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Nov 21

Designed to fail and failing by design

My column for yesterday was Congressional feeding frenzy.

Rep. Risa Hontiveros-Baraquel of Akbayan sent me a clarification via SMS:

U wrote in ur col abt me “not lifting a finger, constraind as she is by A’s party positn, alignd w/Bayan’s, in favor of d Pres’s BJE-Moa scheme.” Kept lifting not just my finger, but my hand, 2 b recognizd by Defensor 2 speak, but he ignord me 4 d 2nd straight day; sinugod ko sya rt after d hearing 2 say that I was wearing a cloak of invisibility; he apologizd twice 2 me last nt during d plenary. Didn’t vote vs throwing out ur interventn only bec I’m not a mbr of d Justice Com, but I would have if I were. Our positn is not aligned w/ Bayan’s; they suportd d Moa-AD; we crit’zd d proceses atending it n GMA’s Cha2 agenda hitchhiking on it while suporting els of its substance such as d rt 2 self-determinatn.

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(Above: scenes from the Committee on Justice Hearing at the Andaya Hall of the House of Representatives)

Blogger Et Cetera Et Cetera was there, and after the voting took place (see photos above), she mused on what the voting and her previous experiences said of how the odds are stacked against anyone attempting to work for change:

While waiting, I was having slow motion flashbacks of the time when I first started policy research and advocacy work. A few years ago, we were meeting with a group of big businessmen explaining why the Philippine Ports Authority (PPA) should give a rate roll back on cargo handling rates after a series of arbitrary rate increases. We were trying to get them to make a position. So we were there explaining to them that it wasn’t about the rate increases per se but it was more of the fact that the PPA has never followed due process when it comes to cargo handling rate increases. In fact, they only rely on cargo handlers’ claims, which were mostly unsubstantiated, as the only basis for granting rate increases. We also explained that there was a conflict of interest in PPA’s persona being both a regulator and an operator. Why? Because PPA benefits from its own regulation. How? Well once a cargo handler asks for a rate increase, the PPA readily grants it to them because by law, the PPA is allowed to share at least 10% of the cargo handlers’ gross revenues. For international ports, it’s 20%. So if you were PPA, any increase would be beneficial to you, right?

While explaining that to the group, their President at that time asked us, “If we support your call for a rate rollback, how much would that amount to, (meaning how much will shippers save) as opposed to antagonizing the government (PPA)?” We told him that based on calculations that shippers would be saving few millions. Then he goes “So a few millions divided by how many businessmen? That’s not a lot. We’d rather not antagonize the government.” Then we said, but sir, it’s the principles. To which he replied “Principles don’t fly. What’s important are the numbers”. I could not for the life of me believe what I heard. I remember telling myself that I will not let people like him ruin whatever is left of my idealism.

Fast forward to yesterday. I felt sick to my stomach because that’s exactly what happened at the hearing. He was right. Principles didn’t fly. In the end, what was important was the numbers. It was indeed a numbers game afterall.

A fellow intervenor, New Philippine Revolution, explains the intervention from the point of view of Muslims, and also, other people supportive of a peaceful resolution to the causes of conflict in Mindanao.

The news yesterday summarized the events: Arroyo allies go for the kill: House panel quickly junks 3 more impeach raps. Blogger The Warrior Lawyer sees it for what it is: prelude to the throwing out of the impeachment complaint. What’s interesting is the process of elimination, supposed to continue Thursday and conclude Friday, has been postponed to next week.

Why?

It may be that other opportunities presented themselves. This morning the headlines screamed, Arroyo son leads Charter change bid: 150 solons sign on for constituent assembly. This immediately galvanized bloggers like Pinoy Law Student and the Warrior Lawyer who does the political math:

And she would only need 196 signatures, which represent the two-third votes of the combined membership of the Senate (23) and the House (238), should the Supreme Court rule that a constituent assembly (composed of both houses of Congress) would vote jointly and not separately. A friendly SC could pave the way.

This explains the confidence of the President’s son, even as he denied being the ringleader in the House:

Arroyo, however, denied that he was leading the signature campaign, saying he just signed it and discussed it with his colleagues in the House just like any other congressman.

“(I was) one of the signatories. I also asked some of my friends, like Congressman Raul Gonzales Jr, to look into the matter. That is how we are in Congress. We are a collegial body. We try to ask our colleagues who are close to us to look at the issues. There is nothing wrong with that, we are a democracy,” said Arroyo.

Arroyo said the proponent of the resolution calling for a constituent assembly, Kampi president and Camarines Sur Rep. Luis Villafuerte, is the one heading the signature drive. House Speaker Prospero Nograles is also an author of a House resolution seeking to amend the Constitution’s provisions on foreign investments.

At least 163 lawmakers have signed Nograles’ resolution as of Friday morning.

“Hindi ako nagpapaikot niyan. If you look at the paper the main proponents here are Congressman Villafuerte and Speaker Nograles, and this is exactly the same piece of paper that circulated during the time of Speaker (Jose) De Venecia (Jr)… I’m not the one leading it. I don’t even know what level the signatures already,” said Arroyo.

Arroyo said he supports a constituent assembly because he wants Congress to thresh out issues about the Constitution “like scholars,” and dispelled rumors that he wants Charter Change railroaded.

The lawmaker said even if they succeed in calling for a Con-Ass, passing an amendment to the Constitution is still a long way.

“It is just calling for a Con-Ass. At the end of the day it will go back to the people for a referendum,” said Arroyo.
Arroyo said that once the House has mustered support from three-fourths or 175 out of the 238 congressmen and has created a justiciable controversy, they can compel the Supreme Court to decide on whether the Constitution should be amended by joint or separate Congress voting.

So the game plan’s all there, as the game plan’s been widely reported for some time now.

Within a few hours of the news breaking, Ellen Tordesillas was reporting on her blog the House majority was only 15 votes shy of their requirements. As of my writing this, the number of Representatives who’ve signed on to the Constituent Assembly resolution is 167. For the record, RG Cruz saw it coming and warned the public about it.

(This is a good time to review How a bill becomes a law, courtesy of The Manila Times).

The new big push goes against a rather brittle, to begin with, consensus reached in early 2007, that Charter Change was too controversial an effort to undertake for the remainder of the President’s term. That consensus then evolved into an even broader one, to simply let things be, by allowing the President to finish her term in 2010 so long as she didn’t take any overt steps to break that consensus.

That consensus has now been broken (whether or not the administration was serious about it to begin with, after facing a public rebuff in December, 2006, is debatable: some weeks back, The Lonely Vampire Chronicle wrote the Palace game plan’s two-pronged: 1. Charter Change; 2. emergency rule). The biggest obstacle to the ruling coalition’s ambitions -a Supreme Court majority not controlled by the Palace- has been taken care of, and will improve, from the Palace point of view, throughout the coming year. Only once or twice in our modern political history since 1935 has an administration enjoyed such a thorough domination of the Supreme Court. It would be political madness for the administration not to exploit -and continue to exploit- such a tremendous majority.

And there’s something in it for everyone. The President, in many ways, has built up an association with her ruling coalition based on giving her subordinates free rein in their duchies so long as they marshal themselves in her defense whenever her Queendom is threatened. Indeed, there’s something rather Elizabethan about her way of managing things. Two stories will suffice.

Earlier this year, someone told me that a Mindanao mayor recounted to him that the cost of a visitation by the President -and she likes to tour the country and drop in on local executives- was in the neighborhood of 3-5 million Pesos. That’s the cost of the security, housing, feeding, entertainment, etc. that officials have to shoulder, whenever the President and her court descends to show grace-and-favor to a local ally.

Add to this another story, by a former Treasury official, that the President travels with a government checkbook and is in the habit of whipping it out and filling out and handing out checks to officials, when she drops in on them. Among other things, it makes instant reimbursements possible, and the doling out of favors, besides, for project funding, for example. The President’s penchant for check-writing apparently drives Department of Budget and Management officials nuts, since they have to anxiously await the cashing of those checks, to find out how much the President has doled out and find ways to massage the figures into all the other government expenses being incurred.

The President, for her part, has a broad vision of the development of the country and it’s best expressed in this DPWH map:

super regions

But as for what goes on in these broad geographical divisions, she is less concerned so long as it is done by loyal allies. So even as she consolidates, for planning purposes, the national territory, at the same time, the atomization of that territory is taking place with her blessings.

Last last Tuesday, my episode on The Explainer was on the proposed division of Quezon Province. It was a scheme for which the local prelate has taken credit, and in pursuit of which the local Catholic Church has been mobilized. Much confusion has surrounded the plebiscite date, and the question has ended up before the Supreme Court. One of the leading critics of the proposed provincial split is Atty. Sonny Pulgar and three of his blog entries lays out the combination of local and national motivations for the gerrymandering he opposes. See No to Quezon division and Plebiscite Math and QUEZON del SUR: A Leap in Pitch Dark . Most interesting to me is his calculation that in a province with a voting population of 800,000 the fate of the province actually rests on a scant 100,000 voters, the expected turnout in a provincial plebiscite -which of course reduces the whole exercise to a battle of the political machines.

Honing the political machines and subordinating whatever authentic national development plans the administration has, to keeping those machines well-oiled and their leaders content, while starving all opponents, is not new. It’s simply a reality that has to be confronted. A report in Newsbreak: Mayors glad, sad over SC decision voiding 16 cities served to refocus my attention on this point. There’s a merry mix of motives and at times, the political class contradicts itself; but you can be sure that when push comes to shove, they know where their future prosperity lies.

It lies in nurturing -and there is no point nurturing something if you’re not going to trot it out and use it from time to time- the power of numbers where those numbers count. Those numbers count where they can be used in a manner that can be claimed to democratic because republican and representative: and used as a foil to popular opinion or popular sentiment. This allows the appearance of democracy to be maintained while defanging the population whose democratic sentiments contradict the instincts of the ruling coalition.

You could say that this has always been what sets representative, republican democracy from a purely plebiscitary democracy. Except you have the problem that the representative instincts of our political class clashes with the plebiscitary preferences of our broader political culture. The most effective leaders are those who have shrewdly used these plebiscitary instincts to validate and strengthen their representative claims.

An entry in Filipino Voices yesterday, by Dean Jorge Bocobo, Does the One-third Minority Rule Illegitimize Impeachment? makes me consider the flaws of the present Charter. It takes fewer votes by representatives to impeach a president than are required to rename a street. He asks if this is democratic. He says permitting a minority to impeach a President violates a cardinal principle of democracy: majority rule.

In a comment I replied that the problem he identified is only one of many problems brought up by a Constitution that was written by people who were backward-looking instead of being forward-looking; not least because the looking back looked only to their recent past, instead of the way constitution-writers have traditionally looked back, to see where the past can help in building a better political framework for the future.

In Bocobo’s entry, for example, he points to Hilario Davide proposing to reduce the number of legislators required to impeach the chief executive, based on his experience as an MP in the unlamented Batasan Pambansa. Yet Davide, by doing so, and trying to unshackle the legislature from the tyranny of numbers, ignored altogether the larger, richer, history of impeachment as a process.

Fr. Bernas, one of the authors of the Constitution, has himself suggested that one of their innovations, the Judicial and Bar Council as replacement for the Commission on Appointments as the vetting authority for presidential appointments to the Supreme Court, should be dispensed with. For all its limitations, the old way of vetting appointments to the Supreme Court seems to have been better.

So here’s just some, and I’m sure other have their own list, of the the things wrong with the Constitution: that a minority suffices for impeachment, substituting the Judicial and Bar Council for the Commission on Appointments, maintaining the Marcos era authority to automatically reenact budgets, instituting the military as guardian of the state, instituting a multiparty system without runoff elections for national office, electing the Senate in halves instead of thirds, all established a system designed not to function at all -or perhaps, to be more accurate about it, takes principles of checks and balances to extremes.

A critic of our intervention in the impeachment, blogger Seven Million Golden Fish, by pointing to the lack of a consensus on the appropriateness of the Supreme Court’s decision on the BJE-MOA, also tangentially points to an ongoing debate on the current Supreme Court, and the elimination, for all intents and purposes, of the Political Question doctrine, again an innovation introduced into the present Constitution by former Chief Justice, because of the Supreme Court’s shameful surrender to the chief executive in the Javellana v. Executive Secretary case, which provided the legal justification for the New Society.

For example, personally, I am a believer in a strong presidency. But a presidency armed with positive powers institutionally-ordained, and not wrested by means of subverting the constitutional order. And yet I do agree, to a certain extent, with the assertion of defenders of the President, like Alex Magno, that the presidency under the 1987 Constitution is condemned to fighting for its political life from the very start, which hampers the ability of any president to get anything done within their limited, six-year term (I also subscribe to the dictum put forward by Jose Yulo back in the 1930s: “six years is too long for a bad president and too short for a good one”). The presidency has to bear the burden of historical expectations of authority and dynamism, while being deprived of what makes that authority legitimate and arms the office with the ability to get things done: a firm mandate.

You could argue that a president who wants to achieve anything -and who has the combination of ruthlessness, fortitude, vision, and good luck any chief executive requires- has no choice but to bend the rules, circumvent them, or or flout them, to exercise the authority the public and political class both expect of the institution. That if the current President can claim certain achievements -and be condemned for institutional, constitutional, legal, moral, and administrative and political shortcomings- they are two sides of the same coin, which is, that the office has tremendous potential shackled by tremendous limitations, not in the personality of whoever happens to be chief executive, but in the way the whole politico-legal framework has been shakily established since 1987.

The citizenry then, is in a Catch-22 situation. Most everyone who takes the time to ponder the present constitutional framework finds its shortcomings to be so extensive, some sort of change is required -even a total overhaul. Only those who helped write the present Charter seem to hold it in some sort of affection. The problem, and this is at the heart of anything political, is timing. To make the necessary changes requires a great deal of trust in those in authority -and that trust simply doesn’t exist. So the dilemma is, make necessary changes yes, but making those changes will perpetuate the existing problems, or replace them with entire different, but quite possible, worse ones?

More on that in my next entry.

As for co-intervenor, blogger blog@AWBHoldings.com, the solution is very simple. Amend the Constitution to establish a hereditary monarchy:

I take offense at the prevailing culture of money and power not only in the House, but in all elected offices.

There is no use rebutting their arguments. As I have said earlier, they do not listen to reason. They have chosen to be deaf to the people’s voice. They have chosen to be dumb in exchange for whatever they want.

They have become subservient to the one who dispenses power and money. Which brings me to my next point.

From next week till they adjourn to enjoy the fruist of their kowtowing for the Christmas break, the House can deal with Charter change. With the recent breeding of a new mongrel in the Senate of the Republic, a Charter change in whatever mode is now possible. Since it is inevitable (if we believe Jesus Dureza and Gloria Arroyo’s supporters in the Intarwebs), I will swim with the current and support Charter change for one condition and one condition only: OUR FORM OF GOVERNMENT SHOULD BE AN ABSOLUTE, HEREDITARY MONARCHY WITH A SUBSERVIENT PARLIAMENT, COMPOSED OF A HOUSE OF LORDS AND A HOUSE OF COMMONS.

I have several reasons why I am making this condition.

1. Both Houses of Congress and majority of the elected officials of this country are acting as if Gloria Arroyo is queen anyway, so dispense with bullshit called democracy and establish an absolute monarchy, which is what is existing now.

2. Our elected officials act as if their offices are theirs and their kin’s, so dispense with the bullshit called elections and establish a hereditary monarchy with hereditary peerages, which is what is existing now, anyway.

3. Our officials act as if they derive their power from God, so dispense with the bullshit called separation of Church and State and instead establish a monarchy with a state religion, which is what is existing now, anyway.

4. Our officials love their titles so much, so dispense with the bullshit called leaders-as-servants-of-the-people and instead establish a monarchy with all the peerages and titles that we can bestow.

5. Lastly, our officials love acting before the cameras and pageantry. So dispense with the bullshit called republicanism and instead establish a monarchy with all the pomp and pageantry that it entails.

Oh well. The problem is some Palace bootlicker might just take the above entry seriously.

Until then, let me revisit this question posed last February: what to do, when When our representatives fail?

162 comments

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  1. anthony scalia

    quezon,

    “oh for god’s sake, scalia, i pointed to javellana so you can review the process by which the 1971 convention was convened.”

    thanks for the effort, quezon, but i don’t need to be reminded of it. because i already knew how the 1973 Constitution came into being.

    and let me remind you – Javellana cannot be used as precedent anymore

    “i have been saying i don’t doubt the creativity of lawyers
    “-they have been quite creative under the auspices of your dear leader.”

    oh how sad you can’t say the same thing on your lawyers! no wonder why the bright minds of the anti gloria school always fall short. then blaming the justices for their shortcomings, eh quezon?

    maybe the anti gloria school should consider changing lawyers

    but why should the anti gloria school lawyers be blamed? they’re just a reflection of the cause/people they are representing.

    “but there are some limits because there are some parameters to the process of constitution-making.”

    true! the present constitution has those parameters in place which should dispel your paranoia once and for all.

    “what i don’t understand is something quite simple.”

    oh don’t worry about that my dear kababayan. we can say the same thing

    “if there’s nothing to be paranoid about,”

    there is nothing , really

    “if the entire process will bring forth a regime of teddybears and candy cane trees and cotton candy clouds,”

    your words, not mine.

    “why do you and the geos of this world suddenly materialize and mount rear guard actions as your dear leader goes forward with what you consider the eminently unthreatening business of governing?””

    excuse me my dear kababayan? who do you think has been sending out warning signs on the cha cha and what it will result to? me? geo? grd? rego?

    if there’s nothing to be paranoid about, you would not be belaboring this “gloria-beyond-2010” and “gloria-for-2010″ my dear kababayan

    parliamentary elections in 2010? gloria running as MP in 2010? oh please

    ” you could be going fishing and dreaming pleasant dreams of the post arroyo era.”

    oh yes! thank you! sorry the anti gloria school would lose its reason for being by then. hope its adherents can find a reason to move on. poor souls

    “instead, you are busy arguing that your partisanship is objectivity and that your vacuum of facts are actual facts.”

    and you? you’re not partisan? ***falls from seat***

    oh come on my dear kababayan. you sound as if you have the monopoly of “actual facts.”

    it seems you know a “vacuum of facts” when you see them. i forgot what the term is in psychology when a person projects in others a reality in his own life

    and when did i ever use the word “objectivity”?

    “i can understand those ferociously defending the president because they confess to being undying admirers of hers. you claim otherwise, that you are a nixonian silent majority.”

    and that, my dear kababayan, already raises an issue on your objectivity. you still can’t accept the fact that
    there are people of the silent majority, people who don’t like gloria and are content with seeing her go in 2010, much like the Americans who hate Bush but who prefer that the electoral process usher him out of the White House

    you can’t blame the silent majority if they choose not to fully enjoy their constitutional rights to free expression.

    by the way, your use of ‘nixonian silent majority’ is interesting. how come the anti gloria school cannot claim to have the backing of this ‘nixonian silent majority’ for the “remove-gloria-before-2010” movement? because if it did, Noli would have been President now

    or one of your bright minded senators from that tightly-knit and cohesive group called ‘united opposition’

  2. istambay_sakalye

    “i think what was asked was fairness and truthfulness. who wants to read propaganda?”

    –you must have been reading a lot of gma’s speeches and her minions’ too! i think it is called the power of suggestion!
    repeating same lies over and over again until you start to believe it as the truth.

  3. istambay_sakalye

    “maybe the anti gloria school should consider changing lawyers”

    –i initially thought we are after the truth here, i was mistaken.
    i am actually getting law 101 lecture, technicalities and not the truth matters in the practice of law!

  4. UP n grad

    There is a difference between adherence to the truth and making things happen.

  5. anthony scalia

    istambay_sakalye :

    “–i initially thought we are after the truth here, i was mistaken.
    i am actually getting law 101 lecture, technicalities and not the truth matters in the practice of law!”

    welcome to law practice, my friend

  6. Geo

    Bert,

    You wrote: “Change the form of gov’t., with the same politicians in it, that’s your priority.”

    Sigh. You see, Bert — that’s my problem with you…apparently, you can only see life in an anti or pro GMA paradigm.

    My stated (and written, on these pages) priority is the economy. I would like to see immediate changes such as the opening up to foreigners.

    I am against Arroyo extending her stay in any shape or form.

    I think there should be new elections for Parliament…during which any party and any citizen has a chance. Local communities will be able to choose from the pool of local candidates.

    I think the process of debate should start immediately, but I don’t think the entire process can be rushed.

    So…since you keep trying to paint me in a blatantly false, agenda-driven way, I surmise that it’s probably a waste of time to discuss anything with you.

    In fact, your unfair accusations towards me seem to confirm some of my observations — many of the vociferous anti-GMA types have reduced their view of reality down to a jingoistic world of caricatures. Its the heroes vs the villains…with us stupid citizens caught in a trance.

  7. Bert

    Geo

    I heard you, you want the gov’t. to do something about the economy. All of us do want the same because that’s more important than changing the form of gov’t.

    Heard you too about your stand re: GMA. I believe you, though reluctantly. Reluctantly because you are insisting “I’m against Arroyo extending her stay in any shape or form” but you are quite persistent also with “I think there should be new elections for parliament”, which are two very contradictory statements, in my opinion. So, whether I’m accusing you unfairly is a matter of opinion, I don’t think so, and I’m a very fair person.

  8. Geo

    Bert,

    OK…that was close.

    Actually, I specifically want to see the country take on an aggressive pro-globilization stance. One of the overdue acts, I believe, is to open the domestic economy to foreigners (barring some necessary exeptions). Cha-cha is needed for that.

    On the political (and economic) side, I am for getting power better distributed. Parliament, Federalism, Unitary, PM only vs PM & Prez…are all on the table, as far as I am concerned. I am willing to be convinced about which approaches may be the best.

    I reject the idea that Gloria can return to power, in any fashion, after 2010.

    I’m OK with Con-con…it’s probably more doable…but most important is: Start the process already!

  9. Bert

    Geo,

    I know you have valid arguments for your stand regards this chacha. That’s alright. The Parliamentary form of gov’t. has its advantages, the same with the presidential form, or other forms of gov’t. But all of ’em have disadvantages also depending on a number of factors prevailing in a certain environment or geographical situation. We can only speculate on the outcome of any form we want to replace this one, but there is no assurance it will come to be.

    The crux of this, our discussion, is whether we want to underestimate, or overestimate, the capability of this administration to do what it wants to happen.

    Me, I’d rather play it safe. For the sake of our country and people.

  10. grd

    “So, whether I’m accusing you unfairly is a matter of opinion, I don’t think so, I’m a very fair person.”

    really? bert naman. sige nga review your posts specially, November 23rd, 2008 at 7:55 am

    but mindanaoan and UPn are right. you don’t know how to count.

  11. Geo

    Bert,

    I have had a lot of debates about the benefits and drawbacks of some of the proposals. I have room for more info and for further considerations; my preferences aren’t set in stone.

    That said, I have analyzed things enough to know that the present system is kaput. Without going into all the arguments, suffice it to say that a centrally located, centrally powered, centrally controlled system run by a few is not working well and can’t be expected to going forward.

    That’s my opinion, at least. Many seem to agree in general. The concepts need some national vetting.

    BUT…because a minority of the country — whose accusations have proven empty, unproven or outrightly false — the whole process should stop? Because of their continued claim that we’re in a virtual state of martial law…and that the real one is coming via Cha-cha???

    It’s been bad enough — the last two Congresses have sucked. Little is being done apace. The constant attack-and-defend-and-go-to-the-SC run-around makes me…makes me…makes me hyphenate!!! 🙂

    Seems to me that the screechers have had their time and nothing positive came out of it. Time to focus on the business of improving the nation’s economic well-being.

    And those who want, they can start preparing their candidacies for 2010. And parties can start preparing their platforms.

    Time to be practical.

  12. Bert

    grd,

    you have to understand that mindanaoan corrected UP n’s math, and mindanaoan’s math regarding three kinds of people was similarly erroneous. so, it seems that math really is a difficult subject, heheh.

    with regards to my post at 7:55am, those were statement of facts. I admit I was not able to mention the third kind, but the keyword there is “there are two categories”, which means I was not lumping the exceptions into the baskets of those two categories.

    the exceptions, which is supposed to be the third kind I failed to mention, are those I most admire because they can walk the tight rope with agility, and are more civilize, also witty.

    I hope that’s fair enough.

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