general
agreement is reached.
Crafting
new language, even though existing language is available, is like re-inventing
the wheel. It is a waste of time.
Moreover,
new language brings with it judicial uncertainty. While the meaning of past and
present language may have been settled by the courts already, new language is
still open to future judicial interpretation.
Notably,
we do not exist in a vacuum. We have a wealth of organic acts, both past and
present, that may provide suitable templates for the appropriate language.
These organic acts are as follows: 1899 Malolos Constitution (establishing a
parliamentary system), Philippine Bill of 1902 (establishing a municipal
government), 1935 Constitution (establishing a presidential system), 1943
Constitution (establishing a presidential system), 1973 Constitution
(establishing a semi-presidential system), 1973 Constitution as amended in 1976
(establishing a supra presidential system), 1986 Constitution (establishing a
revolutionary government), and 1987 Constitution (establishing a presidential
system).
For example,
if the general agreement were to establish a presidential form of government,
we can use as template either the 1935 Constitution, 1943 Constitution or the
1987 Constitution. We can also refer to the 1787 Constitution of the United
States as additional material. If the general agreement were to establish a
parliamentary form of government, we likewise have a ready template in the 1899
Constitution, and some reference to the parliamentary features of the 1973
Constitution.
5.
DON'T use new language unless necessary.
The
exceptions that may justify efforts at crafting of new language are when the
existing language is erroneous, vague, or of a policy that needs to be modified
or reversed, or when there is no precedent available.
For example,
the 1973 Constitution defined national territory to include “other
territories belonging to the Philippines by historic or legal title”. The
definition was a deliberate modification of the old definition under the 1935
Constitution which included only “all territory over which the present
Government of the Philippine Islands exercises jurisdiction”.
The
apparent purpose of the modification under the 1973 Constitution was to
strengthen the sovereign claim of the Philippines to the territory of Sabah
based on historic or legal title.
Notably,
former President Marcos laid claim to the Kalayaan Group of Islands in the
South China Sea (now West Philippine Sea) based also on
history, among
other grounds, pursuant to the modified definition of territory under the 1973
Constitution.
[xxiii]
Moving
forward to the 1987 Constitution, the framers this time reduced the coverage
and weakened the basis of the nation's territorial claim, purportedly to
improve relations with Malaysia. In return, Malaysia was expected to take
favorable action on the proprietary claim of the Sulu Sultanate for adjustment
of the yearly compensation due from the former's possession of Sabah.
Twenty-eight
(28) years later today, the Sulu Sultanate continues to complain that Malaysia
has ignored their proprietary claim.
To remedy
this anomaly, we will need to change the present definition of national
territory and revert back to the language of the 1973 Constitution. This will
give both the Philippines and the Sulu Sultanate a stronger legal position to
negotiate for what is due from Malaysia.
A tabular
comparison of the different definitions of national territory follows for
reference:
|
1935 Constitution
|
1973 Constitution
|
1987 Constitution
|
|
Article I, Section 1. The Philippines comprises all the territory ceded to the
United States by the Treaty of Paris concluded between the United States and
Spain on the tenth day of December, eighteen hundred and ninety-eight, the
limits which are set forth in Article III of said treaty, together with all
the islands embraced in the treaty concluded at Washington between the United
States and Spain on the seventh day of November, nineteen hundred, and the
treaty concluded between the United States and Great Britain on the second
day of January, nineteen hundred and thirty, and all territory over which
the present Government of the Philippine Islands exercises jurisdiction.
(emphasis supplied)
|
Article I, Section 1. The national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein, and all
the other territories belonging to the Philippines by historic or legal title,
including the territorial sea, the air space, the subsoil, the sea-bed, the
insular shelves, and the submarine areas over which the Philippines has
sovereignty or jurisdiction. The waters around, between, and connecting the
islands of the archipelago, irrespective of their breadth and dimensions,
form part of the internal waters of the Philippines. (emphasis supplied)
|
Article I. The national territory comprises the
Philippine archipelago, with all the islands and waters embraced therein,
and all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial and aerial domains,
including its territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas. The waters around between, the connecting the
islands of the archipelago, regardless of their breadth and dimensions, from
part of the internal waters of the Philippines. (emphasis supplied)
|
Another
example, the 1987 Constitution declares the principle that “
sovereignty
resides in the people and all government authority emanates from them.”
(emphasis supplied)
[xxiv]
Curiously however, the same Constitution thereafter declares that the goal of
the Armed Forces of the Philippines “is to secure the
sovereignty of the
State and the integrity of the national territory.” (emphasis supplied)
[xxv]
So where does
sovereignty reside now? in the Filipino people comprised of 100 million natural
persons? or in the Republic of the Philippines which is a juridical person that
exists solely by legal fiction?
There is an
obvious error here by the framers that can only be rectified by using new
corrective language. If the term is used as a noun, then yes sovereignty
resides in the people. If however the term is used as an adjective, then
that is when we say that our country is a sovereign state.
Still
another example, the 1987 Constitution apparently sought to carry over
the past prohibition against foreign ownership of land. Unfortunately for the
framers, they crafted new language even when they could have adopted the old
language under the 1973 Constitution.
A comparison
of the relevant constitutional provisions follows:
|
1973 Constitution
|
1987 Constitution
|
|
Section 8. All lands of public domain, waters,
minerals, coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of agricultural,
industrial or commercial, residential, or resettlement lands of the public
domain, natural resources shall not be alienated... (emphasis supplied)
|
Section 2. All
lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources are owned by
the State. With the exception of agricultural lands, all other natural
resources shall not be alienated... (emphasis supplied)
|
|
Section 9. The disposition, exploration,
development, exploitation, or utilization of any of the natural resources
of the Philippines shall be limited to citizens of the Philippines, or to
corporations or associations at least sixty per centum of the capital which
is owned by such citizens... (emphasis supplied)
|
Section
2... The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State.
The State may directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. (emphasis supplied)
|
|
|
Section
3... Private corporations or associations may not hold such alienable
lands of the public domain except by lease, for a period not exceeding
twenty-five years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the Philippines may
lease not more than five hundred hectares, or acquire not more than twelve
hectares thereof by purchase, homestead, or grant.
|
|
Section 14. Save in cases of hereditary succession, no
private land shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or
hold lands of the public domain. (emphasis supplied)
|
Section 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except to
individuals, corporations, or associations qualified to acquire or
hold lands of the public domain. (emphasis supplied)
|
Thus, under
the 1973 Constitution, it was clear that private land may be transferred only
to Filipinos or corporations owned 60% by Filipinos, because they were the only
persons qualified to acquire or hold lands of the public domain.
On the other
hand, under the 1987 Constitution, it is unclear if private land may be
transferred only to corporations owned 60% by Filipinos, because Section 3 does
not say so, and Section 2 apparently refers to mining rather than to the
acquisition of lands of the public domain.
There is
another lapse here by the framers that can only be corrected by using new
clarificatory language.
For the
record, this paper does not believe that the various constitutional
prohibitions against foreign direct investments promote the national interest.
Anyway, this particular belief is beside the point here. This example is made
to show that using new language, despite the availability of existing language,
may actually result in ambiguity.
6.
DO consult lawyers and English scholars
to review language.
Whether
we like it or not, the constitution is a legal instrument. In fact, it is no
ordinary legal instrument. It is the highest or supreme law of the land. All
other statutory laws, implementing rules and regulations, administrative orders
and local ordinances will be null and void if these instruments contradict the
constitution.
Accordingly,
since the constitution is a legal instrument, it is only prudent that the
people through their delegates seek the assistance of lawyers in writing or
reviewing the language intended to express what has been agreed upon.
Apart from
the lawyers, it is also useful to seek the assistance of English scholars,
assuming that the constitution will be written in English. They can help much
in simplifying the otherwise lengthy and winding language of lawyers. English
teachers make good English scholars.
7.
DO record discussions for future
reference.
If the
process of constitutional reform is by constitutional convention, constituent
assembly or constitutional commission, the deliberation of delegates and hearing
of resource persons are documented in due course. If however the process is by
people's initiative, there are no fixed rules on documentation. It is here in a
people's initiative that extra effort is required to document the process.
If apart
from face-to-face interaction, the people's inputs are also sought directly
through social media, then the delegates or proponents must also find
innovative ways and means to document the exchange views and information.
We must
remember that the constitution is a legal instrument. In case of conflicting
interpretations, the courts will resolve the conflict by reviewing the records
of deliberations and hearings, among other ways and means. If there are no such
records, then it is possible that the courts will reach a conclusion much
different from that intended by the framers.
This material was written ex-gratia
by Demosthenes B. Donato
for Tanggulang Demokrasya
(Tan Dem), Inc.
All intellectual property rights
are granted to the public domain.
10 September 2016. Makati City,
Philippines.
Disclaimer: The views and
opinions expressed in this material are those of the author
and do not necessarily reflect
the official policy or position of TanDem.
[ii]The
figure is based mainly on the minimum wage under Wage Order No. NCR-20, the
applicable social security premiums and the estimated cost of office space and
utilities.
[iii]The
figure is based mainly on the minimum wage under Wage Order No. RB1-16, the
applicable social security premiums and the estimated cost of office space and
utilities.
[viii]PCAB
Revised Rules and Regulations Governing Licensing and Accreditation of
Constructors in the Philippines dated 31 March 1989, Rule 3, Sec. 3.1.
[ix]
SEC Opinion dated 18 April 2001 re
construction activity. Exec. Order No. 184, Tenth Regular Foreign Investment
Negative List, 29 May 2015.
[x]
DOLE-BWC letter of 17 October 2011.
[xi]1987
Constitution, Article XII National Economy and Patrimony, Sec. 2.
[xii]Rep.
Act No. 7076, People's Small-scale Mining Act of 1991, Sec. 3(c).
[xiii]DENR-MGB
Letter of 04 March 2016. MGB Regional Office No. IV-A CALABARZON, List of
Operators for 2014. MGB List of Orders for 2015.
[xiv]See
US Defense Production Act of 1950, as amended by FINSA, Section 721 (50 U.S.C.
App. 2170). Executive Order No. 11858 (as amended by Executive Order No.
13456), re Foreign Investment in the United States.
[xv]http://www.nytimes.com/2006/10/31/us/politics/31vote.html
[xvi]1987
Constitution, Article II Declaration of Principles and State Policies, Section
10.
[xvii]1987
Constitution, Article II Declaration of Principles and State Policies, Section
11.
[xviii]1987
Constitution, Article II Declaration of Principles and State Policies, Section
17.
[xix]1987
Constitution, Article II Declaration of Principles and State Policies, Section
12.
[xx]1987
Constitution, Article XIII Social Justice and Human Rights.
[xxi]1987
Constitution, Article XIV Education.
[xxii]1987
Constitution, Article XV The Family.
[xxiii]Pres.
Dec. No. 1596, Kalayaan Island Group, 11 June 1978.
[xxiv]1987
Constitution, Article II Declaration of Principles and State Policies, Section
1.
