Drafting a Constitution
Consultative Committee to Study the 1987 Constitution—that is how we are officially called by Executive Order No. 10 that brought the group about. Most are lawyers. The gurus of the Committee are former Chief Justice Reynato Puno, its chair, former Senate President Aquilino Pimentel, Jr, who is tatay to all of us, Justice Antonio Nachura, and Justice Bienvenido Reyes. We are an interesting mix of academics, lawyers, business persons, representatives of the military establishment and point-persons of Muslim Mindanao and of the Cordilleras. There is only one woman in the committee, lawyer Susan Ordinario, who has pointed out that only her husband is “Ordinario.” But she more than amply supplies for ten women. Ably assisting us and catering to all our needs are the friendly and solicitous people from the Presidential Management Staff. A representative of the Executive Secretary sits as permanent observer.
Different parts of the Constitution and varied concerns have been assigned to “sub-committees,” each with a chairman and a vice-chairman, but most of the time, the entire committee sits as a “committee of the whole” when debating sub-committee topics. Every part of the 1987 Constitution has been open to study and to review. There are no limits to what we may review. What is clear is that we set out to draft provisions for a federal republic, to delineate between the powers of the republic and those of the regions. (We have decided, at least for now, that they shall be called “regions,” not states.) An overriding concern is likewise reducing marginalization of sectors and broadening the base of national discourse that leads to legislation and to administrative action. Obviously, we are of the belief that establishing a federal republic promises a more enduring solution to the vexatious problems brought about by the rightful aspirations of some Filipino communities for self-determination.
We have agreed that the tripartite system that the Americans bequeathed to us will remain: a government that distributes its legislative, executive and judicial powers to three branches. Separation of powers in this way is the formula for inefficiency and the fertile breeding ground for withering impasses, but it has always been the hope of interdicting aristocracies and neutralizing aspiring autocrats and dictators that has kept this form of inefficient government a still popular configuration. We have agreed that the members of the Senate shall be representatives of the federated regions, while the House of Representatives will be the congregation of the elected representatives of the Congressional districts. Hearkening to the demand that dynasties be dismantled, the Committee has formulated and voted upon a self-executing provision against dynasties: forbidding persons related either by consanguinity or affinity to the second degree either from holding office—or aspiring for office—simultaneously, or succeeding each other. The basic provisions on the family have already been proposed, and a re-formulation of the Bill of Rights that will distinguish between “first-generation” (civil, political and human) rights, “second-generation” (social and economic) rights and ecological and environmental rights.
The sub-committee drafting proposals on the economic provisions is far-advanced in its endeavors and a draft on the national territory is already on the table.
Obviously, the process of drafting includes presenting the results of research, choosing between available models, crafting one when none that exists is found suitable, discussions and exchanges (that can sometimes be heated and even overheated!), formulating the draft text, challenging the formulation and reformulating the constitutional proposition is the only way to go, and research has included listening to resource persons. On one day alone, we listened to no less than 12 resource persons. And it is the provisions on sub-national governments that are presently exacting the greatest toll on all of us in terms of work hours, research hours and debate hours, after all it is the first time we have them!
There is still much that needs to be done—and we do not have the protracted period that was given the Constitutional Commission of 1986. And we all labor under the realization that whatever it is that we do may not be for very much if the members of Congress choose to be cavalier in their dismissal of our proposals. But the President of the Republic constituted us to draft a constitution for him to submit to Congress as his proposal, and it is a tribute to him that he chose persons, some of who are not exactly his bedmates nor remotely his allies!
But it certainly will not speak well of Congress to be dismissive about the proposals of the Committee, after all, one of the reasonable misgivings about revising the Constitution through a “constituent assembly” is that Congress lacked the time—considering its already ponderous legislative agenda—to craft a new Constitution.
None of us has the illusion that we are drafting a perfect constitution. Such a thing does not exist. What we are writing is as best a proposal as we can muster for a people still in the process of honing its collective skills at statecraft and not yet completely habituated to the processes of reflexivity by which alone a nation’s legal system that legitimizes its political structures and dynamic can truly mature.