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Constitutional reform – what may lie ahead

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THE LEGAL FRONT
By J. Art D. Brion (ret.)

On July 17, 2018, the Cosultative Committee (ConCom) submitted its corrected final copy of its draft constitution to the President. From the President, this draft shall expectedly go to Congress as his recommended working draft when (and if) Congress convenes as a Constituent Assembly, the body that shall draft an amended constitution for submission to the people for ratification.

For now, whether Congress shall act as a Constituent Assembly is still a hanging question. A companion question is: what will Congress do with the ConCom draft when and if it acts as a Constituent Assembly?

If Congress cannot act because of disagreements on how the Senate and the House of Representatives shall vote as a Constituent Assembly, the open way forward is to adopt either of the two other means the 1987 Constitution provides – to call a Constitutional Convention or to introduce amendments via People’s Initiative.

It may be too early, for now, to give up on the Constituent Assembly route. While this may not be the best route, it might be the most expeditious under the circumstances. A Constitutional convention may give citizens the chance to directly participate but the process could be lengthy, costly and unwieldy, while People’s Initiative can only introduce amendments, not revisions.

(We should not forget that in an extreme scenario, the Executive may opt for the extra-constitutional route – by executive fiat through a revolutionary government as President Cory Aquino had done – but this may be an irreversible step fraught with risks and uncertainty, and one that is not openly discussed, only carried out.)

Whether Congress, as a Constituent Assembly, will adopt the ConCom draft as submitted to it by the President, or simply use it as the take-off point for the discussion of a draft uniquely its own, is largely a question whose answers may depend on political developments.

A politically dominant President Duterte who will exert his will on Congress could leave the ConCom draft largely intact. The primary provisions most likely to survive intact would be federalism, the BBL, and the martial law powers of the President; other high-profile provisions, such as the prohibition on dynasties, could suffer changes, albeit cosmetic ones. In sum, there could be some give-and-take but the ConCom draft on the provisions important to the administration shall largely be left intact.

Due to unavoidable wear and tear of governance (possibly due to developments with negative impact on the economy and people’s pocketbooks; mishandled political developments; or large scale or high-profile scandals), a less politically potent President Duterte may not be as effective in influencing the draft constitution to be submitted to the people for ratification.

In either scenario, people participation will be critical. Despite a politically influential President, massive popular outcry (as had happened in the past) may still lead to the dilution even of the President’s primary provisions.

For example, it may still be possible to do away with total and immediate federalism, adopting it for now only for the Bangsamoro region and leaving the door open to its future adoption in the Cordilleras and other regions based on defined developmental standards, while recognizing even greater autonomy for local government units and adopting a parliamentary form for the national government.

A less politically potent President may inversely lead to a reinvigorated opposition which can effectively influence the route and substance of constitutional reform if its members can get their acts together. An ascendant opposition, if it cannot totally resist constitutional reform, will not fold but will fall back on restricting the changes to the 1987 Constitution.

This fallback position could still lead to the adoption of some of the salutary and undisputed provisions of the ConCom draft, such as the definition of the national territory, the expansion of the bill of rights provisions and the removal of the ambiguities in the 1987 Constitution, among others. In sum, the ConCom draft could still be very useful.

Whatever political scenario may take place, a new (or even the current) constitution can only serve its purpose if the government will only implement it in good faith. The best constitutional terms shall be for naught if the Executive’s implementation will consciously subvert clear constitutional terms and if the Judiciary will be accommodating for the sake of expediency (as the nation has seen in the past). This development would effectively leave the constitution a mere shadow of what the people had ratified.

True, constitutional shortcuts may quickly resolve the nation’s immediate problems. But they could also be shortsighted solutions that might yield unintended consequences in the long term; ultimately, these solutions could serve as door-openers for larger problems for the nation. We may thus be better off if the government would strictly recognize its constitutional limits and implement the constitution in good faith. “Good governance, less politics” is how some may call this conditionality.

A constitution, too, should be understood and consciously embraced by the majority of our people. Rules, even constitutional ones, will not serve us well if they will not be followed either because the people do not understand them, or continue to resist them. Either way, our current constitutional discussions would be useless because they would not benefit the people – the intended ultimate beneficiary of all constitutions and good government.
Thus, I heard Secretary Harry Roque loud and clear when he said sometime in May that there is a greater need to bring the discussions to the level of the people and greater efforts on the part of government to carry this objective into effect.

I can only hope that the administration shall also allow the opposition the same opportunity to carry its message to the people. Only through this benign approach can the people be afforded the greatest chance to understand the Constitution and appreciate the efforts to reform it. This is the best way to an enlightened populace, a citizenry aware of its rights and its responsibilities, and full co-participants in nation building.

jadb.legalfront.mb@gmail.com

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