From Crisis to Governance
By ATTY. JOEY MENDOZA
Crisis and the challenge of staying the course with democracy
Around the world, we see a growing global clamor for fundamental political and economic reform. Whether it goes by the name Arab Spring or Brexit, it is generally a clamor for change in the manner in which the ruling class oversees and regulates access and opportunity to economic and political resources.
The Philippines is no different. We are in a period of very open, often distressing, but unprecedentedly engaged national debate about such fundamental issues as our concept of justice, of truth and the form of its dissemination, and even of our form of government and the very viability of our constitution. From an optimistic view, this period needs to be seen as having the potential of becoming a watershed in the national discourse.
Reform sometimes necessitates crisis. The 1987 Constitution, itself borne of crisis, ushered in profound changes including recognition of human rights and of social justice and the strengthening of our system of checks and balances.
The democratic project is far from complete. The various crises we face today have the potential of moving us to the next level of reforms. But this will be true only if a) the crisis is resolved through democratic processes, b) it advances our democratic way of life and c) we do not, as has often happened, allow the political elites to hijack the process.
Former constitutional commissioner Christian Monsod, speaking on the prospect of the shift to federalism1, has said that an erroneous constitutional change is “almost impossible to unravel and may lead to the ruin of our democracy”. He endorses the more conservative “reform by legislation” which is susceptible to correction when needed.
In a similar vein, Supreme Court Justice Antonio Carpio has spoken on potential territorial loss in the West Philippine Sea by default2, as a result of refusing to assert our rights over our seas despite the availability of internationally acceptable diplomatic options.
Bringing the country to these points of near irredeemable loss seems unwise when more measured and no less effective options are available. Our powerful executive has many political, economic and diplomatic tools available to it. Thus it is troubling that we find ourselves at the threshold of numerous and dangerous tipping points3:
- A perceptively inadequately supported Bangsamoro peace process when this, and the partnership with the MILF, is the most viable option to both bringing peace and development to Muslim Mindanao and resisting the establishment of an ISIS province4.
- Politicizing and weakening our system of checks and balances, through threats and attacks aimed at the Supreme Court, the Court of Appeals, constitutional bodies including the Ombudsman and the CHR, the AMLA and even members of the Senate minority block.
- Discrediting our justice system through the disregard of due process and the rule of law, specifically in the case of the war on drugs.
- Weakening our long-standing regional security alliances, including a mutual defense treaty that guarantees security amidst regional power imbalances.
Most egregiously, politicizing and weaponizing the DOJ5 and some of its attached agencies and the flirtation with declaring a revolutionary government by some in the administration contemplate an abandonment of the very Constitution upon which the administration came into power.
A process shift back to the business of governance and development
Behind most of these crises are legitimate issues. While political brinkmanship has its place—and we see varied examples of this with some frequency today in the likes of Catalonia, Saudi Arabia and China—a government invested in the development process will more regularly and instinctively fall back on institutional and rule-based processes. In other words, durable and deep-seated reforms are not often amenable to quick fixes.
Hence the narrative of crisis must be regularly checked with good governance standards, of which some simple parameters bear articulating:
- Does it result in institutional strengthening or the weakening or even an attack on institutions?
- Does it uphold and strengthen the rule of law, which includes international law or does it lean towards a more transactional bias?
- Is transparency and accountability observed or does an opaque process belie a philosophy of inordinate trust in a benevolent leader?
- Is it constitutionally sound or does it frequently and unnecessarily (by our democratic objectives) challenge our understanding of what is?
- Does it encourage true people’s participation and empowerment or does it result in less genuine discussion and a concentration of political power?
An application of this may take the following form:
|Issue||Crisis justification||Current track||Governance impact||Governance option|
|Federalism and parliamentary shift||Elite capture of our institutions and local political structures, centralization of national power, i.e. imperial manila||Currently charter change through con ass on a very tight timeline||Massive reform with limited people’s participation and transparency. Impact on institutions very uncertain||Very viable legislative options, on the table for some time, has not been given an equal hearing|
|West Philippine Sea||Geopolitical power imbalance on dispute over critical resources and territorial integrity||Bilateral and increasingly transactional process; UNCLOS made irrelevant to power imbalance||Disregards arbitration ruling, weakens regional security alliances, “process” is opaque and serious constitutional (territorial) questions have been raised||The ruling of the Permanent Court of Arbitration remains viable and regional security alliances in and around ASEAN remain. Diplomatic options are availing|
|War on drugs||Rising threat of illegal drug trade and resultant criminality; unreliability of and corruption in the justice system, slow justice||A violent campaign that has resulted in upwards of 4000 (and 3x as high by other accounts) largely uninvestigated deaths with little monitoring for success||Violations of local laws and international treaties and the constitution raised. Entire justice system arguably upended. A climate of impunity prevails. Major set-backs on the hard-fought credibility of our security sector, particularly the PNP.||Spotlight on drugs has been helpful but rules-based and institutional options not given sufficient consideration: many valid policy options have been on the table before 2016 as with alternative health approaches, the current bias in international community models.|
In the end, perhaps a simple equation must be upheld: both the immediate and long-term welfare of our people depend on meeting our development objectives. The Ambisyon Natin 20407 Philippine plan articulates this well. Our governance framework, with political will, is designed to guide us towards achieving them.
Most importantly, our constitutional framework is designed to address issues in a way that strengthens and upholds our democracy. It is this framework of democracy that supports and facilitates the negotiation of clamors for reform and ensures true participation on the side of the people and accountability on the government’s side.
Even in times of crisis, this must remain our bias as a nation.
 IBP Forum On Impeachment and the Current Situation, Christian S. Monsod, October 12, 2017
 “The senior justice said that failure of the Philippine government to protest China’s actions in Sandy Cay would allow China to ‘claim later on that we consented’ to their occupation of the area”.
 The cost of these crises is often measured economically in FDI losses and higher exchange rates. More far reaching perhaps are the lost opportunities of an administration gifted with such a wealth of political capital. This could be better spent resolving historically intractable issues: on advancing negotiations on both peace tables, on constraining political dynasties, on the coco-levy, on the WPS, on mining and many others.
 See for example The “East Asia Wilayah” of ISIS: A Long Time in the Making, Kumar Ramakrishna, http://www.iag.org.ph, October 14, 2017; where it observes that “the passage of the proposed BBL “which provides a regional governance system, addresses both major political and economic redistribution issues, and important religious and cultural identity needs and grievances of contemporary Moros” represented an ‘important step in insuring [the Philippines] from the threat of ISIS’”.
 The Unfortunate Aguirre: A Filipino Tragedy, John Nery. Inquirer.Net. September 19, 2017
 Again, see C. Monsod presentation for reference
 “Political will exists when 1) a sufficient set of decision-makers 2) with a common understanding of a particular problem on the formal agenda 3) is committed to supporting 4) a commonly perceived, potentially effective policy solution.” What is ‘political will’ anyway?” David Roberts, vox.com, February 17, 2016.