Federalism, Con-ass, and faith

In an earlier commentary (“The federalism project in PH,” 11/9/16), I listed three key points from the institutional design literature that undermine the federalism project and the overall Charter change campaign.

This one, still an extension of my lecture as speaker at the recent Jaime V. Ongpin Annual Memorial Lecture, focuses on the most political of the three: the argument that a constituent assembly (Con-ass) which also functions as a legislative assembly and is riddled by vested interests is a highly risky mode of overhauling a constitution.

In their book, “Sustainable Democracy,” Adam Przeworski and 20 other top scholars argue that there are no optimal democratic institutions. And even if there were, the distributive impact of institutions would mean that “there is no reason to think that the political forces in conflict over the institutional design would end up choosing them.”

There are at least two critical implications of these insights on constitutional overhauls. First, the resulting institutional choices mainly reflect the balance of power, hence making these choices highly political and self-interested. Second, the process of getting from point A (unitary, say) to point B (federal, say) is as important as, or even more so than, B itself, hence highlighting the role of the body tasked to overhaul the constitution.

The chosen mode of Charter change by President Duterte, the Congress leadership, and former Senate president Aquilino Pimentel Jr. is the Con-ass. This means it is Congress—with its twin pathologies of low institutionalization of political parties and high level of political dynasties which have resulted in, among others, the pork barrel corruption scandals, anemic legislative output, and concentration of elite power—that would rewrite the Constitution.

For the institutional design literature, this Con-ass should not be entrusted with the task. In his book chapter “Ways of constitutionmaking,” Jon Elster counsels that “constitutions be written by specially convened assemblies and not by bodies that also serve as ordinary legislatures” to minimize their vested interests.

Because these Con-ass members are also the winners of the old unitary setup, the argument of Stephan Haggard and Robert Kaufman against vested interests in their article “The Challenges of Consolidation” becomes imperative. They warn that when overhauling constitutions (in their case, from an existing presidential to a parliamentary democracy), “compromises with groups that have benefited from existing institutional arrangements may also produce hybrid outcomes that leave lines of accountability unclear and combine the worst of both worlds.”

Pimentel offers two solutions to address these serious concerns. The first is for Con-ass members to hold extensive public consultations “so that the thinking of the people can permeate their own vision of how to shape the federal system when it is adopted by the country.”

This is a weak answer in institutional design. Consultations do not change the basic equation of accountability between the Con-ass members and the public as the former are not institutionally bound to follow anything the latter says. Consultations also do not, like magic, change the nature of politicians with vested interests to protect.

It is his unique second answer that makes the federalism project in the Philippines more faith-based than the previous ones reviewed by Ronald May. For Pimentel, it is Mr. Duterte’s “firm leadership” that will ensure that legislators deliver a well-crafted federal system.

So this most institutional of projects now depends on a single person to save it. Never mind if this savior’s contempt for institutions is unprecedented and if his own erratic policy statements could not be interpreted even by his Cabinet members. He is supposed to steadily lead a horde of legislators with vested interests in the old order as they write the ideal federal system that would end their oldworld privileges. To believe this is deep faith, another term is sheer folly.