By Clement C. Camposano
(The author is the chancellor of UP Visayas. This paper was submitted to the House committee on constitutional amendments which is holding a hearing in Iloilo City today, February 13, 2023.)
Introduction: Revisiting the design of our institutions
Much has been said about how the Philippine Senate has degenerated from being the repository of the country’s best and brightest in the field of public service to being a very expensive and vestigial appendage of government. The Senate, it is too often asserted, has become a chamber dedicated not to infusing wisdom into the legislative process but to endless and acrimonious investigations, grandstanding and puerile bickering.
We need not subscribe to this dim view of the Senate — for certainly we do have, and have had, senators who represent visionary politics, and there have been redeeming moments, such as in 1991 when a majority of our senators asserted our sovereignty and ended close to a century of U.S. military presence in the country. But clearly, it is not hard to see that the institution has not measured up to the traditional mission with which it is entrusted.
For a clear understanding of what this mission is, let us turn to the crucial issue raised in No. 63 of the Federalist Papers:
… there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?
Echoing this political tradition, which has deep roots in the Greco-Roman notion of the need for temperance in political affairs, then Senate President Manuel Quezon stated what amounted to the raison d’être of the Senate as the Upper House of the Philippine legislature during his 1916 inaugural address:
… the Senate must be a safe, immovable dam to contain any overflow of popular passion. The voice of the people is the voice of God only when it expresses a judgment formed within the safe channels of serene reflections.
Discussing the debate on the structure of the legislature in the 1934-1935 Constitutional Convention, Miguel Cuaderno, a leading proponent of the bicameral system, explained that, “Such a legislature affords a double discussion of all legislative matters, which is a safeguard against enactment of bills conceived in the heat of debate and which are often voted upon on account of partisan passion, and without regard for the viewpoint of the country as a whole” (quoted in Hayden, 1942, p. 202).
Obviously, what we have now is not the institution that Quezon and Cuaderno envisioned. Now, it would be convenient yet myopic to simply lay the blame for this failure on our senators. We believe that the Senate as political circus is merely a symptom of a deeper dysfunction. Indeed, it would make more sense to rail against our lack of so-called “political maturity” in the choice of leaders, and clearly, we are now increasingly — and painfully — aware of how our lack of civic virtue has made a mockery of our democratic processes.
Still, we need to accept that our democracy is still very much a work in progress. While we must grapple with our anemic sense of citizenship, which is an affliction we share with many other transitional democracies, it is also important for us to ask hard questions about the very design of our institutions. Could the problem be with the very way we are electing our senators?
Has our system of electing senators at large done justice to the very purpose for which the Senate was originally conceived by the architects of presidential government, which was to make possible the regulated and sober expression of popular sovereignty? Or has it not saddled us with an institution that not only does not serve its original purpose but also sustains, and perhaps even amplify, some of our dysfunctional habits and dispositions?
Precisely because we are a democracy in progress that we need to revisit the very design of our institutions to see how they might more effectively serve the purpose for which they have been created. Institutions, while imbued with fixity, are not carved in stone. All the great democracies of the world, without exception, are products not only of the brilliance of their founders but also of the spirit of reform.
This very same spirit forces us to first see what can be done to realize the vision of political temperance and restraint that originally defined the Senate as a legislative body. The alternative is to engage in political experimentation and discard the entire bicameral edifice or, more radically, embrace the parliamentary system of government.
According to Burke (1790, in Ebenstein 1960), the reform of institutions should not begin with their subversion (p. 491). We should look upon the defects of our political institutions with due caution so that “the useful parts of an old establishment are kept, and what is superadded is to be fitted to what is retained…” (p. 493). In this manner, “in what we improve, we are never wholly new; in what we retain, we are never wholly obsolete.” (p. 475). Burke adds:
If circumspection and caution are a part of wisdom, when we work only upon inanimate matter, surely they become a part of duty too, when the subject of our demolition and construction is not brick and timber, but sentient beings, by the sudden alteration of whose state, condition, and habits, multitudes may be rendered miserable (p. 493).
Containing the “overflow of popular passion”
As a political inheritance from our North American colonizer, the Senate was meant to play a crucial role within the system of checks and balances that has been the hallmark of presidential government. The Senate was envisioned to be distinctly different from the more democratic House of Representatives whose larger membership have shorter terms of office and are elected by smaller, more geographically specific constituencies.
Being the smaller and more deliberative chamber, whose members are insulated from the twists and turns of public opinion by longer terms and larger constituencies, the Senate was designed to exercise a restraining influence on the play of popular passions that readily find expression in the more democratically constituted House of Representatives.
The Senate as an institution is therefore properly associated with the more prudent and deliberate consideration of issues, while the House of Representatives with the robust assertion of popular sovereignty. This crucial difference between the chambers is meant to ensure that the democratic impulse does not result in undue haste — and ultimately into laws that are either unjust or injurious to the national interest.
It follows from this that the Senate should be served by persons who, even as they are directly accountable to the people and mindful of their sentiments, are also more thoughtful and deeply deliberative in their approach to issues. Needless to say, they have to be men and women of some intellectual depth and temperance, foresight and mature judgment. How do we find more of them?
The Philippine Senate as ‘fiscalizer’
But institutions do not exist in a vacuum. Nor are they set in stone. What was originally conceived by the Founding Fathers of the American republic as a counterweight to the more democratic House of Representatives, a notion transmitted to Filipinos by way of colonial tutelage, the Senate in the Philippines is today cast in the primary role of a constitutional watchdog.
Since its restoration after the fall of Marcos, the Senate has, among other things, assumed the role of chief “fiscalizer” of the executive branch — not always a bad thing although highly problematic if it becomes a fixation (and we think it has) leading to the neglect of the chamber’s key legislative function. The Senate too has developed a penchant for investigating scandals, some of which only have the most tangential relation to the crafting of legislation and policy.
While senators may justify all these as activities “in aid of legislation”, it may be argued that the Philippine Senate has yet to distinguish itself in its constitutional role of tempering our democratic impulses, and consequently infusing wisdom into the legislative process. The Senate, it would seem, has not really served as the “Upper House” of our legislature in the strict sense of the term.
For better or for worse, the Senate now serves as the chief tormentor (or “fiscalizer”) of the Executive Branch. This, to say the least, does not lay a long-term basis for constructive politics. Instead, the Senate has come to be known for countless exposés, inquisitorial hearings, acrimonious debates and colorful if sometimes incendiary speeches. In place of the more sapient and thoughtful examination of legislative proposals one finds much posturing, political theatrics and a palpable craving for media attention.
The power to conduct inquiries “in aid of legislation” has, of course, become a constitutional issue. Instructively, in the case filed by Romulo Neri against three Senate committees investigating the NBN-ZTE scandal (G.R. No. 180643, 4 September 2008), the Supreme Court denied the motion for reconsideration of the respondent committees and ruled that:
There is no question that any story of government malfeasance deserves an inquiry into its veracity. …However, the best venue for this noble undertaking is not in the political branches of government. The customary partisanship and the absence of generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test of the constitutional guarantee of due process of law. We believe the people deserve a more exacting “search for truth” than the process here in question, if that is its objective.
These investigations have also led Congress to violate the rights of individuals, and in some cases, with tragic consequences. Senator Joker Arroyo condemned this obsession with high-profile investigations, lamenting that some witnesses have seen it fit to end their own lives rather than be subjected to public humiliation. He made the statement in connection with the 27 July 2011 suicide of Development Bank of the Philippines lawyer Benjamin Pinpin, which occurred less than six months after former Energy Secretary and AFP Chief of Staff Angelo Reyes shot himself after being grilled and humiliated in a Senate inquiry on the misuse of military funds.
Saying that “McCarthyism is a thing of the past”, the veteran legislator and former human rights lawyer called for an end to the practice of pillorying witnesses in investigations that seem to resemble the communist witch-hunt undertaken in the U.S. Congress in the 1950s (PDI, 8 August 2011).
A training ground for national leaders?
As already pointed out, it would be a mistake to blame senators for this state of affairs. As a small, independent chamber composed of nationally elected politicians the Philippine Senate actually has a built-in tendency to be at loggerheads with the Chief Executive and/or the executive branch. It is, we contend, adversarial by design.
The Philippine Senate as court of inquisition is partly the result of political imperatives demanded by the rules of the senatorial game. Without reducing politics into what rational choice institutionalists call a series of “collective action dilemmas” (because indeed reality is much more complex), it might still be helpful to focus some attention on how these rules help shape the pattern of “strategic interactions” obtaining between senators and other relevant political actors (see Hall and Taylor, 1996, p. 12).
Elected at large, senators cannot ensure their reelection any other way: In a nationwide election involving anywhere from 40 to 60 or so candidates, and covering the length and breadth of the Archipelago, personal popularity is paramount. Here, political machinery merely plays a secondary role as a means for insuring the “conversion” of a candidate’s popularity into votes.
Indeed, because they are national popularity contests, senatorial elections are skewed in favor of those enjoying what pollsters attempt to discover and measure with concepts like “awareness”, “trust rating” and “voter preference”.
When the Senate was restored in the early 1940s, among the justifications given (by President Quezon) for a nationally elected Upper House was that the chamber was going to serve as a training ground for national leaders. It was only in the decades following the EDSA Revolution, a period marked by the increasing prominence of media in our political processes, by our learned distrust for executive power, and the end of a stable two-party system, that the problematic implication of this ascribed role of the Senate fully played out.
The Senate has become not only a training ground but, in fact, a staging point for a shot (and often, it is a once-in-a-lifetime shot) at the Presidency. Presently, any senator aspiring to be Chief Executive, and who gains access to enough resources, is well positioned to promote his or her political plans, and this may well be at the expense of a sitting President and his or her Cabinet.
Having a national constituency, a senator is more likely than a congressman or a governor to nurture presidential ambition, and indeed to use the prerogatives of his or her office to lay the groundwork for a future attempt at higher office. By constantly and boldly attacking the President or members of the Cabinet — that is, “fiscalizing” the executive branch — an aspiring senator could in fact install himself or herself in the public mind as a potential occupant of the Presidency.
A brief detour: Quezon’s power play
While colonialism may have all but assured that Philippine legislative institutions would be deliberate copies of those in the United States, the Filipino system of clientilist politics and its tendency towards the relentless accumulation of power at the center would leave an indelible mark on these institutions (see McCoy, 1989). According to Hayden (1942), “…the Congress on the Pasig illustrates the mutations of political plants when far removed from their native habitat” (p. 168).
The Philippine Autonomy Act of 1916 (also known as the Jones Law) provided for a Senate whose members were elected by senatorial districts, constituencies that roughly coincide with our present administrative regions. 22 senators were elected from eleven senatorial districts, with the Governor General appointing two senators to represent a twelfth district made up of predominantly non-Christian areas.
The shift to a nationally elected Senate — done together with the restoration of the bicameral legislature in 1940 after a brief experiment with a unicameral National Assembly in the 1935 Constitution — was in fact the fruit of Quezon’s own political machinations aimed at reducing the power of the legislative branch vis-à-vis the Commonwealth Presidency.
Speaking of Quezon’s insistence on a return to bicameralism, Hayden (1942) pointed out that “… fear of a presidential-legislative conflict stood out among all the reasons which he gave for making the change” (p. 230). A unicameral legislature, according to Quezon, threatened the very stability of democracy itself (Hayden, p. 230). Still, it was one thing to restore the Senate and quite another to have senators elected at-large.
More recent scholarly opinion points to a deft power play by Quezon that led not only to his personal but nearly absolute control of the legislature. Finding the unicameral Assembly insufficiently pliable, Quezon engineered an amendment that restored the Senate and required senators to run on a national ticket. Uprooted from their independent regional bases, senators would then become beholden to executive patronage as this was the surest path to electoral victory (McCoy 1989, p. 124).
There were of course loud objections to this amendment. An organization of law students from the University of the Philippines summed up the stand of opposition politicians when it asserted that this will create a Senate that is either dominated by the wealthy who can finance a nationwide campaign or politicians who have ingratiated themselves with the President (Hayden, p. 232).
In Quezon’s Commonwealth this amendment very quickly turned the chamber into an extension of executive authority as all twenty-four of his handpicked nominees were elected to the newly restored Senate in November 1941. Parenthetically, in the same election, the Nacionalista Party captured ninety-five of the ninety-eight Assembly seats (McCoy, p. 124). One-man rule was clearly not an invention of Marcos.
The age of media (and social media) politicians
But things have changed since the days of the Commonwealth. At the end of the first decade of the 21st Century, the electronic mass media replaced party machinery as the most critical factor in winning national electoral contests (see The Laylo Report, 2010). The second decade saw the increasing prominence of digital media in electoral campaigns, with emphasis on the mobilizing power of social media platforms and digitally driven disinformation (Arugay 2022, online).
This new reality began in the late 1990s when television became the undisputed kingmaker. Citing relevant statistics for the period, Shiela Coronel of the Philippine Center for Investigative Journalism pointed out in 1998 that,
Never has television been as pervasive in the Philippines as it is now, when as many as 80 percent of Filipinos have access to a television set, even if they don’t actually own one. One of the most surprising results of a recent survey done on the urban poor in Manila was the high percentage of TV viewers, of whom 52 percent said they tried not to miss news and public affairs programs. Ask any pundit: In the 1990s, constant TV exposure is a sure-fire guarantee of electoral success (1998, online).
According to the December 2009 Standard Today Poll that looked into what voters considered the most effective means for candidates in national elections to reach and convince them, “About half of the voters find news about candidates aired on TV as well as TV commercials and advertisements as the means to help them decide whom to vote for.” In stark contrast, only 11 percent claimed that sample ballots, billboards, posters, and personalized letters were effective in helping them decide (The Laylo Report, 2010, online).
Writing about Duterte’s election to the Presidency in 2016, Aries Arugay of the University of the Philippines (2022) noted indications that Facebook has become a major source of information on Philippine politics. He goes on to cite a 2017 survey of Filipino Facebook users where “85% of respondents ‘agreed’ or ‘strongly agreed’ that Facebook was Important, 70% thought Facebook influenced their vote, and a staggering 83% reported their Trust in Facebook to be ‘some’ or ‘most of the time’”.
Arugay also observes that “[the] 2016 elections seem to be a ‘prequel’ for the succeeding years during which the Philippines has become a globally prominent site for fake news”. With internet penetration in the Philippines at 67% as of 2021, it is perhaps inevitable that social media such as Facebook and Twitter would become increasingly dominant sources of political information and influence, with candidates and parties ramping up their use of these digital platforms (Arugay 2022).
There have been other tectonic shifts too: The stable two-party system that recruited and nurtured career politicians for national leadership is no longer with us. What took its place is a more fluid system of shifting alliances built around popularity and “winnability”. Also, the Marcos dictatorship has taught many Filipinos to be instinctively distrustful of executive power.
Taken together, all these have rewritten the rules of the game. Presidential sponsorship, notwithstanding the enormous resources it makes available to the senatorial candidate, could turn out to be a serious political liability if the President is unpopular – a kiss of death of sorts. What is critically important is television “face time” and massive, favorable social media engagements that result in high awareness and trust ratings.
With high awareness and trust ratings, candidates can also more easily raise the financial and other material resources needed to support their respective campaigns. Indeed, popularity is convertible to cash.
This is the reason why, in many cases, Senate hearings have been reduced to what one observer describes as “a kangaroo court where people are called in, berated in primetime television, prejudged, and then condemned via trial by publicity” (Magno 2008). This is not, as some would like to think, necessarily on account of senators’ perverse vanity. This is a function of political reality.
The key to getting reelected (or elected the first time) into the Senate is to maintain a constant presence in television and across social media platforms. Among the most cost-effective way to achieve this is to engage in exposés, to spearhead investigations into a range of scandals in or outside of government or to level broadsides against the President or members of the Cabinet.
So important is the inquisitorial image to any senator’s chances of getting reelected that even an ally of the Aquino administration, Liberal Party Senator Ralph Recto, boasts in a full-page political ad of having “played the ‘fiscalizer from within’ as he took to task the government on programs he deemed inimical to national welfare and interest…” (PDI, 11 July 2011).
Conclusion: electing senators by region
The notion of checks and balances is an important safeguard against autocratic rule, and one that is very much in accord with our own political experience as a people. Yet this need not be pursued at the expense of political coherence.
The time has come to consider rewriting the rules in order to begin reshaping the strategic calculus for senators. Guided by the vision of the great architects of the presidential system and the current practice in mature democracies with bicameral legislatures, we propose that the Philippine Senate be regionalized — that is, for senators to be elected not at-large but on a regional basis.
Without going into details such as the exact number of senators for each region, the advantages of this shift are plain to see:
Firstly, it enlarges the talent pool since there are individuals with so much to contribute to lawmaking but who do not enjoy national renown and thus could not win in a nationwide election. These individuals might stand a chance if elections were done on a regional basis. They also need not raise the astronomical sums necessary to fund a nationwide campaign. In the end, it will be a Senate less dominated by people from already politically dominant families and by celebrities.
Secondly, it will help restore the Senate to its proper constitutional role as defined in the Western democratic tradition — as a way to infuse wisdom, sobriety and prudence into the legislative process. The dynamics of electing senators by region will make them less prone towards grandstanding, and the Senate a less belligerent and more constructive institution particularly with respect to the Presidency and the executive branch.
Thirdly, it makes for greater accountability since each senator will now answer to a well-defined constituency, without duplicating the role of representatives from the more territorially limited congressional districts. By removing the reason for their constant and intense need for media attention — they no longer need to run in a nationwide election — and having them represent specific areas of the country, senators can now focus on their primary task of lawmaking.
Finally, there will be greater equity since all regions of the Archipelago will be assured of representation. A regionalized Senate can serve as a means towards greater national integration as heretofore neglected or marginalized regions are better able to participate in the arduous task of building a national community.
Lest the point is misunderstood, making this change is not the only thing that will transform Philippine politics. Political reform is not simply a matter of rewriting the formal rules defining our institutions nor, as we already said, do we accept that politics is reducible to a series of “collective action dilemmas”.
There are other more fundamental requisites for genuine political transformation in this country. This includes the need to evolve a civic culture so that the abstract and formal rules of state institutions do not end up being reworked and mangled in the sphere of everyday life to suit private ends.
Still, our hope is that rewriting the formal rules will help create an institutional environment more conducive to the emergence of democratic practices.
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