INITIATIVE, SOVEREIGNTY, REVISION

If I understand the thrust of the dissents in the Sigaw case, their focus is on the meaning of revision and on the implications of popular sovereignty.
Let me begin with popular sovereignty. The argument of the dissenters focuses on the Declaration of Principles which says that the Philippines is a democratic and republican state and that sovereignty resides in the people and all government authority emanates from them. From this the argument is drawn that whatever the people want is supreme and that therefore, since initiative is coming from the people, that settles everything.
We must first ask why the Constitutional Commission added the adjective “democratic” to “republican.” Did the Commission wish to convert the Philippine state into a form modeled after the ancient Greek states where matters of highest concern were decided directly by the people? That seems to be the thrust of the argument of the dissenters.
I am afraid that this is at the very least misleading. It is good to remember that describing the Philippines as a “democratic” state is not a rejection of the “republican” character of the state. A republican state is one that is governed by representatives chosen by the people. The people in a republican state normally express their sovereignty through the officials whom they have empowered through election. That the 1987 Costitution calls the Philippines also a “democratic” state is a recognition of the role of the people in the People Power event of 1986. It was, it must be emphasized, a revolutionary event. But the revolutionary character of that event has not been incorporated into the ordinary life of the nation. The Philippines is not a revolutionary state. It is democratic but republican.
“Initiative and referendum” is not an adoption of revolutionary rule as part of the normal life of the nation. We are far from being in a permanent state of revolution. To say that we are would be an invitation to a perpetual state of instability. For this reason, “initiative and referendum” is a vehicle for the expression of popular sovereignty but cribbed and cabined within the constraints set by Article XVII which expresses the abiding will of the people who ratified the 1987 Constitution. Until those constraints are removed by the people themselves through constitutional change, the people must respect the constraints they have imposed upon themselves – unless what they want is to exercise their right of revolution in defiance of the Constitution. But, clearly, the sponsors of initiative are not claiming defiance of the Constitution.
It is also against this background that we must understand the kind of change that is allowed by Section 2 of Article XVII. We can debate about the distinction between amendment and referendum or expend our energy in denying the existence of a distinction until we get blue in the face. But an important question that must be asked is why Section 2 on initiative and referendum has been separated from Section 1.
In Section 1 the agents authorized to propose changes in the Constitution are Congress and a Constitutional Convention. These are deliberative bodies capable in an organized manner of crafting and perfecting what should be proposed for ratification by the people. The deliberative character of Congress and Constitutional Convention gives the initial assurance that what will be presented to the people is already the fruit of the give and take of debates. In other words, “democratic and republican” but not “harebrained.” Congress and Constitutional Convention have been given by the people the authority to perform this preliminary task.
Section 2, on the other hand, was the fruit of a compromise. For reasons of practicality, there was strong objection to empowering the people directly to propose constitutional change not because they are unintelligent but because they are not organized to deliberate. In the end what was decided was to allow the people directly to propose isolated changes whose formulation would not require debate on their meaning and on the possible effects they can have on other provisions. The word used to describe this kind of change was “amendment.” Anything more complicated than that would be considered “revision.”
To my mind, the main thrust of the Supreme Court decision in Lambino v. Comelec is that what was being proposed was not a simple amendment allowed by Section 2 but a revision which should be crafted and perfected by a deliberative body in order to avoid textual conflicts and confusion.
There was no need for the Court to remand this issue to the Comelec because the Court had before it everything needed to decide the nature of what was being proposed. For this reason, what Justice Carpio said about “gigantic fraud” or “grand deception,” even if true, was not needed to kill the petition. The majority did not make its decision on the basis of unproved facts, as the petitioners might say, but on the fact of the document submitted to the Court by the petitioners themselves. The Court, in the exercise of its authority to determine what the Constitution means, decided that the changes being proposed did not satisfy the meaning of “amendment” as found in Section 2. The Court did not usurp the power of the Comelec. It saved the Comelec from unnecessary work.
In the end, the noble thing to do for those who desire a parliamentary form of government is to sponsor its adoption either in Congress as a constituent assembly or in a Constitutional Convention.

THE SIGAW CASE 4

I believe that what agitated the advocates of initiative about the ponencia of Justice Carpio was not so much that he used words like “gigantic fraud” and “grand deception” as much as the fact that his essay exposed the process and the text for what they were. Even if Carpio had not used colorful language, his exposition by itself was enough to agitate the advocates. And it was even worse for the Palace advisers who were exposed as having led the President once more into a pit – as they did in the case of Proclamation 1017, E.O. 464 and “calibrated preemptive response.” With friends like that, the President does not need enemies.
At any rate, if it is of any consolation to those hurting, only one other vote supported Carpio in his harsh judgment on the process. But 8 clearly said that the proposal was a prohibited revision and 8 clearly voted to dismiss. In fact, not all 7 dissenters asked for a remand to the Comelec.
Last week I wrote about the core of the proposed unicameral parliamentary system and how it was so incomplete as to need another provision calling for Parliament to revise it within forty-five days after ratification. Let me now shift to the rest of the Proposed Transitory Provisions.
Should the Sigaw proposal eventually receive the approval of the Court on reconsideration and later of the people in a plebiscite, it will not mean a shift to a complete parliamentary system right away. There are certain preliminary steps that will still take place. We are not sure how long these preliminary steps will last.
First, after the amendments are ratified, the incumbent President will not step down from the presidency. She will remain in office as President until June 30, 2010, unless sooner impeached. But the draft does not say how the impeachment process will go since nothing is said about the impeachment process in the draft.
Second, there will be an interim Parliament consisting of the present Members of the Senate and the House of Representatives. The interim Parliament will continue until the Members of the regular Parliament are elected. However, there is no indication of when the electing will take place. Conceivably, therefore, the interim Parliament can last beyond June 30, 2010. It reminds us of the Transitory Provisions of the 1973 Constitution which made the existence of the Assembly dependent on the will of President Marcos.
Strangely, moreover, (Or is it strange?) the Transitory Provisions also say that the former Senators will have to step down and leave the interim Parliament June 30, 2010. This means that after June 30, 2010 the Members of the interim Parliament will only be the former Members of the House.
Third, as already mentioned, within forty-five days from ratification of proposed changes, the interim Parliament will convene to propose amendments to or revision of the newly ratified Constitution. There is no indication of when the work of the second phase of the revision will be completed.
Fourth, the incumbent President will nominate an interim Prime Minister who, once elected by the interim Parliament, “shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President.”
 In other words, the interim Prime Minister will not really be Prime Minister.
Finally, the draft assures us that the proposed amendments have been earlier substantially endorsed and proposed by the House of Representatives Committee on Constitutional Amendments, and substantially recommended by the Abueva Commission. I am not sure how consoling this is. Nevertheless, the proposal of Sigaw now says that “a shift from the present bicameral-Presidential government to a unicameral Parliamentary system will effect a more efficient, more economical and more responsive government. The shift from a bicameral to a unicameral legislature will do away with the time-consuming duplication of legislative functions and strengthen responsibility and accountability in legislative work in government. The parliamentary system will ensure harmony between the legislative and executive branches of government, promote greater consensus and provide faster and more decisive governmental action.”
If you will look closely at what they are saying, the key argument is promotion of efficiency – getting things done with the least possible obstacle. The Executive will not be an obstacle to Parliament because the executive and the legislature are one. One House will not be an obstacle to the other because there will be only one Housel. The results will come out faster. What is important, however, is whether what will come out faster are what is needed by the nation.
I adhere to the proposition that the primary purpose of a Constitution in the democratic tradition is not so much to achieve efficiency as to avoid tyranny in its various varieties. The founders of the American Constitution provided for check and balances as a safeguard against monarchic tyranny.
I admit that our bicameral presidential system is not perfect. I too would welcome some changes. But let us do it the right way whether the vehicle for change we decide to use is initiative and referendum, Congress as a constituent assembly, or a constitutional convention – and remembering always that the purpose of a Constitution is not primarily to promote efficiency but especially to prevent tyranny in its various forms. Administrative Law can supply efficiency!
6 November 2006

THE SIGAW CASE 3

THE SIGAW CASE PART 3
Joaquin G. Bernas, S.J.
If you listen to the advocates of change, what you will hear are predictions of doom if we fail to pass the constitutional changes they are advocating. We hear phrases like, “This is our last chance,” “We will never make progress if we fail to achieve change,” “We will be the next Bangladesh if we stay with the present system.” I believe that the best way of dealing with this type of rhetoric is to look at the concrete changes they are proposing and to see what in it will lead us to the Promised Land.
Let us take a look at the draft which Sigaw attached to its Supreme Court petition. Never mind that it is not clear whether the version they submitted to the Comelec and the version they submitted to the Supreme Court are the same as the one to which they asked the people to affix their signatures. We will assume that this is the draft to which the people affixed their signatures. This is the draft which they claim will save the nation from perdition.
I have been teaching Constitutional Law for about thirty-five years now and I think my readers will credit me at least with possessing some facility in reading constitutional law literature. When I try to figure out what Sigaw ng Bayan’s draft for a new Constitution is saying, I must confess that I have difficulty in navigating through it. If I am having problem figuring it out, how much more problematic it will be for the ordinary Filipino who does not eat Constitutional Law for breakfast, lunch and dinner like I do.
The draft is very sloppily done. We need not even talk of intentional deception even if in fact the text is deceiving. I suspect that the authors of the proposal were aware that initiative and referendum as a mode of changing the Constitution is allowed to handle only amendments and not revision. I also suspect that they could also sense that what they were proposing was not a mere amendment but a revision. Hence, they had to look for a way of packaging their proposal in a manner that they hoped could disguise the revision being proposed as a mere amendment. They did this by attempting to give the impression that all they wanted was to change Article VI on the Legislature and article VII, the article on the Executive Department. No other Article is mentioned except Transitory Provisions.
What they came out with, in fact, is not a complete document, Rather they drafted mainly instructions for revising the present Constitution towards a unicameral parliamentary system with the aid of a pair of scissors. Thus, for the Legislature they simply drafted a set of instructions which in Section 2 equivalently says: “Ladies and gentlemen, take out your scissors and open to Article VI. Cut out Sections 18 and 24, retain everything else, but wherever the words ‘Senate,’ or ‘House of Representatives’ or ‘House of Congress’ appear, replace them with ‘Parliament.’ Next, if you find any reference to ‘Member of Congress’ or ‘Senator’ or ‘Member of the House of Representatives,’ replace it with ‘Member of Parliament.’ Retain everything else, but – and this is important -- if you find anything ‘inconsistent with the Parliamentary system of government . . . they will be amended to conform with a unicameral and parliamentary form of government.’”
As for the Executive Department, the instruction in Secton 3 goes this way: “Ladies and gentlemen, open you copy of the Constitution to Article VII, hold on to your scissors, cut out Sections 7, 8, 9, 10, 11, and 12, retain everything else, but wherever the words ‘President’ or ‘Acting President’ appear, replace them with ‘Prime Minister.’ But if you think that any of any of what remains is inconstant with a parliamentary system, it will be amended.”
But you might ask, “Who will identify the possible inconsistencies with a parliamentary system and who will do the amending?” The answer to this question is Section 4(2) of the proposed Transitory Provisions which says: “Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or of revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy.
”
In other words, what is being proposed is not yet the final document. So, what the heck have we been fighting about? Moreover, we know from Tolentino v. Comelec, a 1971 decision, that the Constitution does not allow proposal of an incomplete document. An incomplete document does not give you a context for evaluation.
With these two instructions you now have the core, an incomplete core, of a unicameral parliamentary system. Let us take a closer look at both the parliamentarism and unicameralism being proposed.
What is the essence of parliamentalism? The essence of a parliamentary system is the vesting of both the executive and the legislative powers in Parliament. The Parliament chooses the Prime Minister from among themselves. The Parliament chooses the Cabinet from among the Members. The Prime Minister and the Cabinet remain as long as they enjoy the confidence of Parliament.
In the standard parliamentary systems, the Prime Minister may be removed by Parliament through a no confidence vote. In the initiative proposal, there is mention of the election of a Prime Minister but there is no mention of a no-confidence vote. We do not therefore know how or if a Prime Minister may be removed once he is elected. Perhaps this too will be solved by the provision already quoted which requires Parliament to propose amendment and revision within forty five days.
(To be continued)
30 October 2006

The Sigaw CAse 2

THE SC ON SIGAW, PART II
Joaquin G. Bernas, S.J.
Everyone knows by now that the Supreme Court dismissed by a narrow vote of 8-7 the Sigaw petition to validate the drive for initiative and referendum. The narrow margin, however, does of tell all because the case dealt with more than just one issue.
Eight Justices voted to dismiss the petition. Varied reasons were used:, namely that Lambino and his group were not the proper parties to raise the issue, that R.A. 6735 is not a sufficient law for enabling initiative and referendum, that the petitioners did not show to the people the entire revision they were advocating, that the proposal is a revision not proper for initiative and referendum, that the proposal violates the one-subject rule required by R.A. 6735, that the Comelec did not abuse its discretion when it dismissed the Sigaw petition, that the 12% and 3% requirement were not proven to have been satisfied, and that with all these defects there is no point in remanding the case to the Comelec.
The Lambino group for their part also offered various arguments for their dissent, namely that the petitioners were the proper parties, that the issue is a political question which should be left to the people to decide, that R.A. 6735 is a valid law for enabling initiative and referendum, that what is being proposed is not a revision but a mere amendment, that the proposal does not violate the one subject rule found in R.A. 6735, that the Comelec abused its discretion in dismissing the Sigaw petition, that the Comelec should decide whether the 12% and 3% requirements have been satisfied, and that therefore the case should be remanded to the Comelec instead of being dismissed.
When all is said and done, however, the dispositive element is the majority vote to dismiss the petition. The eight in the majority did not all use the same arguments but they arrived at the conclusion that the case should be dismissed. You might also call it something similar to the “totality approach” which the Supreme Court used in reaching a majority decision that Joseph Estrada had vacated the presidency permanently.
However, all was not lost for the petitioners. Significantly, a majority of the justices held that R.A. 6735 was a sufficient enabling law for amendment of the Constitution through initiative and referendum. I myself have held in my earlier columns that the Supreme Court should have upheld the sufficiency of R.A. 6735 in the 1997 Santiago case. Now, if I read the decision correctly, the Supreme Court is saying, “Yes, Virginia, we already have an enabling law for initiative and referendum.” The Comelec, therefore, can proceed to formulate implementing rules and regulations. Once this is done, those who wish to propose amendments through initiative and referendum can more safely avoid the pitfalls into which Sigaw fell.
The fault of the petitioners was that they used the provision of the Constitution on initiative and referendum as well as R.A. 6735 not only incorrectly but also sloppily. I would even say in a deceptive manner. I will say more about this in another column.
There is an attempt to veil over this deception through the argument that the six million or so signatures constitute the voice f the people who are the ultimate sovereign. The implication is that even if the signatures are constitutionally trash they should be honored as the expression of the sovereign will.
The dissenting justices are careful to avoid saying that the people, right or wrong, should be followed. But running through most of the dissents is the emphasis on the need to respect the sovereign will. Properly understood, the argument is impeccable. It is good to remember, however, that a limit on popular sovereignty is found in Article XVII which is aptly called the Constitution of Sovereignty. What Article XVII means is that it is the sovereign will of the people, manifested through the overwhelming ratification of the Constitution in 1987, that any change in the Constitution should be done within the framework of the Article XVII process.
What this also means is that Article XVII contains a statement of legal sovereignty. It has reference to the electorate or to that segment of the political community which can establish or alter the fundamental law. By ratifying this provision in 1987, the people consented to limit their otherwise plenary sovereignty. This is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a state-force due to which it has the exclusive capacity of legal self-determination and self-restriction." A sovereign then, if it chooses to, may restrain the exercise of what otherwise is unlimited competence. This is what Article XVII does and it is the duty of the Supreme Court to ensure that the will of the people expressed in Article XVII is respected.
Of course, the sovereign people might choose to break out of this auto-limitation. This is what happens in a revolutionary situation when the people choose to defy the constitutional restraints they imposed upon themselves through a Constitution. This is not the situation today. The petitioners are not saying that they want to defy the Constitution. To the contrary, they are claiming that they are merely implementing the Constitution. And since they clearly wish to follow the Constitution, it is the duty of the Court to tell them what following the Constitution means. This the majority in the Court has done in the Sigaw case.
27 October 2006

THE BATTLE OVER BILLBOARDS, Part 11

In my column last week I wrote about billboards as property and about the role of police power in regulating them. I said then that the basis of regulation by police power can be the demands of public health, public safety, and even the need to keep surroundings beautiful. The current campaign against billboards has been mainly on the basis of the need to protect the safety of human life and property.
The scope of the regulatory power can also depend on whether billboards are on site, that is, set to advertise goods and services which may be found in the place where the billboards stand, or off site, that is, billboards erected in public places or away from the goods or services being advertised. The regulatory power over on site bill boards can be necessarily narrower because of the freedom of persons to treat their premises as they please. But whether on site or off site, billboards can be regulated for the purpose of safeguarding public safety or avoiding visual clutter or urban blight. To the best of my knowledge, however, the aesthetics, standing by itself, has so far not been used as basis for regulation.
Another aspect of billboards which needs to be considered is their relation to freedom of expression. Billboards speak. They even shoust. They are used to advertise not only goods and services but also political and religious ideas.
The expression of political and religious ideas occupy a preferred rank in the hierarchy of constitutional rights. But even ideas may be subject to “time, place, and manner” regulation. Our law has done this with campaign speeches during the election period. Political speech during the election campaign period is considered subject to stricter regulation for the purpose of maintaining a free and orderly election and equality among candidates. For this purpose jurisprudence recognizes special regulatory powers of the Commission on Election during the election period.
In general, however, the content of billboards, when they deal with political or religious matters can be interfered with only under the strict “clear and present danger rule.” In this connection, I have been wondering whatever happened to the huge signs on the walls of the San Carlos Seminary campus along EDSA advertising vocation to the priesthood. Were they blown away by “Milenyo” or by the Department of Public Works? If so, on what basis?
When it comes to “commercial speech,” however, it is a different matter. Commercial speech simply means communication whose sole purpose is to propose a commercial transaction. For many years jurisprudence did not consider commercial speech protected by the Constitution. The reasoning was that the broad powers of the state to regulate business included an equally broad power to regulate commercial speech.
The case that turned the tide involved the advertising of prescription drugs. The Court affirmed that commercial advertising enjoyed constitutional protection. The Court’s reasoning went this way: “Generalizing, society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely ‘commercial,’ may be of general public interest. The facts of decided cases furnish illustrations: . . a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, . . . a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs, . . .”
Even with this decision, however, commercial speech has not been accorded the same level of protection as that given to what is called “core” speech, that is, political and religious speech. Thus the need for standards of regulation for commercial speech.
The standards came in 1980 with Central Hudson Gas v. Public Service Commission which set down the requirements for the protection of commercial speech. The Court ruled that regulation of commercial speech does not violate the constitutional guarantee on freedom of expression if the regulation satisfies four conditions. First, the advertisement being regulated must be found to be false or misleading or proposes an illegal activity. Second, the regulation must be intended to protect a substantial governmental interest. Certainly, for instance, traffioc safety, is a substantial interest. Third, the regulation must directly advance the governmental interest. And fourth, the regulation must not be more than necessary to serve the government interest.
Needless to say, the advertising industry is a multi-million dollar business. Similarly, the “vice” businesses such as alcohol and tobacco are likewise multi-million dollar operations. Attempts to apply the Central Hudson standards to the regulation of the tobacco and alcohol industry have generated intense legal controversy in the United States. Expect the same to happen in our litigious society. Also expect the advertising industry to strike back at any indiscriminate dismantling of billboards.
P.S. On a completely different matter, will the Solicitor General file a motion for reconsideration of the unanimous decision of the Supreme Court on the immunity of the PCGG. If he does, do not expect his purpose to be the discovery of the correct law.

jTHE BATTLE OVER BILL BOARDS Part I

If you were Mussolini, you could solve the problem posed by billboards in one fell swoop. Just ban all billboards. And if you are one whose car was crushed by a flying billboard or whose son was pinned to death or seriously maimed, you might cheer Mussolini. But since very likely you are not Mussolini, you will have to deal with some obstacles facing billboard regulation.
Billboards are property and definitely property is subject to regulation. Billboards are also a form of speech. So you will have to deal with the distinctions and subdistinctions related to the regulation of speech. Billboards might contain political speech urging support for initiative and referendum or a senatorial candidate. They might also contain religious speech. Political speech and religious speech enjoy the highest form of constitutional protection. But even mere commercial speech enjoys a degree of constitutional protection. Regulations will have to be tailored in a manner that does not impinge any protected right.
None of these factors, however, present insurmountable obstacles to rational regulation of billboards. First of all, the current campaign against billboards is not so much against what they say as against where they are and how they are built. If place and quality of construction are the only factors, regulation can easily be justified. The state is sufficiently armed with police power which enables it to protect the health and safety of the public. Protection of life and limb is a perfectly valid basis for regulation or even prohibition.
Can aesthetics, however, be the basis for regulation or prohibition? The question has an interesting history. We do have a 1918 Supreme Court decision which upheld the validity of a statutory provision authorizing the Collector of Internal Revenue to remove any sign, signboard or billboard found by him to be offensive to the sight or otherwise a nuisance! The Court argued: “Without entering into the realm of psychology, we think it quite demonstrable that sight is as valuable to a human being as any of his other senses, and that the proper ministration to this sense conduces as much to his contentment as the care bestowed upon the senses of hearing and smell, and probably as much as both together.” To the objection that aesthetic tastes are a tricky lot the Court answered that “the prevailing morality or strong and preponderating opinion demands such legislation.” But, as can be seen, aesthetics had to be linked with the health of the eye. Can aesthetics stand alone as basis for regulation?
Time was when aesthetics was rejected as a basis for the use of police power. A new Jersey Court put it this way: “Aesthetic considerations are a mater of luxury and indulgence rather than of necessity, and it is necessity alone which justifies the exercise of police power.” And a California Court said: “We find that the one ground upon which the town council may be thought to have acted is that appearance of billboards is, or may be, offensive to the sight of persons of refined taste. . . . It has never been held that these considerations alone justify, as an exercise of police power, a radical restriction of an owner of property to use his property in an ordinary and beneficial way.”
Gradually, however, “persons of refined taste” slowly gained ground by pairing considerations of aesthetics with health, safety and morals, as our Court did in 1918. Thus Justice Pound was quoted as saying: “Beauty may not be queen, but she is not an outcast beyond the pale of protection or respect. She may at least shelter herself under the wing of safety, morality or decency.”
Progress was further made in 1935 through a law which disallowed billboards that blocked the view of areas of scenic beauty. A Massachusetts court said: “We think that the preservation of scenic beauty and places of historical interest would be of sufficient support [for advertising regulation]. Considerations of taste and fitness may be a proper basis for action in granting and denying permits for locations for advertising devices.”
(Alas, however, an ordinance passed by the town council of my own hometown prohibiting structures that would block the view of our town plaza was struck down by our Supreme Court! It wasn’t much of a plaza anyway! But at least my town made it to the Philippine Reports.!)
Finally, aesthetics came to its own in 1954 when the U.S. Supreme Court said: “The concept of public welfare is broad and inclusive. . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.”
State courts soon followed, among them a New York Court which ruled: “We accept beauty as a proper community objective, attainable through the use of police power. We are mindful of the reasoning of most courts that have upheld the validity of ordinances regulating outdoor advertising and of the need felt by them to some basis in economics, health, safety or even morality. We do not feel so constrained.” And a Massachusetts court said: “The issue clearly before us is whether the town bylaws, enacted primarily or solely for aesthetic reasons, are within the scope of the police power. We conclude that aesthetics alone may justify the exercise of police power; that within the broad concept of ‘general welfare,’ cities and towns may enact reasonable billboard regulation designed to preserve and improve their physical environment.”
(TO BE CONTINUED)

You Be the Judge

Let me start with snippets of the decision of the Supreme Court on the Mega Pacific automation contract. Some paragraphs of the main opinion written by Justice Panganiban set the tone:
“There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; 1 or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure.”
“Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items . . .”
“Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn ‘constitutional duty’ to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll body's ability and capacity to conduct automated elections. Truly, the pith and soul of democracy — credible, orderly, and peaceful elections — has been put in jeopardy by the illegal and gravely abusive acts of Comelec.”
“At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.”
“In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members' joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the former's own bidding rules and procedures contained in its RFP. Therein lies Comelec's grave abuse of discretion.”
But the Court did not speak with one voice.
Justice Davide:
“Finally, there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable. All that the petitioners claim is that ‘the bidding and the award process was fatally flawed. The public respondents acted without or excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project.’ It may be precipitate for this Court to declare void the contract in question.”
Justice Vitug:
“The electoral process, it is true, should be of paramount and immediate concern to every Filipino. It is also probably true that the computerization/automation of our electoral process, as well as the progress that it brings, is just as important. Nevertheless, it could also be unwise for the Court, for that sake alone, to precipitately take on the case; after all, we have been without it for decades. The opinions expressed by my colleagues, collectively and individually, should indeed give compelling reasons for the Commission on Elections to perhaps take notice and, on its own, to forthwith reexamine the assailed bidding process.”
Justice Tinga, joined by Justices Azcuna and Corona:
“In deciding the instant case, the Court shall consider only the undisputed or admitted facts and resolve only the specific questions raised by the parties. The Court is not a repository of remedies or a ‘super-legal-aid bureau.’ We cannot grant relief for every perceived violation of the law or worse, on the basis of prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: ‘Judicial power, however large, has an orbit more or less strictly defined by well-recognized presuppositions regarding the kind of business that properly belongs to courts. Their business is adjudication, not speculation. They are concerned with actual, living controversies, and not abstract disputation.’”
Briefly, the decisin was 10 to 5. The main thrust of the dissents was that the verification of criminal facts should first be left to somebody else. Under the law, it was the responsibility of the Ombudsman.
What did the Ombudman find?
“Finally, it should be made clear that the conclusions herein arrived at do not in any way run counter to the findings and ruling of the Supreme Court in the Infotech case. In the first place, that case is a civil suit requiring only a preponderance of evidence. On the other hand, the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed. The mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause. . . .
“WHEREFORE, this Office recommends the following:
2. That the criminal complaints against public and private respondents be DISMISSED for lack of probable cause.”
It does boggle the mind; but you be the judge. And it might be enlightening to compare the evidence used for the suspension of oppositionist Mayors.

You Be the Judge

Let me start with snippets of the decision of the Supreme Court on the Mega Pacific automation contract. Some paragraphs of the main opinion written by Justice Panganiban set the tone:
“There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; 1 or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure.”
“Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items . . .”
“Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn ‘constitutional duty’ to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll body's ability and capacity to conduct automated elections. Truly, the pith and soul of democracy — credible, orderly, and peaceful elections — has been put in jeopardy by the illegal and gravely abusive acts of Comelec.”
“At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.”
“In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members' joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the former's own bidding rules and procedures contained in its RFP. Therein lies Comelec's grave abuse of discretion.”
But the Court did not speak with one voice.
Justice Davide:
“Finally, there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable. All that the petitioners claim is that ‘the bidding and the award process was fatally flawed. The public respondents acted without or excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project.’ It may be precipitate for this Court to declare void the contract in question.”
Justice Vitug:
“The electoral process, it is true, should be of paramount and immediate concern to every Filipino. It is also probably true that the computerization/automation of our electoral process, as well as the progress that it brings, is just as important. Nevertheless, it could also be unwise for the Court, for that sake alone, to precipitately take on the case; after all, we have been without it for decades. The opinions expressed by my colleagues, collectively and individually, should indeed give compelling reasons for the Commission on Elections to perhaps take notice and, on its own, to forthwith reexamine the assailed bidding process.”
Justice Tinga, joined by Justices Azcuna and Corona:
“In deciding the instant case, the Court shall consider only the undisputed or admitted facts and resolve only the specific questions raised by the parties. The Court is not a repository of remedies or a ‘super-legal-aid bureau.’ We cannot grant relief for every perceived violation of the law or worse, on the basis of prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: ‘Judicial power, however large, has an orbit more or less strictly defined by well-recognized presuppositions regarding the kind of business that properly belongs to courts. Their business is adjudication, not speculation. They are concerned with actual, living controversies, and not abstract disputation.’”
Briefly, the decisin was 10 to 5. The main thrust of the dissents was that the verification of criminal facts should first be left to somebody else. Under the law, it was the responsibility of the Ombudsman.
What did the Ombudman find?
“Finally, it should be made clear that the conclusions herein arrived at do not in any way run counter to the findings and ruling of the Supreme Court in the Infotech case. In the first place, that case is a civil suit requiring only a preponderance of evidence. On the other hand, the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed. The mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause. . . .
“WHEREFORE, this Office recommends the following:
2. That the criminal complaints against public and private respondents be DISMISSED for lack of probable cause.”
It does boggle the mind; but you be the judge. And it might be enlightening to compare the evidence used for the suspension of oppositionist Mayors.

You Be the Judge

Let me start with snippets of the decision of the Supreme Court on the Mega Pacific automation contract. Some paragraphs of the main opinion written by Justice Panganiban set the tone:
“There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; 1 or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure.”
“Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items . . .”
“Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn ‘constitutional duty’ to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll body's ability and capacity to conduct automated elections. Truly, the pith and soul of democracy — credible, orderly, and peaceful elections — has been put in jeopardy by the illegal and gravely abusive acts of Comelec.”
“At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.”
“In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members' joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the former's own bidding rules and procedures contained in its RFP. Therein lies Comelec's grave abuse of discretion.”
But the Court did not speak with one voice.
Justice Davide:
“Finally, there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable. All that the petitioners claim is that ‘the bidding and the award process was fatally flawed. The public respondents acted without or excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project.’ It may be precipitate for this Court to declare void the contract in question.”
Justice Vitug:
“The electoral process, it is true, should be of paramount and immediate concern to every Filipino. It is also probably true that the computerization/automation of our electoral process, as well as the progress that it brings, is just as important. Nevertheless, it could also be unwise for the Court, for that sake alone, to precipitately take on the case; after all, we have been without it for decades. The opinions expressed by my colleagues, collectively and individually, should indeed give compelling reasons for the Commission on Elections to perhaps take notice and, on its own, to forthwith reexamine the assailed bidding process.”
Justice Tinga, joined by Justices Azcuna and Corona:
“In deciding the instant case, the Court shall consider only the undisputed or admitted facts and resolve only the specific questions raised by the parties. The Court is not a repository of remedies or a ‘super-legal-aid bureau.’ We cannot grant relief for every perceived violation of the law or worse, on the basis of prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: ‘Judicial power, however large, has an orbit more or less strictly defined by well-recognized presuppositions regarding the kind of business that properly belongs to courts. Their business is adjudication, not speculation. They are concerned with actual, living controversies, and not abstract disputation.’”
Briefly, the decisin was 10 to 5. The main thrust of the dissents was that the verification of criminal facts should first be left to somebody else. Under the law, it was the responsibility of the Ombudsman.
What did the Ombudman find?
“Finally, it should be made clear that the conclusions herein arrived at do not in any way run counter to the findings and ruling of the Supreme Court in the Infotech case. In the first place, that case is a civil suit requiring only a preponderance of evidence. On the other hand, the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed. The mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause. . . .
“WHEREFORE, this Office recommends the following:
2. That the criminal complaints against public and private respondents be DISMISSED for lack of probable cause.”
It does boggle the mind; but you be the judge. And it might be enlightening to compare the evidence used for the suspension of oppositionist Mayors.

You Be the Judge

Let me start with snippets of the decision of the Supreme Court on the Mega Pacific automation contract. Some paragraphs of the main opinion written by Justice Panganiban set the tone:
“There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; 1 or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure.”
“Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items . . .”
“Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn ‘constitutional duty’ to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll body's ability and capacity to conduct automated elections. Truly, the pith and soul of democracy — credible, orderly, and peaceful elections — has been put in jeopardy by the illegal and gravely abusive acts of Comelec.”
“At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.”
“In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members' joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the former's own bidding rules and procedures contained in its RFP. Therein lies Comelec's grave abuse of discretion.”
But the Court did not speak with one voice.
Justice Davide:
“Finally, there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable. All that the petitioners claim is that ‘the bidding and the award process was fatally flawed. The public respondents acted without or excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project.’ It may be precipitate for this Court to declare void the contract in question.”
Justice Vitug:
“The electoral process, it is true, should be of paramount and immediate concern to every Filipino. It is also probably true that the computerization/automation of our electoral process, as well as the progress that it brings, is just as important. Nevertheless, it could also be unwise for the Court, for that sake alone, to precipitately take on the case; after all, we have been without it for decades. The opinions expressed by my colleagues, collectively and individually, should indeed give compelling reasons for the Commission on Elections to perhaps take notice and, on its own, to forthwith reexamine the assailed bidding process.”
Justice Tinga, joined by Justices Azcuna and Corona:
“In deciding the instant case, the Court shall consider only the undisputed or admitted facts and resolve only the specific questions raised by the parties. The Court is not a repository of remedies or a ‘super-legal-aid bureau.’ We cannot grant relief for every perceived violation of the law or worse, on the basis of prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: ‘Judicial power, however large, has an orbit more or less strictly defined by well-recognized presuppositions regarding the kind of business that properly belongs to courts. Their business is adjudication, not speculation. They are concerned with actual, living controversies, and not abstract disputation.’”
Briefly, the decisin was 10 to 5. The main thrust of the dissents was that the verification of criminal facts should first be left to somebody else. Under the law, it was the responsibility of the Ombudsman.
What did the Ombudman find?
“Finally, it should be made clear that the conclusions herein arrived at do not in any way run counter to the findings and ruling of the Supreme Court in the Infotech case. In the first place, that case is a civil suit requiring only a preponderance of evidence. On the other hand, the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed. The mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause. . . .
“WHEREFORE, this Office recommends the following:
2. That the criminal complaints against public and private respondents be DISMISSED for lack of probable cause.”
It does boggle the mind; but you be the judge. And it might be enlightening to compare the evidence used for the suspension of oppositionist Mayors.

You Be the Judge

Let me start with snippets of the decision of the Supreme Court on the Mega Pacific automation contract. Some paragraphs of the main opinion written by Justice Panganiban set the tone:
“There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; 1 or (2) when it is executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in reckless disregard of its own bidding rules and procedure.”
“Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial, technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three items . . .”
“Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice but to exercise its solemn ‘constitutional duty’ to void the assailed Resolution and the subject Contract. The illegal, imprudent and hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the poll body's ability and capacity to conduct automated elections. Truly, the pith and soul of democracy — credible, orderly, and peaceful elections — has been put in jeopardy by the illegal and gravely abusive acts of Comelec.”
“At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines with respect to the bidding process, thereby negating a fair, honest and competitive bidding.”
“In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and the members' joint and several liability therefor, Comelec nevertheless assumed that such consortium existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross violation of the former's own bidding rules and procedures contained in its RFP. Therein lies Comelec's grave abuse of discretion.”
But the Court did not speak with one voice.
Justice Davide:
“Finally, there is no suggestion that graft and corruption attended the bidding process, or that the contract price is excessive or unreasonable. All that the petitioners claim is that ‘the bidding and the award process was fatally flawed. The public respondents acted without or excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project.’ It may be precipitate for this Court to declare void the contract in question.”
Justice Vitug:
“The electoral process, it is true, should be of paramount and immediate concern to every Filipino. It is also probably true that the computerization/automation of our electoral process, as well as the progress that it brings, is just as important. Nevertheless, it could also be unwise for the Court, for that sake alone, to precipitately take on the case; after all, we have been without it for decades. The opinions expressed by my colleagues, collectively and individually, should indeed give compelling reasons for the Commission on Elections to perhaps take notice and, on its own, to forthwith reexamine the assailed bidding process.”
Justice Tinga, joined by Justices Azcuna and Corona:
“In deciding the instant case, the Court shall consider only the undisputed or admitted facts and resolve only the specific questions raised by the parties. The Court is not a repository of remedies or a ‘super-legal-aid bureau.’ We cannot grant relief for every perceived violation of the law or worse, on the basis of prophetic wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: ‘Judicial power, however large, has an orbit more or less strictly defined by well-recognized presuppositions regarding the kind of business that properly belongs to courts. Their business is adjudication, not speculation. They are concerned with actual, living controversies, and not abstract disputation.’”
Briefly, the decisin was 10 to 5. The main thrust of the dissents was that the verification of criminal facts should first be left to somebody else. Under the law, it was the responsibility of the Ombudsman.
What did the Ombudman find?
“Finally, it should be made clear that the conclusions herein arrived at do not in any way run counter to the findings and ruling of the Supreme Court in the Infotech case. In the first place, that case is a civil suit requiring only a preponderance of evidence. On the other hand, the finding of probable cause in a criminal case entails, as well, the determination of sufficient evidence to support a judgment of conviction if one will be filed. The mere claim that grave abuse was committed, standing alone is not sufficient to warrant a finding of probable cause. . . .
“WHEREFORE, this Office recommends the following:
2. That the criminal complaints against public and private respondents be DISMISSED for lack of probable cause.”
It does boggle the mind; but you be the judge. And it might be enlightening to compare the evidence used for the suspension of oppositionist Mayors.

A CONSTITUTIONAL NIGHTMARE

I can see the Supreme Court coming out with a divided opinion on the propriety of revisiting Santiago vs. Comelec. After all, women and men of good will can disagree about the applicability of legal principles generally employed for issue preclusion such as res judicata or stare decisis. Justices already disagreed on this in the PIRMA case in 1997.
I can also see the possibility of a divided opinion on the correctness of the Santiago vs. Comelec decision. I myself am of the view that when the Constitution itself expressly commands Congress to implement a constitutional scheme such as initiative and referendum, the Court cannot be too demanding and strict and persnickety in its evaluation of the judgment of Congress.. After all, when there is a textually demonstrable commitment of a task to a political department such as Congress, the Constitution expects that Congress be given elbow room. We have such a situation here: “The Congress shall provide for the implementation of this right.”
As to the adequacy of standards given by Congress to the Comelec for the issuance of rules and regulations to implement the system, that too can be approached with liberality. Standards, after all, need not always be spelled out in formulaic language because standards can be gleaned from the totality of the terms of the delegating law.
Having said all that, however, do I also see the Supreme Court affirming the dismantling of the presidential system and the scuttling of Senate and House and calling it mere amendment and not a revision? Liberality, yes; but absurdity, no!
I am impressed by the words of the young counsel for One Voice who said: “The framers of the Constitution were wise men and women [in spite of my participation]. They saw initiative as a complicated and difficult mode of changing the fundamental law, and therefore limited it to amendments. For how can millions of Filipinos come together to present revisions for a new structure of government without any form of organized debate? They foresaw the nightmare that can result from any attempt to revise a Constitution through an unstructured people’s initiative. We are now seeing what the framers foresaw in 1986 – a nightmarish draft of a new Constitution.”
Calling the Sigaw draft nightmarish maybe hyperbolic. But, like other hyperboles, it is not without glaring elements of truth. The draft does contain dark regions where selfish vested interests and obfuscatory formulas and unstated amendments lurk.
Take for instance this proposed line on Article VI: “. . . all other Sections of Article VI are hereby retained and renumbered . . ., unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government . . .” The people who are to ratify the document are expected to guess which of them are inconsistent with a parliamentary form of government and how they will be amended. Are the authors kidding?
In fact counsel for One Voice submitted to the Court a matrix of what would come out if the formula submitted by Sigaw were to be followed. Read it for yourselves and weep! Counsel describes it as “a mismash of incomplete, dangerous, confusing, absurd, inconsistent, and ghost or hidden provisions.”
In the midst of all this, it is eye-brow-raisingly strange that the Solicitor General, the government’s chief lawyer, should instead be lawyering for private parties and against the Commission on Elections. His action answers the questions raised by Justice Panganiban in 1997: “Does the clamor for the proposed change in the Constitution really emanate from the people who signed the petition for initiative? Or is it the beneficiaries of [the proposed change] who are in fact orchestrating such movement to advance their own political interests?”
To find out who the immediate beneficiaries will be, read the proposed Transitory Provisions. The first beneficiary of the change would be the President, who will have the powers of both President and Prime Minister. The other beneficiaries will be the members of Congress and the local elective officials.
Interestingly, the term of Senators will last no longer than 2010. There is, however, no indication of the length of the term of Members of the House except to say that they will stay on until the election of members of Parliament. But there is no indication of when the elections will be! As for the local elective officials, the election of their successors will take place together with the election of members of Parliament on a date still to be announced.
Finally, within forty-five days from the ratification of the changes being proposed, “the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution . . .” In other words, the current proposals will be revised immediately after they are ratified! So, why not just wait for a new Congress?
One might ask, may the Court pass judgment on the wisdom of proposals? Normally, no; but when the proposals border on unintelligibility, it is not just a matter of wisdom but a question of manner. Whatever is proposed, wise or unwise, must be proposed in an intelligible manner. So the Supreme Court said in 1971 in Tolentino vs Comelec. To foist Sigaw’s manner on the Filipino people is a scandalous travesty. But this is what Sigaw is asking the Supreme Court justices to bequeath as their legacy.

AMENDMENT OR REVISION?

Assuming that the Supreme Court finds no legal obstacle to revisiting the 1997 case of Santiago v. Comelec, assuming further that the Supreme Court should rule that the 1997 decision was incorrect and that in fact R.A. 6735 is a sufficient enabling law for proceeding with charter change via initiative and referendum, will it immediately follow that the Commission on Election should schedule a plebiscite on what is being currently proposed?
That question was already answered by Justice Panganiban in the 1997 case of Pirma v. Comelec. Panganiban, who was then for upholding the sufficiency of R.A. 6735, said: “[M]y position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it.”
Why far from it? Why did Panganiban say that? Because, as he said, it was still necessary for the proponents to hurdle several questions. And the first question he posed was: “Does the proposed change constitute a mere amendment and not a revision of the Constitution?”
The same question must still be asked today. Are the proposed shifts from a presidential to a parliamentary form of government and from a bicameral Congress to a unicameral Parliament mere amendments and not a revision beyond the power of initiative and referendum? It is thus necessary to understand the distinction between amendment and revision.
Under the 1935 Constitution it was not necessary to make a distinction between amendment and revision because only Congress and a Constitutional Convention could propose changes then and they could propose either amendments or revision. Even then, however, experts on Constitutional Law already made the distinction. The eminent constitutionalist Vicente G. Sinco, former Dean of the U.P. College of Law and whose book on Political Law was for a long time the textbook used in law schools, explained the distinction thus:
“Strictly speaking the act of revising a constitution involves alterations of different portions of the entire document. It may result in the rewriting whether of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions. But whatever result the revision may produce, the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the provisions of the constitution to determine which one should be altered or suppressed or whether the whole document should be replaced with an entirely new one.”
This definition is also clearly reflected in the deliberations of the 1987 Constitution. What Sigaw and company have been advocating fit neatly into Sinco’s definition of revision.
Sinco next proceeds to define amendments:
“The act of amending a constitution, on the other hand, envisages a change or only a few specific provisions. The intention of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect.”
This too is reflected neatly in the deliberations of the 1986 Constitutional Commission. Sigaw and company’s proposals, on the other hand, fit neatly into what a mere amendment is not.
Briefly, the thrust of revision is to search, destroy, and replace. The thrust of an amendment is to search and improve.
But why limit initiative and referendum to simple amendments? The answer, which one can easily glean from the rather long deliberations on initiative and referendum in the 1986 Constitutional Commission, is practicality. In other words, who is to formulate the revision or how is it to be formulated? Revision, as concretely being proposed now, is nothing less than a rebuilding of the Philippine constitutional structure. Who were involved in formulating the structure? What debates ensued? What records are there for future use in interpreting the provisions which may be found to be unclear?
In a deliberative body like Congress or a Constitutional Convention decisions are reached after much purifying debate. And while the deliberations proceed, the public has the opportunity to get involved. It is only after the work of an authorized body has been completed that the it is presented to the electorate for final judgment. Careful debate is important because the electorate tends to accept what is presented to it even sight unseen
I will not attribute ill motives to the authors of the proposed current changes. Nevertheless it may be salutary to repeat what Justice Kapunan warned in the 1997 Pirma decision: “We should, therefore, be wary not to be mesmerized by the mere incantations of ‘democracy’ and ‘people’s will.’ We echo the famous words of Madame Rowland, a champion of libertarian ideas during the French Revolution, just before she was guillotined: ‘O Liberty, what crimes are committed in thy name.’”
P.S. In the current debate on charter change, I find it amusing when my unsaintly self and, for heavens sake, the Catholic Church are attacked instead of whatever I might say. Ah, well! I guess that’s part of life.