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COMMENTARY: Diagnosing the pathologies in the 1987 Constitution

MELBOURNE, Australia (MindaNews / 19 Feb) – It seems appropriate for the 29th anniversary celebration of the EDSA Revolution on February 25 that we ponder on whether the 1987 Constitution, just like our notion of people power, has become a mere relic of a momentous period in Philippine history. Indeed, it is considered one of the most enduring constitutions in the world because it has stood for 28 years without any amendment.

Most constitutional scholars will agree that a constitution is never infallible or immortal even as they continue to debate amongst themselves the ideal lifespan of a nation-state’s constitution. But none of these experts will ever deny that pathologies in the constitution can emerge during its reign. These pertain to provisions in the constitutional text itself that may have been designed with good intentions for the polity but have eventually become debilitating to the political system it purports to govern. Our very own 1987 Constitution is no exception.

However, diagnosing the pathologies in our constitution is no easy task. But one thing is sure though. Determinations from politicians and interest groups, no matter how well-thought and presented, are not enough. In order to produce an accurate and truly legitimate result, this process demands the ardent participation of the polity itself.

Constitutional scholars have long theorized that the active engagement of citizens in the constitutional writing process actually engenders a deep sense of investment for the establishment of constitutional rules and principles in the community. Furthermore, the involvement of the people in the drafting enterprise essentially lays the groundwork for a political culture of consultation and cooperation. Indeed according to the United Nations Assistance to Constitution-making Processes (April 2009), “Constitution-making presents moments of great opportunity to create a common vision of the future of a state, the results of which can have profound and lasting impacts on peace and stability.” This collective approach in the constitutional project and its resulting benefits also holds true for constitutional reform.

Therefore, identifying the aspects of the 1987 Constitution that requires remedial action has to be carried out via widespread and substantial public dialogue. Issues such as expanded regional autonomy for Mindanao and the Cordillera, blanket prohibition on political dynasties, further economic liberalization, consolidation of social safety-nets, electoral reforms, and so forth, must all be exhaustively threshed out by the people in this nation-wide political exercise.

The concrete scenario I envision for this comprehensive “diagnostic” process is not at all complicated and implausible. I see members of a community congregate for this purpose through the barangay assembly apparatus. Admittedly, dissecting constitutional issues pertaining to good governance, economic prosperity, liberal democracy and social justice does not exactly fall within the powers of the Barangay Assembly under the Local Government Code (LGC). But this mechanism is still the most convenient way to gather ordinary citizens and give them the opportunity to speak out and be heard. After all the LGC itself considers the barangay as a “forum wherein the collective views of the people may be expressed, crystallized and considered.”

Moreover, I envisaged representatives from law schools to assume the role of moderator in these assemblies. I concede that this would be a daunting imposition on these academic institutions. But it is warranted, I daresay, under Section 5(a) of the Volunteer Act of 2007 which states—

“Volunteerism in the academe includes, but is not limited to, provision of technical assistance and sharing of technology within the academic circle, target communities and other clienteles and the upgrading of the quality of education and curriculum methodologies while providing career enhancement and exposure to the volunteers;”

The fact is law schools are the only institutions in the country where constitutional professionals, so to speak, are produced. Their knowledge in constitutional reform forms part of legal “technology” which they can share to the local communities where they belong. Needless to say, taking the helm in this task can only enhance the standing of participating law schools and can certainly be a big boost to their faculty and students.

Ostensibly, the mechanics and logistics of the sessions themselves shall be the responsibility of each law school involved. But the targeted output for each barangay should be a position paper outlining the pathologies in the 1987 Constitution and the concomitant remedial action that must be undertaken.

Indeed, this entire endeavour could be a good precursor to constitutional revision. Those position papers could all be formally endorsed to Congress and form the basis of a working draft that can initiate the amendatory process under Article XVII. It will certainly ensure that the outcome of any revision project can genuinely be deemed as authored by the people.

But this undertaking can also function as a massive civic education campaign on constitutional principles for local communities. It is highly possible that after undergoing this cathartic political exercise, Filipinos from every nook and cranny between Batanes and Tawi-Tawi, will begin to see themselves not merely as passive observers in the sidelines but as continuing stakeholders to the enforcement of constitutional rules and tenets. Simply put, the process could eventually churn out socially and politically responsible citizens.

(MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is the author of the book, Rethinking the Bangsamoro Perspective. He researches on current issues in state-building, decentralization and constitutionalism.)

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