What the Con-ass should be

Congress is now on full Charter change (Cha-cha) mode. Under the 1987 Constitution, Congress could act as a constituent assembly (Con-ass) to rewrite the Charter, or it could enact a law calling for the election of delegates to a constitutional convention (Con-con) that will be mandated to do this job. The number of delegates, the date of the election, and other pertinent details will still need to be specified in this legislation.

President Duterte and his political party, PDP-Laban, have announced their preference for Con-ass because they see it as the practical choice, disregarding the point of critics—among them academics and civil society personalities—that given the gravity of this political exercise for all Filipinos, the tab for it should not matter at all.

Those who push for a Con-con believe such a body will be less beholden to the President as the current Congress seems to be. No coincidence that the memory of how President Ferdinand Marcos was able to extend his term for 13 more years by railroading changes to the constitution is still fresh for many among this group.

Given the Duterte administration’s resolve to push ahead with Cha-cha via the Con-ass mode, it is only natural to ask: How should this revision process be conducted? More critically, what measures must be undertaken to prevent any of the machinations that gave rise to the 1973 Constitution?

According to the book “The 1987 Constitution: To Change or Not to Change?,” Congress as a Con-ass performs a “super-legislative” function that inherently belongs to the people. Indeed, for the specific purpose of revising the Charter, the Con-ass assumes the sovereign power of the people. The only check to this exercise of sovereignty is the plebiscite where the people can reject the revisions proposed by the Con-ass.

Notably, while the constitution prescribes the possible modes of revision, it leaves 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 Conass and any of its subcommittees must be open to the public. The media must have full access to records and papers related to the drafting process.

The participation of the people in drafting the new constitution is critical as well. Therefore, genuine and inclusive public consultations must be conducted, preferably giving priority to the farthest areas of the country.

Furthermore, the Con-ass must put up a website wherein updates on the working draft and the writing process will be posted. It must likewise have a space where the people can express their comments and views.

After the final version of the working draft is determined by the Con-ass, there should be a sufficient period allotted for public debates. This time will be very important because this is when 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 people’s minds must be clear when they decide to ratify or to rebuff the proposed draft in the plebiscite.

It cannot be emphasized enough that the new constitution must 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. More importantly, any attempt at convening the Con-ass without meaningfully engaging the public must be rejected by Filipinos.

We must not allow a “preordained” draft charter to be forced on us like the 1973 Constitution was. As the saying many Filipinos are fond of goes: Fool me once, shame on me. Fool me twice? Never again!

———— 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.