Tuesday, March 13, 2007

Constitutional Conservativism and Angara On Charter Change

SENATOR EDGARDO ANGARA deserves to be re-elected to a Senate seat in the coming May elections because of his philosophically conservative stand on Charter Change during the next three years, which he cogently expressed during the ABSCBN News Forum 2007 debate on that crucial subject telecast Monday evening. By "philosophically conservative" I mean a position that seeks to reduce the size, intensity and nature of government's role in Philippine society which strongly reflects Thomas Jefferson's dictum that "The best government is the least government, because then the people must discipline themselves."

Angara summarized his position on what to change and what not to change, in several major points whilst replying to the panel of interrogators who asked a variety of questions to elicit the views of the three participating candidates (which also include House Minority Leader Francis Chiz Escudero of the Genuine Opposition and KBL's Oliver Lozano who both expressed essentially liberal, Big Government positions that I discuss only briefly at the end of this post).

ON WHAT NOT TO CHANGE Angara opposes the attempts of the Palace and its House allies to radically transform the current political system along the lines of a Unicameral Parliamentary or Unicameral Presidential system. I think he believes as many "natural" conservatives do that this is essentially a rearrangement of the deck chairs on the Titanic that only gives the politicians a new game to play that won't actually change the course of the Ship of State and only lead to a more expensive and powerful government, even if it makes elections a little cheaper. Moreover, as I've pointed out during the anti-chacha wars of 2006, such a switch to a unicameral parliament will deprive the people of their right to directly elect the national leaders and concentrate power in nationally unelectable back-room politicians like Jose de Venecia, Luis Villafuerte and Butch Pichay.

Next, on what changes he would advocate he mentioned three major reforms:

(1) LOCAL GOVT AUTONOMY Angara wants to push the issue of local government autonomy which is a key conservative position that essentially reduces the power of the national government. He did not expound on this very much but I think it would include an amendment to take away from the Palace its stranglehold on the government's finances, for example by ensuring that the Internal Revenue Allocations (IRA) go directly to local government units without being at the mercy of the Chief Executive, a form of centralized control that Gloria Macapagal Arroyo has raised to a grotesque art form. This goes to the heart of what is wrong with the Executive Dept. setup we now have under the 1987 Constitution and could lead to a fruitful federalism.

(2) REFORMING THE ACTIVIST JUDICIARY Angara wants to do something to rein in an essentially out-of-control and power-besotted Judiciary. In particular, the Supreme Court meddles in everything from the economy to politics to social issues. Its most despicable expression was seen in the judicial putsch of Hilario G. Davide during the 2001 Edsa Dos coup d'etat on the Presidency, when he abandoned the Senate Impeachment Trial of Joseph Estrada, and illegally and unconstitutionally swore in the Vice President. Throughout the last twenty years the Court has been involved in various interventions on business, the economy, and whatever suits the fancy of a bunch of unelected judges who've dispensed with the idea of impartiality as cold, neutral justices.

The Manila Times columnist Tony Lopez put it like this--
Another pernicious provision of the Cory Constitution is the power of judicial review of the Supreme Court and courts under it.

“Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government,” says Article 8, Section 1 of the Cory Constitution.

Under the 1935 Constitution, the Supreme Court could only review the constitutionality or validity of any treaty, law, ordinance or executive order or regulation in question. It couldn’t rule on political questions. This enabled Ferdinand Marcos to impose his strong-man rule because martial law was a political question.

To remedy the situation, the Cory-handpicked framers of the 1987 invested courts with the power of judicial review or what is known as determination of “a grave abuse of discretion amounting to lack or excess of jurisdiction.” The result is that courts went beyond their jurisdiction and their competence.

This provision made the Supreme Court very powerful and resulted in what Chief Justice Reynato Puno himself has described wryly as the “judi-cialization of politics.” Conversely, in my view, it resulted in the “politicization of the judiciary.”

Judicial review also meant judicial interference in matters of purely business or economic interest. Thus, the Supreme Court could order the relocation of a Taiwanese petrochem plant from Bataan to Batangas or vice versa, nullify the bidding for the Manila Hotel and award it to a losing bidder in the name of national patrimony. It also got the high court enmeshed in a shipyard bidding and many other economic issues. And if we are not careful, the courts might just outlaw globalization one of these days.

This made justices and judges businessmen and entrepreneurs and even economists. It also made them politicians as well. It made the judiciary the strongest of the three branches of government. Note that it was the Supreme Court en banc, not People Power 2, that installed Gloria Arroyo as president in January 2001.
I could not agree more!

(3) ECONOMIC REFORMS Angara wants to concentrate on reforming the "economic provisions" of the 1987 charter which he says basically cast in concrete certain allegedly nationalistic and patriotic concepts regarding foreign ownership of land and business enterprises. His point is a subtle but reasonable one. He does not explicitly call for the abolition of these provisions and protectionist measures, but insists that the country ought not to have its hands tied. We ought to have the flexibility to adopt, adjust or abolish them according to the needs of the country and people via normal Congress legislation. He points out that all the countries in our region, including China, have learned how debilitating PROTECTIONISM actually is, saying that instead of 2.5 billion dollars in foreign investment here, we could achieve many multiples of that if we learn the same lesson.

Finally, when asked what mode of Charter Change he favors, Angara replied that he believes in charter changes essentially via Congress acting as Constituent Assembly, which is also how the United States with its bicameral Congress and federal state system, has done it during the last two hundred years and 27 Amendments to its own charter. I like this far better than the position taken by Chiz Escudero for a Constitutional Convention, which I believe would only lead to the liberal madness of radical, wholesale changes imbued with the delusion that we can solve our problems by designing a more perfect government (i.e., bigger, badder government). A Concon is equivalent to giving birth to the Nation, and really ought to be done but once in a nation's lifetime. We've done it at least four times already (1899 Malolos, 1935 Commonwealth, 1972 Marcos and 1987 Cory)! A fifth time can only result in another 80% solution with a different set of imperfections. A Constitutional Convention will always attempt to re-invent the wheel.

In contrast, Chiz Escudero and Oliver Lozano expressed classical liberal positions with a populist flavor that I consider to be mere pandering to the masses in the tv audience whilst upholding protectionism that benefits only the existing elites. As such they probably won the on-air debate forum. Their ideas were noble sounding, but unsound. Escudero's opposition to charter change on the basis of opposition to, and perhaps justifiable distrust of Gloria Macapagal Arroyo represents a poverty of Statesmanship. Meanwhile, I see a poverty of Logic in Oliver Lozano's sound bite that allowing foreign ownership of land will result in Filipinos being squatters in their own country. Ahem. But they ARE squatters in urban ghettoes now on land owned by Filipino elites and feudal lords that keep us from participating in and benefiting fully from globalism. I think Angara answers their objections to chacha by opposing the radical changes in political system and government structure that we saw in 2006 whilst offering a cogent intellectual challenge to the prevailing liberal, centralized Big Government philosophy in the form of greater local autonomy.

Angara did not make it to the Magic 12 in the Feburary SWS survey of the Senate race. Pity, but I hope even if he doesnt win that his ideas will.


Nostalgia Manila said...

Congratulations for being nominated in the 2007 Philippine Blog Awards.

Rizalist said...

Thanks Nostalgia. But kindly vote for one of the other nominees.

manuelbuencamino said...

The thing about these so-called nationalist economic provisions is that they are not really a hindrance to investment. Many countries enjoy investment inflows even if they have these types of restrictions.

The real hindrance to investment is corruption. It raises the cost of doing business. And it breeds a climate of uncertainty because rules, depending on who is collecting bribes, can and do change in midstream.

We cannot say which of our safeguards, protectionism to you, is harmful or not until we bring down corruption to a manageable level, like Singapore, Hongkong and the US.

Once we manage corruption, because you cannot eliminate it completely, then we can begin an intellgent analysis of our safeguards - eliminate those that prevent us from growing and keep those that allow us to grow.

Angara's thoughts are in the right direction unfortunately he is starting out on the wrong foot.

Rizalist said...

You are right about corruption of course. But the topic of the Forum 2007 show was Chacha. Angara said we are the only country in Asia with such provisions. Even China does not have such restrictions. Also his real point was we ought to have the flexibility to impose or not impose such protectionist rules. Not tie our hands.

manuelbuencamino said...


I get it. Other countries may have restrictions but they are not constitutional restrictions.

I can see the advantages of flexibility. I can also see the danger of giving too much flexibility to our corrupt legislators.

We have o philiosophical or ideo;ogical differences with regards to flexibility. The only thing we would disagree on is the matter of timing. When will it be safe to hand over the wheel to our representatives? Do we ask them to prove themselves first? Oe do we gove them the benefit of the doubt?

manuelbuencamino said...

I meant we have NO disagreement on the principle of flexibility.

Rizalist said...

We ALWAYS give them the benefit of the doubt! That is what elections DO.

But it is also true that we can take back the benefit of the doubt. That is also what elections DO!

We must NEVER lose the power to put them there and AND remove them too. That is the meaning of Democracy and Freedom, that WE the people have the power.

At each cycle, we can never be sure of what the leaders will do, but without the flexibility to do so, we will never know what they CAN do. If we tie their hands then they cannot steer the Ship of State in directions that even WE, the people cannot imagine possible.

That is what leaders do: imagine, inspire, execute.

Azalea said...

I agree with the execution MB.

But about the flexibility you were saying, aren't we already overstretched? I don't think we still have space to stretch this already wounded nation with its anchor of corruption.