Constitutional Design: Principles, Processes and Imperatives (SESSION 1 HIGHLIGHTS)
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A forum entitled “Constitutional Design: Principles, Processes and Imperatives” was held at the House of Representatives on 16 May 2018. The event was jointly organized by the Congressional Policy and Budget Research Department (CPBRD), Institute for Autonomy and Governance (IAG), and International Institute for Democracy and Electoral Assistance (IDEA). It was the first of six in a series that aims to introduce basic considerations in constitutional change and design. The event highlighted key ideas that involved general principles in constitution-making, some country experiences, and the Philippine context, delivered by preeminent speakers from the academe and an international inter-governmental organization. Here are the highlights.
Dr. Romulo Emmanuel Miral, Jr. of CPBRD, in his opening remarks, emphasized the close link between structural arrangements and the most important issues among Filipinos (e.g., poverty, jobs, criminality, corruption), putting the limelight on the Constitution as an important element of institutional reform. Meanwhile, Atty. Benedicto Bacani of IAG gave an overview of the lecture series, and explained the significance of drawing lessons from international experiences and of emphasizing the substance, processes, and principles of constitutional design.
Ms. Amanda Cats-Baril of International IDEA lectured on “Fundamentals and Comparative International Experiences in Constitutional Design”. She explained that there is no universal definition of a constitution. Her lecture stressed that constitutions are at the intersection of multiple spheres of society and require an understanding not only of the legal sphere but also of the political and social spheres. Constitutions serve different functions and it is for each country to identify whether to use it as an instrument that fosters coordination, democratization, or conflict-resolution, among other ends.
A key issue in constitutional design is on how to make the process participatory. Bargaining among different groups is a way of accommodating various interests and getting everyone on-board. Determining the body that will draft the Constitution is another relevant issue. Some take a parliament-led approach while others are executive-dominated, and there are pros and cons for each type. In the case of a parliament-led approach, a plenary setup can be less flexible in terms of rules. However, this can be complemented through sub-committee arrangements where discussions can be freer and less restrictive. When a legislature takes a dual role of both lawmaker and drafter of the Constitution, there are important considerations such as developing the process, allocating resources, and managing time for both legislative and constitution-drafting affairs. Meanwhile, an executive-led process of changing the Constitution leads to a system with a dominant President or Prime Minister.
Ms. Cats-Baril ended with an important note to identify the purpose of coming up with a new constitution or amending the existing one. Many countries draft constitutions based on their contexts and on their most pressing needs, as was the case of Nepal when it saw a new constitution as a tool to foster peace following a bloody civil war. The lecture also stressed the need to make the process transparent and participative. Any change to the Constitution has to be acceptable to the people.
In his presentation, Prof. Sedfrey Candelaria of the Ateneo Law School cited economic growth and development as the “poster child” of the move to change the Constitution. He noted learnings from the post-1986 experience and the issues of the day, such as globalization. Prof. Candelaria raised a caveat that the fruits of any initiative to change the Constitution are not immediate. He, likewise, made a distinction between the Bangsamoro and Cordillera initiatives for autonomy, and related these to the federalist undertaking.
Atty. Michael Mastura of the 1971 Constitutional Convention and Prof. Ponciano Bennagen of the 1986 Constitutional Commission talked about the role of the Constitution and the importance of the process and substance in amending the Philippine Constitution. Atty. Mastura focused on the Mindanao problem and the proposal to create a Bangsamoro substate. He explained that the 1987 Constitution inadequately addresses the clamor of the people in Mindanao. Moves to change the Constitution would have to consider history, shared-rule, and regional self-rule. Atty. Mastura expressed his hope to address the issues through a federal setup. Meanwhile, Prof. Bennagen elaborated the issues they faced when drafting the 1987 Constitution. He highlighted the objective of the 1986 Commission to make the process participatory, which stemmed from the general sentiment in favor of democratization following the 1986 revolution. Prof. Bennagen expressed his position that moves to change the Constitution should address the need to improve checks and balances across the branches of government, correct dysfunctional institutions, and respond to the challenges of globalization, climate change, terrorism, and transnational crimes.
Ms. Cats-Baril presented the final lecture on the role of constitutions in conflict management. She explained that constitutions formalize mechanisms to resolve conflict through peaceful means. This is true in ethnically, linguistically, religiously, and culturally-divided societies. Defining territories, providing for asymmetric decentralization, recognizing different groups, and devising innovative electoral systems are ways in which constitutions can manage conflict. Nepal was given as an example where warring groups agreed to a peace deal and to draft a new constitution that would address different demands. Some of the important learnings from Nepal’s experience are: (1) the value of inclusion; (2) the recognition that backtracking can happen; and (3) the understanding that constitution-drafting is an evolving process. Civic education is valuable in getting the people involved, starting with a good understanding of the process and its intended outcomes.
Key ideas raised throughout the forum include delineating roles between national and subnational governments, a commitment to shared and self-rule, and the necessity of making the process inclusive. Future directions were also discussed, in which communication was emphasized as an important tool in getting people on-board and ensuring a democratic process.