What crowdsourcing a Constitution means

Once again, the Senate has announced “it will not be able to immediately act” on a House resolution seeking to shift our government to a presidential federal system.

For those of us who have been in the forefront of constitutional change (parliamentary federal for me) this was expected. Senators become millionaires as members of this legislative chamber. Why should they change it? They will keep it for as long as the people at large accept their excuses to block it.” Lack of time is a favorite excuse.

Until we view it as a political conflict between the people at large and the privilege few we will never change the system. It is only a strong leader who will have the courage to step in and say “enough is enough” will get it done. We voted Duterte to do that.

We did it the other way around and appointed experts to make a draft for a referendum. It is the old way of doing things.

In my personal opinion “crowdsourcing a constitution” is a political principle and exercise more than it is about coming up quickly with a new draft of a written constitution. The political principle for crowdsourcing a constitution is to bring in the people to have a say instead of relying on a few experts.

Language is equally important as content. The panel of experts must agree to use the simple language of the crowd rather than legalese that only lawyers understand.

As Hélène Landemore of Yale University asks in her article“We the People”: “Who should write the constitution of a democratic country and, indeed, any country?

“The answer seems obvious: its people. Yet the constitutions of existing states, including democratic ones, have usually been written by small, rather unrepresentative subsets of individuals.

“Iceland’s recent experiment in redrafting its constitution has challenged the assumptions that a constitutional process needs to be exclusive and opaque. In 2013 the country came close to passing into law the world’s most inclusively and transparently written constitutional text.

This experiment – sometimes dubbed the “crowdsourced constitution” – should prove inspirational for people around the globe intent on writing, or re-writing, their own social contract.

The Icelandic constitutional process included three original features. The first one was a so-called National Forum – an upstream consultation of a demographically representative mini public of 950 quasi-randomly sampled citizens. These citizens were gathered in a one-day meeting and asked to list the principles and values they would like to see embedded in the Icelandic constitution. They listed, among others, human rights, democracy, transparency, equal access to health care and education, a more strongly regulated financial sector, and public ownership of Icelandic natural resources.

The second unusual feature was an assembly of constitution drafters selected from a pool of 522 citizens that purposely excluded professional politicians (the latter having been discredited in the eyes of the public during the 2008 financial crisis). The resulting council was characterized by relative gender balance – including 10 women and 15 men – and diverse professions beyond the usual doctors and lawyers, including a farmer, a pastor, an art museum director, a radio presenter, a trade union chairman, a consumer spokesperson, a student, and a filmmaker. The presence of Freyja Haraldsdóttir, a human rights activist affected by glass-bone disease, strikingly illustrated that popular sovereignty need not be represented only by able-bodied, middle-aged men in suits and ties.

The third unusual feature was the decision by these 25 constitutional drafters to use social media to open up the process to the rest of the citizenry and gather feedback on 12 successive drafts. Anyone interested in the process was able to comment on the text using social media like Facebook and Twitter, or using regular email and mail. In total, the crowdsourcing moment generated about 3,600 comments for a total of 360 suggestions. While the crowd did not ultimately “write” the constitution, it contributed valuable input. Among them was the Facebook proposal to entrench a constitutional right to the Internet, which resulted in Article 14 of the final proposal.

Iceland used technology of the 21st century to include the people of a nation to craft their own constitution through an open and inclusive crowd-sourcing process. Yet astonishingly, that constitution remains unenforced.

As everyone in [Iceland] knows, after the financial disasters of 2008, the citizens of Iceland began a process to claim back their own sovereignty. Building on the values identified by 1,000 randomly selected citizens, Icelanders launched a process to crowdsource a new constitution. That initiative was then ratified when the Parliament established a procedure for selecting delegates to a drafting commission. More than 500 citizens ran to serve on that 25 person commission. Over four months, the commissioners met to draft a constitution, with their work made available for public comment throughout the process. More than 3600 comments were offered by the public, leading to scores of modifications. The final draft, adopted unanimously, was then sent to the parliament and to the people. More than 2/3ds of voters endorsed the document in a non-binding referendum as the basis of a new constitution.

Never in the history of constitutionalism has anything like this ever been done. If democracy is rule by the people – if the sovereignty of a democratic nation is ultimately the people – then this process and the constitution it produced is as authentic and binding as any in the world. Yet the parliament of Iceland has refused to allow this constitution to go into effect. And the question that anyone in the movements for democracy across the world must ask is just this: By what right?’

“When the people have acted as they have in Iceland – crafting a constitution in the most inclusive and reflective way that has ever, in the history of constitutionalism, happened, and then endorsed that work by a popular vote, by what moral authority does the Parliament now say no? No doubt, there are parts of the constitution that some don’t like. But democracy is not a promise of perfection. And no constitution in the history of the world has ever been loved by everyone it affected – just ask the million African slaves whose freedom was made unconstitutional through 1808 by America’s popularly ratified constitution.

The question for Iceland was as it is now for the Philippines is who is sovereign?

As notions of sovereignty have evolved across time – from god, to a king, to an elite, and finally, to the people – the people of the world look to each other for inspiration. The work of Iceland’s people in crowdsourcing a constitution has inspired millions. The resistance of Iceland’s parliament has puzzled many more. Thomas Jefferson, drafting America’s Declaration of Independence, spoke of the people’s “unalienable right to alter or abolish” a constitution. In 2016, we should finally amend his words to make the point even clearer: It is the inalienable right of a people to alter, or abolish, or establish a Constitution.

We now have two constitutional drafts before us, one made by an appointed commission headed by former Chief Justice Reynato Puno and another by a group called PUBLiCUS Asia, Inc. and Tanggulang Demokrasya (Tan Dem), Inc. that claims their version is crowd sourced. And worse with a Senate refusing to act on it.