Calls to jail the corrupt are fast morphing into calls for a transitional government to be established to undertake wholesale reforms of government and politics. But is a transitional government legitimate? Is it consistent with the Constitution?

In his Thought Leaders piece, “Hybrid constitutional solution to crisis,” law professor and civil society leader Tony La Viña discusses transitional government as an “endgame” scenario to the crisis brought by revelations of systemic corruption. Resisting to merely dismiss the concept as extra-constitutional, he argues that the transitional government is a “hybrid” solution between a predictable constitutional path to change and an extra-constitutional one where anything goes. 

Importantly, La Viña underlines that a transitional government is not a civilian-military junta which would subvert the Constitution. Rather, it still takes the Constitution as starting point; it departs from the strict letter of the constitution but does not throw it out entirely.

It is premised on both President Bongbong Marcos and Vice President Sara Duterte resigning voluntarily or being removed through conviction by the impeachment court (the consequences of both resignation and impeachment are governed by the Constitution). Further, the Senate President, who will then, by operation of the Constitution, succeed to become acting president, must quickly establish an unelected transitional government presumably composed of the leaders of mass mobilizations.

The transitional government will then advise the acting president on the required major constitutional amendments and legal and institutional reforms, including most importantly the operationalization of the anti-dynasty provision of the Constitution and cleaning up the judiciary which will decide the corruption cases. Congress will then have to enact these advised changes before elections are held to constitute a new government.

So far so good, but how can this work in the real world?

Unlikely scenario but…

Admittedly, the scenario where both President Ferdinand Marcos Jr. and Vice President Sara Duterte are convinced to resign or are removed is today unlikely. Nevertheless, it is not impossible given the fast-moving political events. Historically (with reference to EDSA II), the military’s withdrawal of support (arguably illegal) is required to prompt the resignation of the President. The military must be unified in transferring support to the acting president. A divided military can lead to bloodshed and violent repression.

The acting president will have to be onboard plans for a transitional government. Otherwise, under the constitution, he will simply call for a snap election without undertaking any constitutional or legal changes. Additionally, the acting president will still need the support of Congress to enact constitutional and legal changes advised by the transitional government.

Congress can still water down advised changes to the Constitution and laws. For example, what constitutes a political dynasty that should be banned from politics is a question that has been neglected by Congress for decades. In a dramatic change, Speaker Bojie Dy is now pushing for this agenda himself. But of course, as always, the devil is in the details. Indeed, the definition of political dynasty is now emerging as a contested issue with the Makabayan block proposing a more expansive definition (fourth degree of consanguinity and affinity) than other legislators (second degree). Can we trust Congress to do the right thing during the transition? What is the right thing to do anyway? 

Given the failure the Philippine judiciary to fight corruption in the past, as La Viña also suggests, ensuring the integrity of the judiciary will be a key reform that will need to be implemented during the transition. But how will this be accomplished exactly? Will the judiciary be purged? Proponents will need to turn to the experiences in other countries, including with transitional justice tools such as lustration.

Getting a transitional government in place peacefully installed is a significant challenge that can only be navigated by leaders in the military, government and civil society acting in unity. Assuming the transitional government ever gets established, continuing pressure from mass mobilizations will be required to support it vis-à-vis the institutions it aims to reform. Proponents of a transitional government must have clear and smart reform goals that the broad population understands and supports. On top of that, the leaders of the transitional government must themselves withstand corruption and disinformation that will surely be deployed by forces opposed to them.

The legitimacy of the transitional government solution will not only depend on it perceived adherence to the 1987 Constitution. Rather, the ability of its proponents to convince people that bloodshed and violent repression will be averted and the clarity of the envisioned reforms that will be implemented during the transition will also be important considerations. – Rappler.com

Jayson Lamchek is a Lecturer at Western Sydney University, Australia. As a lawyer at the Public Interest Law Center (PILC), Jayson was a private prosecutor in the impeachment trial of President Estrada. He witnessed the unfolding of what is now called EDSA II.