Con-Ass or Con-Con?

Published January 23, 2018, 10:00 PM

by Restituto Cayubit

Dean Art D. Brion
J. Art D. Brion

By J. Art D. Brion (ret.)

(Fourth of a Series)

The season for constitutional review is now really with us. Its arrival can best be seen from the dispute between the House of Representatives and the Senate on how they shall convene and vote to determine whether Congress shall act as a Constituent Assembly or call for a Constitutional Convention.

This dispute is not without its silver lining as one of its effects is to highlight the business at hand – the amendment of the 1987 Constitution. Unlike some who view this political wrangling with dismay, I am glad this problem has surfaced. First, it is almost inevitable, given the position that the House, through its speaker, has taken. Second, nothing can really whet the public’s imagination and capture its interest in the constitutional process better than a dispute of this kind.

The constitutional amendatory process essentially has two aspects – the proposal for amendments (via a Constituent Assembly or a Constitutional convention) and the ratification by the people. Everybody now is keenly aware of the proposal aspect; very few have really thought through the requirements of a meaningful ratification.

To ratify means “to approve and sanction formally.” For the people to meaningfully approve, they must in the first place know what they are approving. This implies communication and understanding of the proposals to be ratified before ratification is made.

Understanding, of course, is a high threshold and one that varies, in light of people’s differing literacy levels. Understanding approaches the ideal level when the people themselves are consulted beforehand by their representatives on what they wish to see in the Constitution.

I point all these out because of my experiences and observations in the ratification of the 1973 and the 1987 Constitutions. These observations left me keenly aware that the ratification process can be improved to make the people’s approval a knowing and meaningful one.

In the 1973 process, I saw no meaningful ratification as the process only required the raising of hands in barangay meetings under the shadow of martial law. The 1987 Constitution process, on the other hand, was not markedly better, given constitutional proposals that were prepared by handpicked framers and an approval process under a revolutionary government.

Additionally, in both constitutions, communication of the terms to be approved were, at best, cursory and took on the appearance of a partisan political exercise. Under the shadow of martial law in 1973, and with President Marcos gone, his party in disarray and shouts of “people power” still resounding in the air in 1987, there was hardly any room for the open discussion of contrary views.

To my mind, equivalent conditions would be approximated if the Constitution would be amended today via a Constituent Assembly that is dominated by the ruling party’s overbearing super-majority. With these ruling politicians as members of the Constituent Assembly, party positions cannot but prevail as the proposals to be submitted to the people for ratification. In other words, we would not have learned from the lessons of 1973 and 1987; the new amendments shall come with a displeasing political aftertaste.

The forthcoming PDP-Laban tsunami (to use the word I heard in a TV forum) can already be felt from the publicized PDP-Laban public meetings where its officials have started the hard sell of their federal-parliamentary line of amendments. They have not minced words and have even resorted to threats – to retaliate against their constituents through their budget. So far, the opposing views have only been available from the framers of the 1987 Constitution in scattered TV talk shows, and from individual efforts of interested parties. The situation will get worse once the government uses its media might to support the ruling party.

This situation – unless somehow effectively reversed – practically means that only the PDP-Laban draft shall be on the table; the Liberal Party, in line with the Aquino position espoused by the framers of the 1987 Constitution, would presumably simply opt to cite the “perfect” 1987 Constitution which they want to retain. This means, too, that the proposed constitutional amendments would be discussed along partisan political lines and on the basis of lopsided political promises, not on the merits of the proposed amendatory terms.

The initial constitutional approach would thus be a start on the wrong foot; the result could only be the intermingling of the ratification process with politics. Politics, as we all know, has always been one of the main causes of our problems; we have too much of politics to the point that everything – even the acts and functions required to be apolitical – ends up politically motivated. Politics even takes on an unforgettable sinister meaning when it is mean and is used to hurt.

If we will seriously hope for constitutional amendments arrived at through meaningful people participation and with the minimum of politics, the proposal stage of the amendatory process should be through a Constitutional Convention where everyone, not only the politicians, will have the chance to participate.

A Constituent Assembly can Never equal an open convention in perking up people’s interests in the Constitution and its amendments. The process of choosing delegates to the convention alone – where potential delegates are chosen by the people on the basis of their presented proposals and through their publicly declared positions on issues – will be a very educational process for the people. This kind of exercise, too, adds considerable integrity to the process by fostering action based on discernment; ultimately, the result is the development of our political maturity as a people in the practice of democracy.

While political parties can hardly be dissuaded from informally intervening in the election of delegates, the Constitutional Convention route would essentially still be non-partisan since political parties would not be formal participants. Of course, in terms of practical reality under our present political situation, whoever get the blessing of our popular President stand the greatest chance of being chosen as delegates.

Still, the President’s open endorsement is not equivalent to political party participation, although the President is a politician and is the titular head of the PDP Laban. The PDP-Laban is not President Duterte and vice versa; the President stands taller than his party.

It is one thing, too, for the people to toe the line of the party to which they belong or which they resignedly accept for its current political dominance, and another thing for them to follow the principles espoused by a political figure they admire; the latter course of action is a lot closer to a free and independent choice than the former.

In any case, a Constitutional Convention will not at all hinder the PDP-Laban or any other political party from presenting their proposed amendments; these draft proposals can always be presented and sponsored on the convention floor.

Readers can contact the author for their comments and questions at [email protected]