Constitutional convulsions and the rationality of a constitutional convention

Friday January 19, 2018 ()

Former Chief Justice Hilario Davide has nothing but praises for the 1987 Constitution, a document prepared by a 50-member commission, all appointed by then President Corazon Aquino.

Yet, one has to ask if one can call as almost perfect a document that appears to have escaped serious editing, proofreading, and technical consistency review, that it did not define clearly whether a bicameral Congress should vote jointly or separately when it convenes as a constituent assembly or Con-Ass.

But it is also not the fault of the Constitution if the attempt to revise it through the Con-Ass route is practically dead in the water, at least for now. It is also the fault of the bravado of some members of the House of Representatives, including its leadership, to preempt any amicable relationship with the senators when it declared its intention to abolish the Senate in the proposed Constitution. It also did not help that some of them insisted on a joint voting, and not a separate one.

rationality of a constitutional convention

It is simple rational thinking. How can one entice the Senate to join the effort when the intended outcome is its abolition? The psychological impact of that to a body whose members are used to lording it over like small independent republics on the strength of the logic that they have larger constituencies, with some members even having more votes than the President himself, would have been severe. How can one senator even accept the premise that his vote would be of equal weight to one elected by a small legislative district in some rural area in a remote province?

But on hindsight, maybe it is divine intervention that the Constitutional Commission chaired by former Associate Justice Cecilia Muñoz-Palma failed to clarify the manner of voting in a Con-Ass. At least, it has provided a speed bump on this route of changing the Constitution. A close perusal of the proposals coming from the House reveals that these are patently self-serving that one can just heave a sigh of relief for being spared a railroaded proceeding.

They speak of lifting term limits. There is even a proposal to exempt top public officials, including the President, Vice President, and members of Congress, the judiciary and the constitutional commissions from paying taxes. It is here that you can at least thank the senators for their otherwise also self-serving acts of self-preservation for providing the inertia that stopped the Cha-cha train.

I shudder at the thought of the proposals that could emanate from a self-serving Congress that would have mangled the principle behind a Constitution. It would have been easy for them to frame it no longer as a document that limits the power of the state, and turn it into a fundamental law that expanded the state’s privileges.

There is no doubt that the 1987 Constitution requires major revision. But it should not be left in the hands of the current Congress through a Con-Ass. The current squabble between the Senate and the House of Representatives is a warning sign that while a Con-Ass is less costly in monetary terms, it can have steeper political costs that could have long-lasting damaging effects on our body politic.

The more rational route is through a constitutional convention or Con-Con with elected and appointed members. This will ensure that political partisanship will be minimized, and will open the process not only to those who can win in an election, but also to include academics and constitutional scholars. Additional conditions can be imposed on members which could include that they should not be partisan, have never been members of any political party or have not been elected to public office for the past several election cycles, and would be barred from running for any elective posts or be appointed to any government position for the next several election cycles. It should even be included that members should not be related by consanguinity or affinity to any sitting member of Congress, or any other elected official, whether local of national.

These conditions may appear to be tall orders, but are worth advocating if only to ensure that the process of revising the Constitution will indeed be insulated from self-serving and politically partisan interests.

Those who oppose a Con-Con argue against its cost, which is estimated to be at around P11 billion. While the amount may appear staggering, it is not at all steep considering that we are talking about the fundamental law of the land. If we can spend billions of pesos in building infrastructures to facilitate development, it is a cheap argument to even argue that P11 billion is not worth spending for building the basic infrastructure of our political system, from where all our laws would emanate.

The apparent deadlock between the House and the Senate on the issue of Con-Ass is therefore a blessing in disguise. It enabled us to see what it can turn into, where self-serving proposals, protection of turfs, and jurisdictional conflicts can undermine not only the process of revising, but also the content of, the Constitution.

It also now provides us more time to offer the merits of a Con-Con, even as more time is also given for people to really understand the process of revising the Constitution. If there should be efforts where energies should be focused, it should be in educating the citizenry on the Constitution, its relevance, its parts, and the basic issues that surround the key decisions we have to make. These include whether we are going federal, or remain unitary; whether we should shift to a parliamentary system; and whether we should have a unicameral or bicameral legislature.

It is only through public discussions that citizens can become more informed so that we can better participate in the crafting of the Constitution. These include the selection of the delegates, voicing our opinions during the proceedings, and eventually casting our vote during the plebiscite that will put our stamp of approval on the fundamental law of the land.


  • Constitutional convulsions and the rationality of a constitutional convention, Antonio P. Contreras, January 20, 2018, The Manila Times

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