The con­sti­tu­tional mo­ment

Manila Bulletin - - Views • Features - By FLORANGEL ROSARIO BRAID My email, Florangel.braid@ gmail.com

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.

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