A different kind of constitutional convention
CAGAYAN DE ORO CITY (MindaNews/12 August) — This is the fourth and final installment of my series on constitutional change. In the preceding article, I explored various approaches to federalism. I continue that discussion in this article but also identify other contentious issues that might come out of the process of constitutional change. I also propose here a way of organizing a constitutional convention that is not costly and that could provide a dynamic and innovative way of changing the constitution.
On the shift to federalism, I expect former senator Nene Pimentel, to tower high in the debate on its form and details As the most prominent proponent of federalism in the country and the founder of PDP-Laban, Pimentel has been at the forefront of this advocacy for years. Based on his proposal, the federal government for the Philippines will create roughly 11 federal states, particularly four in Luzon, four in Visayas and three in Mindanao. Luzon will be broken down into the Northern Luzon, the Central Luzon, the Southern Tagalog and the Bicol Area. While Metro Manila will make up the federal capital. Luzon will be broken down into the Northern Luzon, the Central Luzon, the Southern Tagalog and the Bicol Area. Metro Manila, on the other hand, will make up the federal capital.
Politically, there will be intense discussion on the desirability and feasibility of shifting to parliamentary system of government, or if President Duterte’s preference is heeded, to a combined presidential-parliamentary form of government similar to that of France. Although President Duterte has criticized the party list system, a parliamentary system will actually enhance the role of political parties. As in the combined presidential-parliamentary system of government, we can also have a combination in a dual voting system where every voter can vote for both a political party and an individual. It should be noted that a parliamentary system can also be bicameral. If we decide to still have a senate, my hope is that the senators will be elected by regions rather than at large.
On the economic front, some cha-cha proponents claim that certain provisions of the 1987 constitution have greatly limited the country’s potential for growth, and these protectionist provisions have resulted in worsening levels of poverty. They say that it is high time to make the country globally competitive and attractive to foreign investments. In Pres. Estrada’s term, the attempt to change the Constitution focused mainly on studying how its nationalistic and economic provisions can be changed to promote development. The Estrada administration perceived that the economic provisions stifled government’s flexibility to formulate economic policy and to attract investments. Other economic provisions that might be reviewed are the equity restrictions in the Constitution that have denied Filipinos access to new technological innovations that require huge investments that local companies find difficult to invest . This category entails the liberalization of investments in natural resources, mass media and advertising, education institutions and public utilities, franchises and infrastructure.
Personally, I am open to lifting economic restrictions in some areas. However, I think we should continue to reserve land ownership to Filipino citizens and utilization of natural resources should continue to have citizenship-based limits. With so many poor people already without land and access to natural resources, liberalization of land and natural resource ownership and utilization will only exacerbate social and environmental injustice.
Other hot bottom and highly controversial issues that may come out during the constitutional change debates include the anti-dynasty provisions and the extension of term limits of certain elective officials.
Now that I am at the end of this series of articles, let me articulate again my preference for a constitutional convention as the mode of changing the Constitution. A constitutional convention (ConCon) has, by its nature, plenary power. It is free to propose anything. It is supreme within the domain of its legitimate authority. It cannot be dictated upon by the President or by Congress. It is specifically designed for situations when the decision is to replace the constitution.
Congress as constituent assembly (Con-Ass) is the better mode when the intent is simply to amend specific provisions. With the legislative responsibilities of Congress, it does not have the time to thoroughly review and write a new constitution. An appointed constitutional commission (ConCom) could help Congress do that but that is equivalent of having legal staff. If the constituent assembly mode is taken, the burden would still be in Congress to debate and adopt the new constitution.
Costs has been mentioned as the reason for choosing Con-Ass over ConCon. I understand the concern but perhaps there is a better way to address this issue. One is to have a smaller constitutional convention – of delegates not elected by district but by province (one each) or even by region (2 each). Another is to have an appointive ConCon – with designated ex officio members (all former Chief Justices, all former Senate Presidents, all former Speakers of the House) and representatives from sectors and geographical regions, including constitutional legal experts recommended by the legal community. A combination of these two options is also possible, thus a ConCon of regionally elected representatives (2 each of around 40) and appointive ones (lets say another 40). Under these last three options, the costs would be almost equivalent as the constituent assembly option.
It is time for constitutional change. Lets not fail our people on this one. (MindaViews is the opinion section of MindaNews. Antonio “Tony” La Viña is a human rights and environmental lawyer from Cagayan de Oro City. He was a member of the Government of the Philippines Peace Panel that negotiated with the MILF from January-June 2010. He teaches Constitutional Law at the Xavier University in Cagayan de Oro City and at the Ateneo School of Government at the Ateneo de Manila University where he used to be Dean. He can be reached at Tonylavs@gmail.com. Follow him on Facebook: firstname.lastname@example.org and on Twitter: tonylavs.)