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22 Sep 2018 f Emerging Issues on the Bayanihan Draft Constitution: A Critique using the Institutional Design Literature in Political Science “A Forum on the Economic, Social, and Political Viability of Federalism in the Philippines” Pinnacle Hotel, Davao City 22 September 2018 Gene Lacza Pilapil Assistant Professor of Political Science University of the Philippines-Diliman

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Page 1: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

f

Emerging Issues on the Bayanihan Draft Constitution:

A Critique using the Institutional Design Literature

in Political Science

“A Forum on the Economic, Social, and Political Viability

of Federalism in the Philippines”Pinnacle Hotel, Davao City

22 September 2018

Gene Lacza Pilapil

Assistant Professor of Political Science

University of the Philippines-Diliman

Page 2: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

This lecture is part of my ongoing research project entitled

“A Critical Review of the Federalism Project

of the Duterte Administration”

funded by the Office of the Chancellor

of the University of the Philippines Diliman,

through the Office of the Vice Chancellor for Research

and Development’s Outright Research Grant.

Acknowledgements

Page 3: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

I would like to thank

the Brotherhood of Christian Businessmen

and Professionals (BCBP)

Page 4: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

I would like to thank

the Brotherhood of Christian Businessmen

and Professionals (BCBP)

and

the Ateneo School of Government

Page 5: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

I would like to thank

the Brotherhood of Christian Businessmen

and Professionals (BCBP)

and

the Ateneo School of Government

for inviting me to lecture in their forum here in Davao City

I would also like to thank everyone in the audience

listening to my lecture this morning.

Main Aim of the Lecture

Page 6: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Main Aim:

Assert the importance

of the institutional design literature in political science,

the expert literature that specializes

on the design and re-design of political institutions,

in assessing

(a) directly: the Bayanihan Federal Constitution

(b) indirectly: the other proposed federal constitutions

and

(c) by implication: the overall federalism project in the Philippines.

Outline of the Lecture

Page 7: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Outline

I. Short introduction to the institutional design literature

II. Critique of the “Bayanihan Draft Constitution”

(henceforth: “Con-com constitution”)

using the institutional design literature.

I. Short Introduction

to the Institutional Design Literature

Page 8: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

If separated = presidential

one basic example: form of government

relation between the executive and legislative

differences in the arrangement of formal rules

If fused = parliamentaryinstitutional design of a

country’s form of government

horizontal

If hybrid = semi-presidential

I. Short introduction to the institutional design literature

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

“makes

final decisions”

Another basic example:

Page 9: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

powers

can be

delegated

single sovereignrecognized by the constitution

“makes

final decisions”

Another basic example:

“constitutional sovereignty”

Page 10: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

powers

can be

delegated

“makes

final decisions”

a unitary system can range

from highly centralized

(ex. Singapore)

Another basic example:

single sovereignrecognized by the constitution

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

No

powers

are

delegated

“makes

final decisions”

a unitary system can range

from highly centralized

(ex. Singapore)

single sovereignrecognized by the constitution

Another basic example:

Page 11: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

“makes

final decisions”

a unitary system can range

to highly decentralized

(ex. Norway)

No

powers

are

delegated

single sovereignrecognized by the constitution

Another basic example:

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

“makes

final decisions”

a unitary system can range

to highly decentralized

(ex. Norway)

Many

powers

are

delegated

single sovereignrecognized by the constitution

Another basic example:

Page 12: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

“makes

final decisions”

a unitary system can range

to highly decentralized

(ex. Norway)

Many

powers

are

delegated

single sovereignrecognized by the constitution

Another basic example:

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

“makes

final decisions”

a unitary system can be more

decentralized than some

centralized federal countries

(ex. Indonesia over Malaysia)

Many

powers

are

delegated

single sovereignrecognized by the constitution

Another basic example:

Page 13: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Unitary

system of

government

vertical

single

central

source of authority

subordinate

to the central

“makes

final decisions”

a unitary system can be more

decentralized than some

centralized federal countries

(ex. Indonesia over Malaysia)may

also be revoked

Many

powers

are

delegated

single sovereignrecognized by the constitution

Another basic example:

system of government

relationship between the

central government

local government

Federal

system of

government

vertical

in certain policy

areas where central

government has

exclusive jurisdiction

sovereign

Another basic example:

“makes

final decisions”

Page 14: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Federal

system of

government

sovereign

in certain policy

areas where local

government has

exclusive jurisdiction

vertical

Another basic example:

second sovereign

recognized by the constitution

hence, another

level of government

also enjoys

constitutional sovereignty

“makes

final decisions”

system of government

relationship between the

central government

local government

Federal

system of

government

sovereign

in certain policy

areas where local

government has

exclusive jurisdiction

powers cannot be

revoked because

� they are not delegated

by the central government

� but guaranteed

by the constitution

Another basic example:

hence, another

level of government

also enjoys

constitutional sovereignty

second sovereign

recognized by the constitution

“makes

final decisions”

Page 15: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Federal

system of

government

verticalfederalism can be

highly centralized(ex. Venezuela)

Another basic example:

system of government

relationship between the

central government

local government

Federal

system of

government

verticalfederalism can be

highly centralized(ex. Venezuela)

Another basic example:

Page 16: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Federal

system of

government

verticalfederalism to

highly decentralized(ex. United States)

Another basic example:

system of government

relationship between the

central government

local government

Federal

system of

government

verticalfederalism to

highly decentralized(ex. United States)

Another basic example:

Page 17: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

system of government

relationship between the

central government

local government

Federal

system of

government

vertical

Another basic example:

in certain

policy areas

where both

governments

have

jurisdiction

(concurrent/shared)

system of government

relationship between the

Federal

system of

government

vertical

in certain

policy areas

where both

governments

have

jurisdiction

(concurrent/shared)

local

government

central

government

“federal

paramountcy”

Another basic example:

Page 18: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

I. Short introduction to the institutional design literature

such as the

form of government,

system of government

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

Page 19: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

such as the

form of government,

system of government

electoral system,

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

system of government

electoral system,

party system,

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

Page 20: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

Page 21: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

studies how the design

(or redesign) of a country’s

political institutions

Page 22: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

affects or will affect, among others,

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

affects or will affect, among others,

the accountability,

studies how the design

(or redesign) of a country’s

political institutions

Page 23: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

affects or will affect, among others,

the accountability,

representation,

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

affects or will affect, among others,

the accountability,

representation,

popular empowerment,

studies how the design

(or redesign) of a country’s

political institutions

Page 24: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

affects or will affect, among others,

the accountability,

representation,

popular empowerment,

elite capture,

studies how the design

(or redesign) of a country’s

political institutions

such as the

form of government,

system of government

electoral system,

party system,

legislative structure,

judicial system,

and

constitutional bodies

I. Short introduction to the institutional design literature

affects or will affect, among others,

the accountability,

representation,

popular empowerment,

elite capture,

and coherent policymaking

of the state

studies how the design

(or redesign) of a country’s

political institutions

Page 25: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

I. Short introduction to the institutional design literature

“constitutional engineering literature”

other terms

“constitutional design literature”

“institutional approach”

“new institutionalism”

I. Short introduction to the institutional design literature

counts some of the biggest names

in the political science discipline

including winners of the Johan Skytte Prize in Political Science

Page 26: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

"to the scholar who in the view of the Foundation has made the most valuable contribution to political science”

I. Short introduction to the institutional design literature

counts some of the biggest names

in the political science discipline

including winners of the Johan Skytte Prize in Political Science

represents the best minds that have studied

similar institutional issues that Filipinos now face

(and are the real experts on these issues)

Page 27: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

II. Critique of the “Con-com constitution”

using the institutional design literature

1. Third federal constitution

Page 28: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Three proposed federal constitutions have been submitted to Congress under the Duterte Administration

Eugene De Vera and Aurelio Gonzales, Jr. (Resolution of Both Houses 008) in August 2016

Page 29: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Three proposed federal constitutions have been submitted to Congress under the Duterte Administration

Eugene De Vera and Aurelio Gonzales, Jr. (Resolution of Both Houses 008) in August 2016

Federalism Study Group of the PDP Laban Federalism Institute in August 2017

Page 30: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Three proposed federal constitutions have been submitted to Congress under the Duterte Administration

Eugene De Vera and Aurelio Gonzales, Jr. (Resolution of Both Houses 008) in August 2016

Federalism Study Group of the PDP Laban Federalism Institute in August 2017

Consultative Committee to Review the 1987 Constitution last July 2018

Page 31: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Three proposed federal constitutions have been submitted to Congress under the Duterte Administration

Eugene De Vera and Aurelio Gonzales, Jr. (Resolution of Both Houses 008) in August 2016

Federalism Study Group of the PDP Laban Federalism Institute in August 2017

Consultative Committee to Review the 1987 Constitution last July 2018

only one created by an Executive Order from President Duterte

Page 32: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

2. Con-com constitution is now dead politically

First thing that needs to be said is that this constitution is already dead politically

1. Lukewarm support by the President

Page 33: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

First thing that needs to be said is that this constitution is already dead politically

2. Too few senators supporting it

1. Lukewarm support by the President

Page 34: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

ARTICLE XVII

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

Page 35: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

First thing that needs to be said is that this constitution is already dead politically

2. Too few senators supporting it

3. Lower House under Speaker Arroyo has returned to “voting separately” for Con-Ass

1. Lukewarm support by the President

ARTICLE XVII

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

voting separately or jointly?

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22 Sep 2018

Page 37: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

First thing that needs to be said is that this constitution is already dead politically

2. Too few senators supporting it

3. Lower House under Speaker Arroyo has returned to “voting separately” for Con-Ass

4. Key economic managers of Duterte oppose it

1. Lukewarm support by the President

Page 38: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Page 39: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

First thing that needs to be said is that this constitution is already dead politically

2. Too few senators supporting it

3. Lower House under Speaker Arroyo has returned to “voting separately” for Con-Ass

4. Key economic managers of Duterte oppose it

1. Lukewarm support by the President

5. Time has run out on it

Page 40: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

So please consider

my critique

of this Con-com constitution

more as an

autopsy

Page 41: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

3. Contravenes institutional design principles

Written as if it was confined in an

intellectual vacuum

where it has remained untouched

by the critical insights of the

institutional design literature

Page 42: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Its explicit provisions on

federalism,

Page 43: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Page 44: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Its explicit provisions on

federalism,

political dynasties, political parties,

Page 45: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Its explicit provisions on

federalism,

political dynasties, political parties,

judiciary,

Page 46: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Its explicit provisions on

federalism,

political dynasties, political parties,

judiciary, transitory provisions,

Page 47: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Its explicit provisions on

federalism,

political dynasties, political parties,

judiciary, transitory provisions, etc.

Page 48: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Its explicit provisions on

federalism,

political dynasties, political parties,

judiciary, transitory provisions, etc.

and the-all important implicit

assumptions that underlie them –

seem to ignore, undermine, contradict,

or are simply blissfully unaware

of many basic principles and serious

concerns of institutional design

and re-design,

especially if you are tinkering with an

already functioning democratic

constitution.

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

1. the folly of “hyperrationality”

(the mistaken belief that just because

the formal rules are changed,

the old behavior of politicians will also

change);

Page 49: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

2. the importance of sequencing of reforms

based on the “un-simultaneous time

horizons” of different reforms for them to

work

(as against “big bang,” “grand bargain,” or

long list of reforms

introduced as one simultaneous package);

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

3. the principle “reform only in the face of

manifest flaws”

(a. the problems must be clearly identified

for the reforms to be credible

and

b. a reform constituency must exist backing

up the reforms);

Page 50: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

4. the danger of “overreforming”

(because reforms introduce new problems

and at times can be worse than the

problems initially being addressed;

related terms are “reform should correct

those flaws as specifically as possible,”

and “better the devil you know than the

devil you do not know”);

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

5. underestimating “the law of

unintended consequences”

(where new institutions do not function the

way the designers originally intended;

in fact, they can even function opposite of

the framers’ intention; plain English

translation is “the road to hell is paved

with the best of intentions”);

Page 51: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

5. underestimating “the law of

unintended consequences”

(where new institutions do not function the

way the designers originally intended;

in fact, they can even function opposite of

the framers’ intention; plain English

translation is “the road to hell is paved

with the best of intentions”);

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

6. the crucial role of “path dependency”

(basically, who are first empowered by the

introduction of the new constitution that

would determine the manner how the

reforms are later shaped;

hence, the overwhelming importance of the

transitory provisions of the new

constitution);

Page 52: Emerging Issues on the BayanihanDraft Constitution...22 Sep 2018 f Emerging Issues on the BayanihanDraft Constitution: A Critique using the Institutional Design Literature in Political

22 Sep 2018

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

7. the important distinctions among

“macro-level” (e.g., system of government),

“meso-level” (e.g., electoral system),

and

“micro-level” (e.g., legislative sub-rules)

institutional reforms,

and their implication for constitutional

engineering; and

Among the most important of these critical

insights

contravened throughout by the Con-com

constitution

in its grand constitutional vision for the Phils,

I list only eight:

8. the danger of “excessive optimism”

in reforms

(because it can easily lead to

“excessive disillusionment” afterwards

as what would most likely happen with reforms with exaggerated promises).

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4. Did not do its most important homework

But even as it ended up being longer

than the 1987 Constitution

and identified sweeping revisions of the

current constitution it was tasked to

review,

it still failed to do what for me is its

most important homework.

write a constitution that has a believable

transition plan on how to move from the current unitary to the new federal system

the most institutionally complex

experiment this country will undertake

under democratic conditions

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Has the temerity to eternally lock the

country and all future generations of

Filipinos to federalism

by constitutionally entrenching federalism

through an “eternity clause” (Section 4,

Article XXI)

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Has the temerity to eternally lock the

country and all future generations of

Filipinos to federalism

by constitutionally entrenching federalism

through an “eternity clause” (Section 4,

Article XXI)

where no constitutional amendment or

revision can change its federal character,

it is nevertheless willing to leave the country

to wander indefinitely

in an institutional wilderness as it lacked a map for the transition itself.

Instead of a credible map,

it creates an all-powerful

Federal Transition Commission

that will not simply oversee the transition

but would do the task that the

consultative committee,

after being given almost five months and

funded millions of pesos,

should have done in the first place: the actual plan for the transition.

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That it fails to provide a crucial

transition plan is not surprising

given that both the RBH no. 8 and

the PDP-Laban constitution

also failed to give the country

the all-important plan

on how to get from point A to point B.

The PDP-Laban constitution best

manifested this failure by leaving its

article “Transitory Provisions” (Article XVIII) empty,

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The PDP-Laban constitution best

manifested this failure by leaving its

article “Transitory Provisions” (Article XVIII) empty,

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The PDP-Laban constitution best

manifested this failure by leaving its

article “Transitory Provisions” (Article

XVIII) empty, with the footnote carrying the lamest of excuses.

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It also bestows the Transition

Commission with all-encompassing,

powers for its vague transition process

(see Section 2, Article XXII of the

original version, especially Section 2-d).

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Its initial plan was to have the incumbent president

also as the transition president by heading the

eleven-person Federal Transition Commission.

thus giving the

President full control

of both the search

committee and the

Federal Transition

Commission.

the ten other

members are to be

chosen by a

search committee

whose members

are to be chosen

by the President

himself

Because the Con-com initially refused the

call to explicitly ban the incumbent

president from running for president in their

new constitution,

what happens is a double bonanza for the

incumbent president:

1.) he is allowed to run in the new

constitution; and

2.) as transition president with additional

powers,

he enjoys a grossly advantageous position

over his opponents if he eventually

chooses to run under the new constitution.

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Note that in this sense,

the institutional design of the Con-com

transition,

underneath its more polished language,

is similar to the quasi-revolutionary

powers of both RBH 08

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22 Sep 2018

Note that in this sense,

the institutional design of the Con-com

transition,

underneath its more polished language,

is similar to the quasi-revolutionary

powers of both RBH 08

and of the January 16, 2018 House

Concurrent Resolution (HCR) no. 9,

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Note that in this sense,

the institutional design of the Con-com

transition,

underneath its more polished language,

is similar to the quasi-revolutionary

powers of both RBH 08

and of the January 16, 2018 House

Concurrent Resolution (HCR) no. 9,

powers that were all tailor-made for

President Duterte as incumbent

president and reelectionist candidate.

The original Con-com idea was on June 30,

2022,

the Federal Transition Commission would not

have only come up with the plan for the

transition

but also have implemented it

(Section 2-c, Article XXII, of the original version).

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Since the Con-com members in their

public statements specifically target

the May 2019 local and national elections

as also the time of the plebiscite for their

constitution,

this means the transition from plan to

execution is to be done in just three years.

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Since the Con-com members in their

public statements specifically target

the May 2019 local and national elections

as also the time of the plebiscite for their

constitution,

this means the transition from plan to

execution is to be done in just three years.

The rush results in twin

horrors in constitutional

engineering and are

classic cases of brute

political factors

overriding any

institutional design logic

Since the Con-com members in their

public statements specifically target

the May 2019 local and national elections

as also the time of the plebiscite for their

constitution,

this means the transition from plan to

execution is to be done in just three years.

The rush results in twin

horrors in constitutional

engineering and are

classic cases of brute

political factors

overriding any

institutional design logic

First, the plebiscite campaign will have to compete with the noise of the

campaign of thousands of local and senatorial candidates.

This will definitely drown out

the needed careful deliberation

of the most fundamental

decision a citizen can make

which is a yes or no decision on whether

to accept a new constitution

that will now serve as the most basic institutional framework of his/her existence.

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Since the Con-com members in their

public statements specifically target

the May 2019 local and national elections

as also the time of the plebiscite for their

constitution,

this means the transition from plan to

execution is to be done in just three years.

The rush results in twin

horrors in constitutional

engineering and are

classic cases of brute

political factors

overriding any

institutional design logic

First, the plebiscite campaign will have to compete with the noise of the

campaign of thousands of local and senatorial candidates.

This piggybacking is sheer folly considering that the March 2018 Social

Weather Stations survey showed only 1 out of 4 Filipinos has a minimalist

awareness of what federalism is.

Government

propaganda will

not significantly

increase that

percentage in

the sixty- or

ninety-day

campaign period

even if that was

the only thing

that will be

discussed, which

will not even be the case.

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Since the Con-com members in their

public statements specifically target

the May 2019 local and national elections

as also the time of the plebiscite for their

constitution,

this means the transition from plan to

execution is to be done in just three years.

The rush results in twin

horrors in constitutional

engineering and are

classic cases of brute

political factors

overriding any

institutional design logic

Second, if the Con-com constitution were approved and implemented in just 3 years,

there is a very high risk of bringing the country

� not into a dizzying pace of change

but, as institutional design literature has warned in terms of unintended consequences,

� into near standstill

because of the chaos of the enormity of the tasks needed to create all the new institutions of the Con-com constitution

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

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But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

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But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

and thereby creating a

supposed vacancy on

who will be the transition

president to oversee the shift to federalism.

Ban on his reelection is a

significant step in the right

democratic direction

(as changing constitutions

to skirt term limits is a classic “power grab”)

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22 Sep 2018

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

and thereby creating a

supposed vacancy on

who will be the transition

president to oversee the shift to federalism.

Ban on his reelection is a

significant step in the right

democratic direction

(as changing constitutions

to skirt term limits is a classic “power grab”)

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

However, cutting short his

term is clearly retrogressive

because this undermines the

electoral mandate given by

the 16.6 million voters who

voted for him.

(including 96.6% of voters in Davao City)

Ban on his reelection is a

significant step in the right

democratic direction

(as changing constitutions

to skirt term limits is a classic “power grab”)

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22 Sep 2018

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

However, cutting short his

term is clearly retrogressive

because this undermines the

electoral mandate given by

the 16.6 million voters who

voted for him.

(including 96.6% of voters in Davao City)

Ban on his reelection is a

significant step in the right

democratic direction

(as changing constitutions

to skirt term limits is a classic “power grab”)

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

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22 Sep 2018

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote but she of her office,

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote

but she of her office, who has no plan to abandon her mandate

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22 Sep 2018

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote

but she of her office, who has no plan to abandon her mandate and in fact,

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote

but she of her office, who has no plan

to abandon her mandate and in fact,

should be the constitutional

successor of the 1987 Constitution if the president decides to resign.

This could be described as a

“reverse power grab,” or a sort of

impeachment-via-new-constitution,

and is utterly contemptuous of the

electoral, hence democratic, mandate

bestowed on her by the 1987

Constitution.

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22 Sep 2018

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote

but she of her office, who has no plan

to abandon her mandate and in fact,

should be the constitutional

successor of the 1987 Constitution if the president decides to resign.

This could be described as a

“reverse power grab,” or a sort of

“impeachment-via-new-constitution,”

and is utterly contemptuous of the

electoral, hence democratic, mandate

bestowed on her by the 1987

Constitution.

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote

but she of her office, who has no plan

to abandon her mandate and in fact,

should be the constitutional

successor of the 1987 Constitution if the president decides to resign.

This could be described as a

“reverse power grab,” or a sort of

“impeachment-via-new-constitution,”

and is utterly contemptuous of the

electoral, hence democratic, mandate

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22 Sep 2018

But this initial transition plan of the Con-com has

been revised by the intervention of the very hand

that created it.

After receiving the Con-com constitution,

President Duterte responds to the challenge of

the critics to include a “ban Duterte” provision

by asking the Con-com to write down the

provision barring him from running in 2022.

He raises the ante even more as he asked his

Con-com to write down another provision calling

for presidential and vice-presidential elections

next year because he promises to resign once

the constitution is ratified in 2019,

Worse, in the case of Vice President

Robredo, it is not just the 14.4 million

voters who voted her who would be

disenfranchised of their vote

but she of her office, who has no plan

to abandon her mandate and in fact,

should be the constitutional

successor of the 1987 Constitution if the president decides to resign.

This could be described as a

“reverse power grab,” or a sort of

“impeachment-via-new-constitution,”

and is utterly contemptuous of the

electoral, hence democratic, mandate

bestowed on her by the 1987

Constitution.

Mad as this stand of the president,

especially on the vice president,

madder still is the Con-com

who readily agreed to this cavalier

suggestion of constitutional

strangulation of democratic mandates.

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5. Conclusion

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To conclude,

the institutional design of the Con-com

constitution does not move us far from

the two other proposed federal

constitutions.

All three are failures as federal constitutions.

All three constitutions illustrate how

complex, problematic, elusive, mindboggling, and risky

the institutional design overhaul needed to effect a transition

from a unitary to a federal system of government in a democracy

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This federal constitution-making becomes even more problematic,

if we consider two general insights that can be drawn from the institutional design literature in political science:

1. There is no consensus in the literature on the superiority of federal to unitary systems of government (or vice versa)

2. The recommendation of top scholars for democratic countries with already functioning systems or forms of government is toreform rather than overhaul their systems or forms of government.

Thank you.

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Emerging Issues on the Bayanihan Draft Constitution:

A Critique using the Institutional Design Literature

in Political Science

“A Forum on the Economic, Social, and Political Viability

of Federalism in the Philippines”Pinnacle Hotel, Davao City

22 September 2018

Gene Lacza Pilapil

Assistant Professor of Political Science

University of the Philippines-Diliman