By Michael Henry Ll. Yusingco

PATHOLOGIES in a constitution can emerge during its reign. These pertain to provisions in the constitutional text itself that may have been designed with good intentions but have eventually become debilitating to the political system it purports to govern.

The 1987 Constitution is not immune from having pathologies. Ideally therefore, Filipinos should not be averse to seriously pursuing constitutional reform.

However, any proposition to amend or revise the 1987 Constitution has always been controversial. In fact, past administrations have all failed to launch charter change initiatives. And the present one seems to be facing the same old hurdles as well.

In 1986, the Constitutional Commission formed by President Cory Aquino was working under a strict deadline, drafting a new charter to formalize the country’s transition from dictatorship to democracy. Today the circumstances are vastly different. Filipinos actually have the luxury of time to pursue constitutional reform.

For constitutional law scholars and practitioners, the active engagement of the people in the entire constitution-drafting process is a key factor in demonstrating the internal legitimacy of the outcome as well as securing for it the necessary external validation. Therefore, Filipinos must not contemplate, or even tolerate, an elite-driven and -dominated constitutional reform process.

Engagement is usually implemented via citizen assemblies wherein deliberative discussions relating to constitutional reform are facilitated. Deliberation in these assemblies means the open exchange of ideas and insights with participants willing to listen, reflect and, if warranted, change their views.

But the most crucial role of these deliberations is to give the people the platform to frame the issues that need to be addressed in the constitutional reform initiative. In a way, these assemblies reflect the moment when citizens actually take ownership of what their constitution should be.

Pertinently, the Barangay Assembly mechanism in the Local Government Code meets these prescriptions quite perfectly. For one thing, it is the most convenient way to gather ordinary citizens and give them the opportunity to speak out and be heard. And indeed, by statutory mandate the barangay is a “forum wherein the collective views of the people may be expressed, crystallized and considered.”

However, utilizing the Barangay Assembly to facilitate deliberations on charter change would require the participation of constitutional experts. In this regard, groups like the Philippine Constitution Association, the Integrated Bar of the Philippines, and the Philippine Association of Law Schools can be commissioned to provide warm bodies to assume the role of moderators.

These volunteers though will not only facilitate the discussion of the relevant constitutional issues, but they must also provide some basic education about fundamental constitutional principles to the participants of the Barangay Assembly.

The program can consist of interactive lecture-style sessions first, supported by pre-session reading materials assigned to participants, and then followed by a series of deliberation sessions.

The targeted output for each Barangay Assembly should be a position paper outlining pathologies in the 1987 Constitution and the concomitant remedial action that must be undertaken. These position papers can then be formally endorsed to Congress to be utilized as resource materials in the revision process.

With regards to the constitution-writing process itself, the proceedings of the drafting body, whether a Constituent Assembly or a Constitutional Convention, must be open to the public. The media must have full access to records and papers related to the drafting process. The key point here is that there should be complete and absolute transparency from day one.

Moreover, there must be mechanisms that will allow civil society organizations, business groups and academic institutions to submit proposals to the drafting body as well as for private individuals to be heard during formal sessions.

The drafting body must likewise put up a website wherein updates on the working draft and the writing process are posted. Allowing the public to comment on the progress of the draft itself in matters of substance and style and for the drafting body to respond to these concerns accordingly.

Note however that when the final draft is done, there should also be an appropriate amount of time to allow the public to reflect on whether to ratify or to reject the new constitution in the plebiscite. Filipinos must be given the opportunity to get their minds ready before making this big decision.

To conclude, according to the “Guidance Note of the Secretary-General: United Nations Assistance to Constitution-making Processes” (April 2009) — “Inclusive and participatory processes are more likely to engender consensus around a constitutional framework agreeable to all.”

Now that the administration has decided to take it slow with its charter change drive, the focus can be on the quality of the process, ensuring it is truly inclusive and participatory. Indeed, more effort can be exerted to make constitutional reform a genuinely deliberative and transformative exercise for all Filipinos.

Moreover, not being bound by an unreasonable schedule makes a huge difference. The long series of deliberations will ensure a high voter turnout in the plebiscite. More importantly, Filipinos will be coming to the voting booth understanding what their vote would mean for them and the future of the nation.

But whether constitutional reform will be commenced through the Barangay Assembly mechanism or not, Filipinos just cannot leave constitutional reform in the hands of politicians.

The infamous Resolution of Both Houses No. 15, a draft charter created by the House of Representatives under the auspices of former Speaker Gloria Arroyo, is a warning that cannot be ignored.

Dynastic politicians will not hesitate to hijack charter change to perpetuate themselves in their positions of power. And the only way to keep this mob in check is for Filipinos to be actively and intelligently engaged every step of the way.

In fact, if this administration truly envisions charter change as an initiative to improve the lives of Filipinos, then they must prevent political elites from railroading the constitutional revision effort. Filipinos must keep in mind that the drafting process described here is preferable because the engagement of the people in the deliberation and drafting stages will ultimately be felt as a true act of collective decision-making. It will foster in Filipinos that sense of ownership over charter change which most likely did not happen for the 1987 Constitution.

Michael Henry Ll. Yusingco, LL.M is a non-resident research fellow at the Ateneo Policy Center of the Ateneo School of Government.