The constitutional drafting process

The recent decision of the Supreme Court to allow the burial of Ferdinand Marcos’ remains in the Libingan ng mga Bayani sparked intense and in-depth public discourse on martial law. Inevitably, Filipinos will be reminded of how Marcos manipulated the drafting of the 1973 Constitution to establish his dictatorship.

Another decision could then imperil the Duterte administration’s plan to revise the Constitution. Indeed, the only way Charter change will be stopped dead in its tracks is if Bongbong Marcos wins his election protest and becomes vice president. For I highly doubt that Filipinos will ever agree to change the Constitution while there is a Marcos in Malacañang.

Nevertheless, I believe Filipinos should still prepare for the constitutional drafting process. The Constitution prescribes the possible modes of revision but leaves it to the drafting body to devise the mechanics of the writing process itself.

And whether a constitutional convention or a constituent assembly is tasked to revise the Charter, the constitution-making process must be transparent, participatory and inclusive. Anything short of these three fundamental requirements will adversely impact the legitimacy of the outcome.

On ensuring transparency, a public information and civic education campaign must be conducted once the rules and procedures of the constitution-making process are determined by the drafting body. It is imperative that they are published beforehand and easily accessible to the public.

Moreover, all proceedings by the drafting body must be open to the public. And the media must have full access to records and papers related to the drafting process. The key point here is complete and absolute transparency from Day One.

The people’s participation in drafting the new constitution is critical as well. Again, the depth of involvement of the community in the writing process directly impacts the legitimacy of the resulting constitution.

Therefore, nationwide public consultations to gather views and inputs for the draft constitution must be conducted, preferably giving priority to the farthest areas of the country. There must be mechanisms that will allow the public to submit proposals to the drafting body as well as be heard during sessions.

Furthermore, the drafting body must put up a website wherein updates on the working draft and the writing process are posted. Obviously, the people are free to air their views on the progress of the draft itself, particularly in matters of substance and style.

Needless to say, the drafting body must take the public pulse in consideration. But they must also engage the assistance of constitution-drafting experts. The new constitution should not contain an utterly ridiculous provision like Article XVI, Section 10:

“The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.”

After a working draft is determined by the drafting body, there should be a sufficient period allotted for public debates. This phase of the drafting process is the most crucial because this is where the draft of the new constitution will emerge.

And when the draft constitution is done, there should also be an appropriate amount of time to allow the public to reflect on it before the campaign period begins. The people’s mind must be clear when they decide to enact or to reject the new constitution in the plebiscite.

We must bear in mind that constitutional revision or charter change, or whatever it may be called, is fundamentally a nation-rebuilding effort. Therefore, the legitimacy of the new constitution should be beyond reproach this time around. The integrity of the drafting process must be palpable and unquestionable.

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.