COMMENTARY: What to expect in the constitutional drafting process

MELBOURNE, Australia (MindaNews/02 December) — Congress’ shift to Cha-Cha mode is happening soon. And the only way this does not eventuate at all is if Bongbong Marcos wins his election protest and becomes Vice-President. For I highly doubt Filipinos will ever agree to change the charter while there is a Marcos in Malacañang.

Ironically, the recent decision of the Supreme Court to allow the burial of Ferdinand Marcos, Sr. in the Libingan ng mga Bayani has unravelled that many Filipinos still remember the dark days of Martial Law. And that includes how he manipulated the drafting of the 1973 Constitution to establish his dictatorship.

Nevertheless, the responsible thing to do is still to prepare for the constitutional drafting process. The Constitution prescribes the possible modes of revision but leaves it to the drafting body to devise the mechanics of the writing process itself.

In determining the rules and procedures of the drafting process, transparency is vital. For without it, the resulting constitution may have little or no legitimacy at all. Hence, it is imperative that they must be properly published beforehand and easily accessible to the public.

Moreover, all proceedings by the drafting body 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 absolutely transparency from day one.

The participation of the people in drafting the new constitution is critical as well. Again, the depth of involvement of the community in the writing process directly impacts the legitimacy of the end product.

Therefore, public consultations must be conducted. Preferably giving priority to the farthest areas of the country. There must be mechanisms that will allow the public to submit proposals to the drafting body as well as be heard during sessions.

Furthermore, the drafting body must put up a website wherein updates on the working draft and the writing process are posted. Obviously, the public is free to air their views on the progress of the draft itself particularly in matters of substance and style.

Needless to say, the drafting body must take in consideration the public pulse. But they must also engage the assistance of constitution-drafting experts. We definitely do not want in the new constitution an utterly ridiculous provision like Article XVI, Section 10:

“The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.”

After a working draft is determined by the drafting body, there should be a sufficient period allotted for public debates. This time will be very important because this is where the draft of the new constitution will emerge.

And when the final draft is done, there should also be an appropriate amount of time to allow the public to reflect on it. The peoples’ minds must be clear when they decide to enact or to reject the new constitution in the plebiscite.

Ostensibly, organizing an effective and efficient secretariat to coordinate all the requirements mentioned here is absolutely necessary. Indeed, the quality of the team organized for this purpose can make or break the drafting process itself. Hence, only the most committed Filipinos should be considered here.

We must bear in mind that constitutional revision or charter change or whatever it may be called, is fundamentally a nation re-building effort. Therefore, it is imperative that Filipinos be extensively involved in the drafting process as well as to intently monitor the drafting body. Correspondingly, the latter, be it a Con-Con or a Con-Ass, must consider the minimum requirements for the constitution writing exercise set forth here.

Lastly, it cannot be emphasized enough that we want the new constitution to be more reflective of the times and responsive to the needs of all Filipinos. Therefore, we must be ready to be actively and directly involved in the drafting process. Indeed, we should be ardently preparing intelligent and coherent proposals as to what the new constitution should contain.

Specifically, we should be probing the text of the 1987 Constitution for provisions that need to be revised or removed altogether. A perfect mental exercise over the Christmas holidays. (MindaViews is the opinion section of MindaNews. Michael Henry Ll. Yusingco, a practicing lawyer, is the author of the book “Rethinking the Bangsamoro Perspective.” He conducts research on current issues in state-building, decentralization and constitutionalism.”)