The constitutional moment
WHAT does “constitutional moment” mean, and when does one know it is there? It is when all the core concerns in making a new Constitution or amending an existing Constitution are present. This, according to participants of the second Melbourne Forum on Constitution Building in Asia and the Pacific held last October 3-4 at UP Diliman. Jointly organized by International IDEA and the Constitution Transformation Network, it was hosted by the UP Department of Political Science and the UP Center for Integrative and Development Studies.
Case studies of country experiences in constitutional building were shared by some 30 participants from Thailand, Indonesia, Maldives, Argentina, Taiwan, Pakistan, Chile, South Korea, Kyrgyzstan, Mongolia, Sri Lanka, Nepal, Myanmar Solomon Islands, Papua New Guinea, Bougainville, India, Fiji, Iraq, and the Philippines, with representatives of the United Nations and the organizing institutions on the theme “From Big Bang to Incrementalism: Choices and Challenges in ConstitutionBuilding.”
Randy David said he was intrigued with the “big bang” concept which the organizers noted was a way of describing the “revolutionary” approach taken in constitutionbuilding when the institutions are relatively weak. Incrementalism will involve a slower process as it would take continuing negotiations between parties, between and among diverse sectors – the elite and the masses, and civil society groups.
In five sessions on Making a New Constitution, Amending an Existing Constitution, Moving between a Presidential System and a Parliamentary System, Moving between a Federal/Devolved and Unitary State, and, Deferring or Postponing Controversial Issues, the case study presenters shared interesting insights on the magnitude of the constitutional change; how and why decisions were made about both the process and the substance of constitutional changes; the consequences of particular choices for the wider constitution building project; and insights that can be gained from particular case studies and their potential application in other contexts.
In his presentation of the Philippine 1987 Constitution, Benny Bacani, founder and director of the Institute for Autonomy and Governance based at Notre Dame University, noted that although it was a product of the People Power revolution, drafted and ratified with the aim of restoring democracy, the process was neither revolutionary or big bang. He noted that because of the limited time frame in the drafting (111 days), it looked back; it was not a forward-looking document that could have strengthened challenges of inequality and globalization. He was partly right about globalization but I still argue that the concept of social justice is substantive, and did address inequality except that they were not adequately implemented. There was not enough opportunity to flesh out concepts such as environment, information technology, and media because of time constraint.
Most of the country case studies recognized the critical role of independent and pluralistic media and the new information technology in facilitating people participation in constitution building; the importance of recognizing aspirations of a plural society and adopting mechanisms of popular participation such as the initiative and the referendum; the role of the Executive in influencing decision-making of other powers; and the need to decentralize and devolve power.
During the session on Reflections, the UN Representative shared insights on what it is now doing towards establishing norms and principles in support of inclusive participation, efforts in the peace process as well as resolutions on national reconciliation, conflict prevention, and good governance. It was open to helping countries in strengthening multilateralism through agreements on strict adherence to the Universal Declaration of Human Rights and other international agreements.
I shared the view that the Constitution must truly reflect people’s aspirations and hopes. That it is important to establish continuing and dialogue with the people, and that this be done either directly, through trusted people’s representatives, using a mix of traditional and mass media, social media, and indigenous media. This time, we must take time to engage with the people, internalize their thoughts so that these become reflected in the document, and during the final referendum. It is about time we examine the language of the Charter, which is too elitist and therefore is not too well understood by the people. In fact, the last survey showed that less than 50% of the people fully understood the Constitution. We now must endeavor to achieve a balance in terms of content – between our adoption of what we have borrowed from the US, Roman, Spanish, and other cultural influences, with that of our own indigenous laws and cultural practices. The original draft should be written in the language of our own people. We must humanize the Constitution, the highest law of our land through the use of a language that is understood by the people. Then, we can say, it can finally help to unify us into one community.
Miriam Coronel Ferrer, shared perceptions on current efforts to shift to federalism and amend our Constitution, which she noted, appear as being “steam-rolled” and “fast-tracked” under a popular president. She cited questions that the public wants to know: “Would these changes be incremental? Legislated? Through what mechanism? Constitutional Convention? Constituent Assembly? Other means? She further noted the current state of distrust in our institutions, and that there could be a “Trojan horse” or a “Pandora box” lying around. Her conclusion is to defer the constitutional moment and wait until we have a more enlightened leadership.
These case studies will soon be published into a book by International IDEA (international institute of democracy and electoral assistance). Its Constitution Building Program produces books and resources available at www.ConstitutionNet.org.