On Constitutionalism and the Bangsamoro Basic Law

The Bangsamoro Basic Law was actually expected to be enacted by Congress before the final State of the Nation Address of President Noynoy Aquino. But given the fact that some provisions of this bill have already invited scrutiny from Constitutional Law experts such as Fr. Joaquin Bernas, S.J. and Sen. Miriam Defensor-Santiago, there is serious doubt that it will be even passed before this President's term ends next year.

Note that even the Philippine Constitution Association has described this proposed legislation as "littered with constitutional infirmities." The government certainly faces a huge challenge to "accommodate and entrench" any contested provisions of the BBL within constitutional parameters.

Amending or revising the Constitution is an immensely unsettling undertaking. The country has stubbornly avoided this path for the 1987 Constitution despite the various Cha-Cha movements that sprouted along the way. Indeed, this quality of immovability makes the words "accommodate" and "entrench" associated with the amendment process seem misplaced. An underlying utilitarian motivation behind the BBL is hard to ignore for any amendment proposals arising from it is palpably a mere step to overcome potential Constitutional objections.

Such a limited approach to the amendment process is objectionable because it overlooks the significance for a nation-state to have a written constitution. I would like to believe that the Constitution means so much more than a piece of legal document that can be trifled with.

It is generally known that a constitution establishes the institutional allocation of government power. More profoundly though, a nation's constitution embodies its peoples' enduring values and principles. In the 1987 Constitution for example, two legacies of the Filipinos' victory over 20 years of dictatorship are firmly entrenched, i.e. direct democratic participation and respect for human rights. Indeed, this monumental document signifies the Filipino nation's character, our people's soul. Clearly, its provisions cannot be altered simply to "accommodate" transitory contingencies.

Nevertheless, whether a thorough reform of the 1987 Constitution should be undertaken is still a legitimate question to ponder on. Its Preamble states that Filipinos desire "to establish a Government that shall embody our ideals and aspirations." A corollary of this goal is the intent "to prohibit political dynasties" (Section 26 of Article II).

Clearly, the changes required cannot be attained via simple amendments. Therefore, the utilitarian treatment of the amendment process attached to the BBL discourse can hardly be justified given that a complete overhaul of the Constitution is warranted.

I suggest a pre-Constitutional Convention phase be added to the whole revision process. The Philippine Association of Law Schools could be officially tasked to produce a working draft of the revised Constitution. Members of this organization could conduct grassroots consultations at the provincial level. Summarized provincial findings shall then be pooled at the national level and out of this the PALS could produce a working draft. The latter shall then be used as a starting point for the eventual Constitutional Convention. This additional preliminary stage not only significantly expands public participation but also professionalizes the writing process. The next phase could be any of the procedures prescribed in the Constitution.