Don’t forget the plebiscite

It is not entirely correct to say that the 1987 Constitution is not the problem. And that amending it is not an answer to our political and economic woes. The many Charter Change or Cha-Cha debates we have seen on television these past couple of years have shown that in many instances, our constitution is indeed the problem and amending it is the only solution.

Pertinently, we have also learned from these televised discussions that there are actually only two plausible modes of amending or revising our constitution, namely via Constituent Assembly (Con-Ass) or Constitutional Convention (Con-Con). (See Article XVII, Section 1)

The choice between the two modes will ultimately depend on the contemplated reform. If the plan merely covers a specific provision or a small set of prescriptions, then a Con-Ass would be appropriate. But if the intent is to overhaul the constitution, or even replace it altogether, then a Con-Con would be absolutely essential. 

It is important to point out however, that whether the reform is pursued through Con-Ass or Con-Con, we must not forget that these bodies are only offering proposals. Their work is essentially to present recommendations for voters to consider. Their proposals only become binding after we signify our approval or more specifically, when they are “ratified by a majority of the votes cast in a plebiscite.” (See Article XVII, Section 4)

Republic Act No. 6735 or The Initiative and Referendum Act defines plebiscite as “the electoral process by which an initiative on the Constitution is approved or rejected by the people.” (See Section 3 (e)) Thus, in a practical sense, it is an election. A recent plebiscite that we can refer to was held in 2019, when voters in the Bangsamoro region ratified the Bangsamoro Organic Law. 

As per the Constitution, the plebiscite “shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.” And because it is to be treated like an election, the schedule and budget for the plebiscite must also be given due consideration in choosing between Con-Ass and Con-Con. 

Of course, emphasizing the requirement of a plebiscite is also a stern reminder for us to be actively engaged in every phase of the constitutional reform process. The discussions and deliberations cannot be monopolized by our political elites and be confined within the halls of congress. We have to be thoroughly involved from the very beginning because we will be making the final decision at the end of it all.

In this regard, it is vital that the constitutional reform process must not be overwhelmed by textbook debates between unitary-vs-federal or presidential-vs-parliamentary. It should not be dictated by arguments of “what is good for the country” which are solely based on academic literature. These matters play a part in the whole exercise, but they should not be the main feature as we often see in congressional hearings these days.

The decision to amend or change the 1987 Constitution must be anchored on the confluence of two briefs. First, a determination of defective provisions, which must necessarily also include a discussion on their adverse impact on politics and governance in the country. Second, a coherent explanation of the proposed amendment or change and how they can lead to an improvement from the untenable status quo.     

So apart from engaging in meaningful public deliberations, amending or revising the constitution requires deep and far-reaching discernment from all of us. This means we have to study the text of the 1987 Constitution and reflect on how it has been applied in the past 36 years. This is not an easy task, but we have to do it otherwise the constitutional reform process can be hijacked by predatory politicians pretending to be reformers.

Every Filipino is encouraged to immerse in constitutional study on their own time. But obviously, not all of us can devote the necessary hours to learn the ins and outs of our charter. Thus, a nationwide review of our constitutional history and the most basic principles of the 1987 Constitution must be undertaken. Given limitations in time and resources, the review can focus on these five fundamental constitutional institutions? separation of powers, judicial independence, rule of law, human rights and local autonomy. 

This review component can be undertaken this year. The Department of Interior and Local Government (DILG) can convene the two official meetings for 2023 of the Barangay Assembly for this purpose. Note that by law, the Barangay Assembly serves as the venue and mechanism where the people’s views and sentiments can be “expressed, crystallized and considered”. 

But the DILG cannot do this alone. They must secure the help of the Philippine Association of Law Schools and the Philippine Constitution Association in drafting the syllabus for the review sessions. They must also conscript universities and law schools to provide lecturers and moderators for each Barangay Assembly.
 
This national undertaking is very crucial for two reasons. First, by undergoing this review exercise Filipinos will be empowered to participate actively in all public deliberations. A good understanding of the 1987 Constitution will encourage people to raise questions and share insights. 

Second, the learning experience can help protect voters from disinformation campaigns which will likely be employed by the usual spoilers and expected to intensify during the run-up to the plebiscite. Filipinos will be less vulnerable to such machinations if they have a deeper comprehension of the charter.

And even if constitutional reform does not eventuate, the participants of these review sessions will receive profound benefits that can only help them become better citizens. For instance, they will get a better grasp of how our government works, or why it does not function well in some cases. But no doubt, they will develop a profound appreciation of the 1987 Constitution, particularly as to how it can still offer a path to improving how we govern ourselves.  

Michael Henry Yusingco, LL.M is a law lecturer, policy analyst and constitutionalist.