The race to amend the Fifth Republic out of existence

14 min readFeb 5, 2024

About to succeed, or petering out? The Jury’s out. But why?

My most recent three columns trace the zigzagging of the Senate as it tries to worm its way out of extinction as well as the other dynamics that makes the push for amending the Constitution perhaps more serious than previous ones.

I kicked-off the series by looking at the chances of prospective candidates for the Senate in the 2025 midterms. The administration, of course, needs to cement control; the problem being, that the ruling coalition has split, and in that split, the Duterte-turned-opposition has more viable senatorial candidates than the administration itself, or the old middle forces opposition. The Dutertes also have the most viable presidential candidate for 2028.

The Senate, then, is a problem. Not least because time has eroded its ability to function as intended, a process that I have traced back to the 1950s as the assumptions governing a nationally-elected senate have been eroded over the decades since. With money and celebrity counting more than parties, the composition of the senate has increasingly lost its ability to do what it was intended to do. This is on full display now, as the Senate faces one of the most serious challenges to its existence -and has found itself outmaneuvered in some crucial respects.

Time, however, may have run out for the most ambitious bid to dissolve the Senate before the midterm preparations kick in, naturally ending efforts to change the system.

1. Up for grabs

THE LONG VIEW

Philippine Daily Inquirer / 04:30 AM January 17, 2024

Just as we Filipinos like to compliment ourselves for trailblazing people power, we have taken in recent years to giving ourselves backhanded compliments, for anticipating the populism of Donald Trump, for example, and, it seems, for showing the way forward for the political “nepo” baby boom: it might have taken 36 years for Marcos II to rehabilitate Marcos I, but in doing so, Filipinos could claim to have paved the way for Hun Manet to replace his father Hun Sen in 2023; while in Indonesia, a mere 16 years after the death of ex-dictator Suharto, his (former) son-in-law, Gen. Prabowo Subianto, himself a controversial general in the past, is poised to be the next president.

His running mate is Gibran Rakabuming Raka, the eldest son of the current President, Joko Widodo: originally too young to qualify for office, the constitutional court of Indonesia ordered an exception to permit the President’s son to run. That the same court also happens to be headed by the uncle of the candidate, doesn’t seem to have caused the firestorm of controversy one might expect, with one academic commentator suggesting that for (some) young Indonesian voters, not only is Prabowo’s past record no longer an issue (“They answer that these kinds of issues are ‘your issues,’ these are the older generations’ issues”), but that the exception isn’t considered exceptional by the same voters (“that these kinds of practices actually are common — it’s not the special case”).

Mass audiences the world over, and by extension, the mass of voters, both of which happen to be young, seem comfortable with familiar names and keeping fame and money within the same familiar families. The formerly controversial can be repackaged by means of social media: attacks on the basis of the past lose their punch in the wake of a steady stream of TikTok videos featuring Prabowo posing with cuddly cats and making finger-heart signs like a harmless grandfather. Not so, however, for political parties, with established ones falling by the wayside as others formerly considered fringe groups excite new and old voters alike.

A December Pulse Asia survey looking at the names that might make it to the Senate if elections had been held then, allows us to look at ourselves in a kind of electoral mirror. The first 19 who have a strong chance of making it starts with Erwin Tulfo on top, followed by Tito Sotto, Bong Go, Pia Cayetano, Bato dela Rosa, Isko Moreno, Imee Marcos, Ping Lacson, Manny Pacquiao, Willie Revillame, Doc Willie Ong, Lito Lapid, Bam Aquino, Bong Revilla, Paolo Duterte, Kiko Pangilinan, Leni Robredo, Gibo Teodoro, and Francis Tolentino. A dozen of these are incumbent or past senators; Moreno, Ong, and Teodoro, are former senatorial candidates; and significantly, two (Go and Bato) may be joined at the hip with the former president, Duterte (three, if you include his son Pulong; his other son, Baste, comes in 20th right outside the “magic circle”), but an equal number are from the old middle forces he supposedly permanently supplanted: no less than an Aquino, plus Kiko and Leni.

Outside the “winningest” 19 come veteran names whose residual standing makes them viable candidates still: 21–23 are Dick Gordon, Mar Roxas, Sonny Trillanes, and Gringo Honasan; it might be more of a stretch for those who come last in the Dec. 3–7 list: Herbert Bautista, Ralph Recto, Frank Drilon, Gen. Guillermo Eleazar, Mike Defensor, and Abby Binay. But even here, the field among the still-viable, is dominated by former senators, and logically so: aside from people in media and entertainment, only senators have access to a national audience.

The question, as this year takes us closer to the 2025 midterms, is what the Marcos administration will do, now that it can arguably claim to represent the political center. We already know that, as the old center did, it is open to (and, in fact, has quietly and effectively concluded) an alliance of sorts with radicals in Congress. Now occupying a new center, does it now have more in common with the old center? If so, it can remain true to form (claiming to be devoted to national unity) while continuing to push its former coalition partners, the former presidents Gloria Macapagal Arroyo and Rodrigo Duterte, further and further to the periphery of our mainstream politics. The language of development comes more naturally to unity candidates, for example, than it does to candidates who need to have law and order at the heart of their agenda — to justify their extremist language and behavior.

So make three columns: the Marcos coalition (the administration); the Duterte-Arroyo coalition (the new opposition); where does that leave, everyone else?

2. To the brink and beyond

THE LONG VIEW

Philippine Daily Inquirer / 04:35 AM January 24, 2024

After the pandemic, Senate President Juan Miguel Zubiri abandoned showing his age and reverted to dyeing in aid of a youthful look in time to be reelected. Certainly, it seems to have surprised many that, after it seemed the Senate had been outmaneuvered by the House of Representatives, the upper house managed to call the bluff of the lower house.

What happened was this. It began with a rush job. The constitutional commissioners appointed to draft the 1987 Constitution seemed inclined to revisit the 1973 Charter and put in place a unicameral legislature. But in the end, by a single vote, a bicameral Congress was decided. The thing was, as the late Fr. Joaquin Bernas wrote, the commission forgot to revisit the provisions already drafted with a unicameral legislature in mind. Result? The 1987 Charter as approved, has a bicameral system with unicameral provisions.

It remains problematic how Congress can proclaim itself a constituent assembly when it wants to devote itself to proposing an amendment for ratification by the people. To cut a long debate short, the provision is written as if there was only one chamber; it does not, as it ought to, specify that each chamber should convene, vote separately, and only if both chambers reach a threshold, then propose an amendment to the people for approval in a plebiscite. This means representatives have long argued that each chamber may follow its own rules in deciding to tackle amendments but once they sit together, the two chambers essentially merge into a superchamber. Senators, of course, disagree.

In the past, this disagreement meant talks would often collapse because it meant bringing in the Supreme Court which was widely expected to rule based on common sense: a bicameral legislature must always act in a bicameral manner. But over time, the Senate seems to feel it’s on increasingly shaky ground because, as the saying goes, it turns out common sense is less common than you think. I’ve heard one senior ex-senator opine about how humiliating it would be to run to the Supreme Court only for it to slit the throat of the Senate.

Which brings us to the here and now. I’ve repeatedly pointed out a basic fact: the first majority mandate in over a generation and under this Constitution, especially when widely understood as a repudiation of the people power era itself, certainly arms the current administration with the political legitimacy to propose a new political system or fundamentally amend the existing one. Rodrigo Duterte had a mandate smaller than everyone except Fidel Ramos but such was the impact of his candidacy that it seemed that a new constitution was inevitable-except that his own economic team vetoed it. Now the Speaker of the House wants it and explored every method to go about it.

Including the one no one wanted to try, because it’s the messiest and possibly, the most expensive, time-consuming, and unpredictable, even though it’s the one method the public has always said it finds most acceptable: a constitutional convention. This one petered out, fast, for now. Then the formerly extinct method of a people’s initiative, where the public itself proposed amendments, was revived, in this post-pandemic “ayuda” era, where record-keeping and grassroots management and communication have been significantly refined, few doubt the small percentages required per legislative district to kick off the process are within easy reach.

It goes without saying that for things to accelerate this quickly also implies that in the view of those behind it, the move will likely receive the kind of scrutiny they approve of, from the Supreme Court. If that’s the case, the Senate runs an even greater risk of being defeated before it can even fight for its life.

But the Senate found a way back and it was by means of a bold gambit: proposing a constituent assembly, but strictly on terms favorable to itself, institutionally: it will have to be a joint session, with each chamber voting independently, and passing the proposals by the required majority for each. And only when it comes to the economic provisions of the Charter. These are, actually, the proposals that have gotten as close to a public consensus as can exist. Businessmen want it. Both chambers want it. The President wants it. It accomplishes Charter change purged of the political changes. Zubiri and the other senators become the key to giving the President what he needs-something big, and something unprecedented-faster, cheaper than the House version.

3. Getting taken for a ride

THE LONG VIEW

Philippine Daily Inquirer / 04:30 AM January 31, 2024

Poised to sign the 2024 national budget, President Marcos intoned that “this budget is more than a spreadsheet of amounts … Rather, it details our battle plan … It funds the elimination of the problems [our country] must overcome … its fine print bankrolls the realization of our dreams writ large.” The usual suspects-representatives and senators alike-smiled and clapped, but it seems the House is poised to have the last laugh as its dreams are finally fulfilled.

The 2024 General Appropriations Act (GAA) contained, within its “spreadsheet of amounts,” two provisions tailor-fit to achieve the unicameral, parliamentary dreams of the House and its leadership. A seasoned budget watcher laid them out for me in this manner. First, “With a promise of a substantial share in the unprecedented P500 billion social amelioration fund or ‘ayuda’ in the 2024 GAA for each district, the legislators have worked hard and fast to collect the minimum 3 percent signatures/district and 12 percent nationally.” In layperson’s terms, having refined the giving of “ayuda” to the electorate during the pandemic, no one batted an eyelash over half a trillion pesos being earmarked for that purpose: undebatable, untraceable, near-instant (once authorized for release by the President). It’s P500 billion’s worth of carrots to inspire signing on to a people’s initiative.

Second, “The funding for the plebiscite has already been secured when P12 billion was added during the budget bicameral committee meeting to the P2.2 billion the Commission on Elections (Comelec) requested for plebiscites. Apparently, the senators were not aware of this.” Again, in layperson’s language: if the incentive (ayuda which loyal legislators can partake of, to gift to their constituents, so long as the President approves) was built-in to the budget, so was the means to deprive the Senate of its own built-in leverage in any squabble with the Senate. By hiding a budget for a constitutional plebiscite in the budget, once a people’s initiative is approved, it can automatically be scheduled for a plebiscite, because the money, by means of an item inserted in the bicameral conference committee, is there.

The starting gun and the finish line tape, then, were already in place before the Senate even got around to realizing it was being taken for a ride. It has engaged in a collective protest and insisted on getting off the Charter change train after it thought it had cleverly called the House of Representatives’ bluff, by saying it was prepared to deliberate on amending the Constitution so long as each chamber voted separately in a constituent assembly that wouldn’t consider amending political provisions. By that time, however, as more than one crowing congressman had declared, the signatures had already been gathered and were soon going to be shown to the Comelec.

In contrast to past Charter change efforts back in the old days when even politicians thought that media, civil society, and the clergy conferred legitimacy, this time around things were done with foresight, discipline, and resolve. The Senate, which even its defenders have to admit, is a living demonstration of how celebrity and money trump competence, couldn’t even detect that the game it was playing was being rigged under its own nose.

To be sure, there can still be a showdown before the Supreme Court, and the window for accomplishing amendments is only open until July of this year. After that, if an amendment isn’t approved, the political class as a whole will have to prepare for the midterms based on the current rules, which effectively means the Charter will survive intact until 2028. Senators, the clergy, civil society, and the remnants of the 1983–1986 Middle Forces (plus the Dutertes!) have to get together and, more to the point, convince a majority of justices to retain the status quo: something easy enough to do, if and only if, enough of them are either statesmanlike or selfish enough (either attitude works) to thwart an amendment.

But we are living in the eighth year of an era premised on the repudiation of not just the Aquinos but people power and the institutions it created. One person complained to me that government workers were inspired to attend the recent “Bagong Pilipinas” rally with this love offering: 1.5 leave credits, 1 piece Chicken McDo, and a loot bag. To which I replied, see the attention to detail? No cash! In the old days, the complaint was, “outgunned, out-gooned, and out-gold.” Add to that the emerging Bagong Pilipinas mantra: “Outsmart.”

4. Postscript: Gimme That Ole Time Religion and other Civil Society Stories

I. Preservationists

The “preservationist” point of view is best articulated by former Constitutional Commission member Christian Monsod, writing last to a leading Catholic prelate:

I write to call your attention on a proposal to amend the Art XVII, Sec. 1 of the Constitution via a People’s Initiative by adding to it to read:
“The Congress upon a vote of three-fourths of all its members VOTING JOINTLY UPON THE CALL OF THE PRESIDENT OF THE SENATE OR THE SPEAKER OF THE HOUSE OF REPRESENTATIVES.”
The House is behind this move. It is resorting to this amendment because the House has been unable to get the % vote of the Senate for a constituent assembly nor its 2/3 vote to call for a constitutional convention.
This proposal for a People Initiative will disempower the Senate because its 24 senators will just have one vote each like the 316 congressmen. And it violates the system of checks and balances which is not only about the three departments of government but also within the Legislature.
This proposal will give the House total control of the constituent assembly.
The amendment by Pl of Art XVII Sec. 1 (1) seems innocuous but it has dangerous consequences to our democracy. It must be stopped and right away before it becomes a done deal. The move was apparently a surprise to the Senate and a Statement is forthcoming.
But, from my sources, the congressmen are already campaigning at the ground and organizing mayors and barangays with a target date of January 13 to get at least 3%
of the registered voters in each congressional district to sign the Peoples Initiative.
We must tell the people NOW through our parishes and our NGOs NOT to sign and thereby sell our future. It is worth more than any amount they are offered.
BY WAY OF BACKGROUND:
Under Art. XVII, there are 3 ways to change the Constitution:
(1) by a vote of three fourths vote of all its members (a constituent assembly), (2) by a constitutional convention called by the Congress (by a vote of two-thirds of all its members), and (3) by a peoples initiative (although limited to amendments).
The Constitutional Commission has admitted to the oversight of not specifiying that the vote should be separate in par. 1 and par. 2 of Art. XVII. However, both the Senate and House have agreed for several years to interpret both (1) and (2) as separate vote. In fact, par. 145 of the Rules of the House affirms that interpretation.
Since a constituent assembly can revise, amend, and even write a new constitution, my reading of the possible changes based on the six proposals we have been able to stop namely Ramos Pirma, Estrada Concord, Arroyo’s (1) Sigaw ng Bayan (peoples initiative), (2) joint vote of a constituent assembly, the JR 1 of Congress and Duterte’s Puno Committee constitution, the following may be part of the agenda of charter change by a ConAss controlled totally by the House
1. more authoritarian powers to the president such as to proclaim martial law
2. aligning Bill of Rights to the Anti-Terrorism Law
3. change in terms of office for everybody of 5 years with one re-election (proposed by the House in 2023)
4. Adding the phrase “unless otherwise provided by law” in the economic provisions thus rendering meaningless the constitutional provisions
5. A shift to a federal parliamentary system that will give more power to the dynastic clans in the regions
6. A hidden agenda to amend the provisions of the Art VI (such as Sec. 25) to remove the limitations on the budgetary powers of the Congress re contingent, intelligence, confidential, unprogrammed funds.
7. Transitory provisions as proposed by the Puno Committee that gives absolute powers to a transition government which can take about 10 years (according to fmr UP president Abueva who advocates federalism) before the regions and local government have the capacity to govern.
Instead of these constitutional changes, why not legislation to protect our environment from mining? A mining reform law has been killed by Congress at the Committee level under the Aquino and Duterte administrations.
Why not an anti-dynasty law which the Congress has not done in 36 years or amendments to the party-list law that is open to use and abuse by politicians?
Why not legislation on electoral reforms on the quality of the system and quality of the vote?
Why not fulfill the promises of EDSA of a real democracy and social change?
END
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