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Sep 27

Shazam! at Supreme Court

It’s interesting how the battered morale of those questioning the so-called “people’s initiative” improved as the Supreme Court’s oral arguments went on, finally concluding around quarter to 11 in the evening. The impression began to grow that a razor-thin majority against the initiative was not only evident, but would hold. By this morning, the buzz among legal observers was that a unanimous vote against the initiative was a strong probability.

The conspiratorially-inclined will probably seize on this to prove either a failed whispering campaign by proponents of the “people’s initiative” to condition the mind of the public to a victory for them, or on the part of anti-initiative forces to add sheen to what was, for most of the time leading up to the hearing or arguments, considered a formidable case.

Hostility from the court was what got tongues wagging and what the papers seized on: see the accounts of The Daily Tribune, of The Manila Times, which also focused on Justice Gutierrez. One colleague described her participation as “especially caustic,” while a lawyer who attended the hearings recounted to me that at one point, Justice Gutierrez asked Rene Saguisag if the change of one word in the charter could be a revision of the constitution. She used this example: if, from the present “The Philippines is a republican and democratic state” it was changed to “The Philippines is a republican and communist state.” Saguisag said yes, that would be a revision.

The lawyer whom the justices liked to question, though, seemed to be former Gov. Pablo Garcia of Cebu (father of the incumbent Cebu governor and of the SSS administrator). Observers, on the whole, felt that Raul Lambino did badly, as did former Justice Pardo -though one mentioned that absolutely the worst (most ineffective) performance was on the part of the Comelec’s lawyer. Lambino et al. seemed quite droopy by the end of the proceedings.

The The Business Mirror quoted some other justices:

“It is not correct to say that there is no majority decision because the motion for reconsideration is lost in a tie vote,” Senior Associate Justice Leonardo Quisumbing told Sigaw ng Bayan counsel Jose Pardo, who was also former associate justice of the SC.

Associate Justice Romeo Callejo Sr. even declared in open court that in Santiago v Comelec, “the Court did not authorize the Commission on Elections to authenticate signatures before a petition for initiative is filed.”…

Associate Justice Reynato Puno even asked whether the “abstract” of proposed amendments listed on the signature sheets that were distributed in various places in the country were written in English.

“I’m asking this to know whether the signatures were properly verified by the Comelec registrars and what proceedings were followed,” he said.

While most papers headlined the high court hearings, the Manila Standard-Today didn’t, but printed a (balanced) secondary story anyway.

Meanwhile, back at the House: debate set for the Constituent Assembly scheme. The Speaker calls it Plan B:

“We have plan B [which is] the constituent assembly (con-ass) approach, [a] joint session of senators and congressmen,” House Speaker Jose de Venecia said.

Majority Leader Prospero Nograles said that debates on convening Congress into a con-ass has been scheduled.

“We just approved the resolution’s committee report and I have calendared it [as] part of the business for the day. We want to finish this on or before October 12,” Nograles said.

De Venecia added that the Senate does not have to approve the proposed amendments as long as three-fourths of the House of Representatives or 196 lawmakers approve them.

“Right now we have 193. So now we are only short by three votes,” de Venecia said.

As Rep. Nograles puts it, “we cannot lose twice.” The legislative calendar may be revised in view of the emerging situation. I asked an administration-affiliated congressman whether he believed there’s a plan B and he said no, it’s premature -the House, according to him, has been told to not even talk about Cha-Cha because it would undermine Singaw’s case.

The Palace is said to be angry at Sec. Puno because he didn’t share resources provided to oust Pasay City Peewee Trinidad.

One thing’s sure: the Palace remains fearful of Estrada and has its own plans to neutralize him.

In other news: President’s anti-corruption adviser laments the lack of interest of his Filipino peers:

Kwok, who considers himself “25-percent Filipino,” has been helping the Arroyo administration in its fight against corruption and irregularities since December 2004. He assisted the President in conducting a Presidential Anticorruption Strategic Planning Workshop.

He said he has traveled to 14 countries in the world giving advice on eliminating irregular practices, but that it is only in the Philippines where the heads of corruption-encrusted agencies do not seem to be seriously concerned about the problem.

Factory production down for the 7th month in a row.

In the punditocracy, my Arab News column for this week is Lost Opportunities of the Past Needn’t Represent an Eternal Regret.

Bong Austero on competitiveness, the need for a grand plan, and plans that are working well.

The Inquirer editorial points out the absence of a government plan for housing its workers.

Overseas, Tom Plate argues that what took place in Thailand wasn’t a coup -which replaces a head of state- but instead, a restoration of the powers of the monarchy. Roland Watson challenges the view that Thaksin was ever democratically elected, and says the coup was necessary to prevent large-scale People Power:

Many foreign governments and other organisations denounced the coup. They either did this to be politically correct, to protect perceived economic interests, or because they did not fully understand the situation inside the country. Further, Thaksin was never “democratically elected”. This implies that the rule of law has been upheld – but in Thailand it was not. The Thai Constitution and its system of checks and balances first failed when he was found innocent in the assets concealment case. There should have been massive demonstrations or other strong steps at that time, rather than waiting five years. He should never have had the opportunity to drag Thailand to the bottom of the cesspool of political corruption. Everything he did was anathema to democracy.

How do prime ministers form cabinets? Daily Yomiuri in its editorial explains how: carving up patronage.

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  1. hvrds

    You may agree or disagree with his opinons and that of Hamilton and Recto….For those who can reason ….

    From a short piece done by Atty. Rene Sarmiento in 1998 during the debates on Ramos’s attempt to amend the constitution. (Noted human rights lawyer and presently a Comelec Commissioner) on the background of the 1987 Constitution.

    Alexander Hamilton, member of the 1787 U.S. Constitutional Convention, and Claro M. Recto, member of the 1935 Philippine Constitutional Convention shared one thing in common. Both believed that Constitutions could be the repositories of rights and freedoms. Writing in the Federalist No. 84, Alexander Hamilton said that “the Constitution is itself, in every rational sense, and to every useful purpose, A Bill of Rights.” Speaking on the theme “The Triumph of the Constitution” on September 24,1949, Claro M. Recto said that the Constitution is “that sacred scrap of paper’ which is the embodiment of the fondest hopes, the noblest ideals, the most cherished rights, and the inalienable freedoms of the Filipino people, the sacred scrap of paper……is our inviolabl;e storbnghold against tyranny and opression, the impregnable bulwark of justice, freedom and liberty…”

    The 1987 Constitution is no exception to the nature of Constitutions contemplated by Hamilton and Recto. It is a rioch repository of rights and freedoms. It is even a vast improvement of the U.S. Constitution of 1787 and the 1935 Philippine Constitution because it encompasses the three generation rights which have been drawn from the blood-stained expereinces of the Filipino people, distilled from the liberation struggles of Third World peoples against colonialism and neo-colonialism and extracted from universally-acclaimed documents like the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights.

    It is worth pointing out that these three generation rights do not operate independently of each other. Rather, like players in a fine tuned orchestra, these rights operate according to the principles of indivisibility and interdependence.

    The first generation rights – also known as civil and politcal rights, are those rights which protect the individual from the arbitrary exercise of power by the all powerful state.

    The second generation of rights – also referred to as economic, social and cultural rights are those rights concerned with the material, social and cultural welfare of persons and require an activist response by the state to ensure that social goods and services are enjoyed by all persons.

    The third generation of rights – also referred to as solidarity or collective rights, include the right of people to a balanced and healthful ecology, rights of women, right to peace, right to total human liberation and development, and rights of children.

    In 1949 and in 1952, Claro M. Recto warned Filipinos that the threats to a Constituion as an inviolable sanctuary for our rights and liberties are those who interpret it in the false light of their own political conveneince, those men who have taken public office, swearing on the Constitution but are the first to call it a scrap of paper to avoid its injunctions and disobey its mandates; those inroads of imperialism and those all forms and brands of totalitarianism.”

  2. Shaman of Malilipot

    It’s only right that Justice Gutierrez should zero in on the legitimacy of the 6.3 million signatures.

    If those signatories were really passionate about their cause, how come I’m not seeing massive demonstrations in support of the “initiative”? There were anti-Cha-Cha demonstrators at the SC yesterday. I don’t think there were any Singaw demnstrators there.

    It only goes to show that the signature-gathering process was fraudulent. And Justice Gutierrez is justified to doubt it. I don’t hear any “sigaw” from the 6.3 million, not even a whimper. They got their few hundred pesos. End of story.

  3. Joselu

    i guess some people will tend to make their premature conclussions already from yesterdays debate but in reality it will still take a while for the SC to give the final word.
    many questions are still begging for anwers.yesterday was a good performance on both sides.
    i’m sure the SC will go beyound the partisan & subjective & emotional things.

  4. Jeg

    Stick a fork in the People’s Initiative. It’s on to Plan B.

  5. Global Pinoy

    GMA-FVR-JdV Conspiracy

    Objective: Charter Change

    Plan A: People’s Initiative, Operators: Sigaw, ULAP

    Plan B: Constituent Assembly, Operators: Majority Representatives

    Plan C: Martial Law, Operators: Junta –‘Hello Garci’ Generals, Trapos, Oligarchs

  6. Chabeli

    Global Pinoy:
    Galing, you hit the nail on the head! It’s NO WONDER anymore why FVR stuck it out in the 11th Hour with Gloria. It was to FVRs advantage that he was “inside” rather than outside the kulambo. This was the only way to make FVRs Cha-Cha materialize and for him to get back to power. FVR was apparently for FVR!!!
    ————–
    An administration congressman “informed” me that although many of them want a parliamentary form of government, MANY (he stressed this word) of them are not too keen about FVR, JdV or Gloria as Prime Minister. It could be a new ball game that these 3 Stooges are not aware of! Ha ha ha. Desperate power-hungry idiots!

  7. toots ople

    mlq3, the teamwork among the oppositors’ legal panel was very apparent though they belong to different groups (one voice, ALG, senate, bayan, etc). comparatively, the other side seemed to be not as well-prepared and supportive of each other. also, the supporters of the opposition side including some of the senators and chris monsod of one voice stayed until the very end (around 9:30 pm). it was my first time to witness a SC hearing. fascinating!

  8. DJB

    THE REPARTEE between Justice Gutierrez and Rene Saguisag bolsters the idea that what distinguishes AMENDMENT from REVISION is not the EXTENT of the change(s) proposed, as measured for example by the number of provisions or words to be altered, but the NATURE of the proposed change. I have suggested on this Comment thread that the dividing line is whether a new political regime will be inaugurated as a result and a new Constitution proclaimed as has happened in every such instance in Philippine history. The example given by Justice Gutierrez wherein a single word, “democratic,” is replaced by another, “communist” cannot arise unless some new political reality has arisen to cause such a change to be proposed and ratified, such as for example that the CPP NPA has seized power. In other words, the hypothetical change is plausible and realistic only if some real political regime change has occurred in the “real world” to cause that Constitutional REVISION. If however, the hypothetical change was something cosmetic, like changing “democratic” to “democracy-loving” or “egalitarian” then Rene Saguisag may have answered differently.

    Maybe Rene Saguisag thinks that the Sigaw ng Bayan proposal would result in a REVISION too. But he would be wrong, imo. Shifting to a unicameral parliamentary system may be a complex and daunting task that is better suited to concon or conass, but i don’t see why someday the people’s initiative mode might not be just what the good guys of the future will need to fix something in Philippine society.

    It would be wrong to take the position that a proposed change must be a revision just because it will have a major impact on society. For I cannot imagine any change worth going through drafting, campaigning and plebiscite that does NOT have a major impact on society. How else would we define amendment if it is a category to be reserved only for cosmetic or insubstantial changes to the charter.

    At least there is some definite criteria for distinguishing between revision and amendment in the customary usage of calling it a revision when a whole new Constitution is presented for ratification and an amendment otherwise.

    It wasn’t clear from the narration what Saguisag’s criteria are.

  9. vi massart

    The posts here are truly educational.

    Congratulations, Mr Quezon!

  10. DJB

    A nasty thought has just occurred to me.

    Suppose the Supreme Court rules that a shift to a unicameral parliament constitutes a REVISION of the Constitution.

    That would kill the People’s Initiative but it could enable the CON-ASS of JDV!

    As follows….

    There is clearly an AMBIGUITY in the Constitution Art XVII Section 1 where it says that amendments OR revisions may be proposed by a vote of 3/4 of the all the members of Congress.

    Up until now, I have always expected such a Con-Ass to be ruled unconstitutional if the 3/4 vote is not of both houses voting separately.

    But now I see HOW the Supreme Court could AVOID having to decide that Section 1 means something other than what it PLAINLY says. It can decide that since the proposed change is in the nature of a REVISION, there is a POLITICAL QUESTION that arises because of Separation of Powers principles.

    In other words, if there is an IRRECONCILABLE difference of opinion between the Senate and the House, which are CO-EQUAL in sharing the legislative powers of the Constitution, on a matter that could result in a REVISION of the charter, the Supreme Court must yield to the People themselves the task of adjudicating who is right between Senate and House.

    If it is a REVISION, the Court could find justification NOT to decide what the provision means BECAUSE it is a political question for the citizens themselves to resolve!

    The reason the Court cannot morally decide such controversies is that a REVISION can result in the EXTINCTION of the Supreme Court to whom appeal is being made to stop that very exercise, and so it would be a party with a conflict of interest in the result of its own decision! That is the nature of a “political question.”

    The ashes of PI as a REVISION could be the foundation throne of CON-ASS as a political question!

  11. DJB

    MLQ3,
    The fate of chacha by CON-ASS depends on what the following provision means:

    Art XVII Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.

    Nothing would seem to be simpler or clearer. But given the bicameral structure of the Congress, some believe the provision means three-fourths of both Houses voting separately, as with all other laws passed by Congress. Of course that is not what the Constitution plainly and simply says. So the Bicameralists would want the Supreme Court to DECIDE on what it means.

    But notice that if the Supreme Court can find a way to AVOID making such a determination, for example, on the grounds that it is actually a POLITICAL QUESTION beyond its jurisdiction and competence to decide, then CON-ASS voting en banc, so to speak, could pass SC muster by default, and 196 votes could bring about a plebiscite.

    Justice Brandeis was once quoted by Justice V. Mendoza as saying, “The most important thing the Supreme Court decides, is what NOT to decide.”

    I think the best outcome is if the Court rules the shift to a unicameral Parliament to be an AMENDMENT. PI can still die from other, more natural causes (such as the signatures of the living dead…)

    Then, when the CON-ASS case comes up to the High Court as a result of Plan B, it cannot say there is a political question, since surely, what Section 1 means for MERE amendments is within the jurisdiction of the Court, else what’s Judicial Review for, eh?

    One could think of the ordinary legislation produced by Congress as “amendments” to the Constitution, in the nature of a necessary and eternal amplification and adaptation of the Law to ever changing society. Ordinary legislation is passed by a Con-Ass–called the Congress–on an ongoing basis. Therefore, the Supreme Court ought to have the jurisdiction to decide what Section 1(1) means for textual amendments to the Constitution–namely that it is the same as for ordinary laws. The power of judicial review surely extends to that realm. Of course it must then rule Section 1 means “voting separately” as with ordinary laws.

  12. Phil Cruz

    DJB,
    Your devil’s advocate theories above, are indeed impressive and scary at the same time. The scenarios you painted are the result of an objective analytical mind.

    But still I think majority of the Filipinos still use common sense and a simple analysis tells them that if a name of a town or street that is to be changed requires the two Houses of Congress to vote separately, the more they should do so in changing the fundamental law of the land, the Constitution.

    Should the Supreme Court leave it up to the Lower House to decide, I think this would be a huge huge cop-out on their part for refusing to decide on an issue that is as plain as day to most Filipinos. Should they refuse to decide, they would lose the respect of the nation. The Supreme Court is to me much like the King of Thailand. The last bastion of stability. Once they go to the dogs, the whole nation goes with it. And that is scary. It could lead to a Thai-type of situation and a coup by a Philippine military would not be a welcome situation.

  13. domingo arong

    MLQ

    The question concerning the distinction between the terms “revision of” and “amendment to” in Article XVII ought to be approached from the standpoint of those to whom the POWER to propose the “revision of” or “amendment to” is to be entrusted.

    The dictionary meanings of the two terms show now doubt that they are synonymous; but listen how Saguisag and Justice Gutierrez offer different interpretations of what these terms mean. I’m sure bloggers (not to mention lawyers) have their own version of what constitutes a REVISION or an AMENDMENT.

    I think the best solution is to leave this problem to those the Constitution empowers to “revise” or “amend” the one existing or the current prevailing.

    They’re the only ones authorized to decide what it means.

    As I see it, changes to a constitution become a REVISION if its framers decide to name and cite the document according to the YEAR it is ratified–irrespective of what provisions have been deleted or added to the OLD version.

    The Philippines has had three such REVISIONS that the framers decided to call each of them: (1) the 1935 Constitution; (2) the 1973 Constitution; and (3) the 1987 Constitution.

    The 1973 was a REVISION, owing to the deliberate use by its framers of the YEAR as prefix to the title to distinguish the NEW 1973 from the OLD 1935 charter; in like manner, the 1987 was a REVISION of the 1973 as dictated by those who framed it.

    On the other hand, the term “amendment,” or its plural “amendments,” ought to refer to NEW provisions added to, or deleted from, a constitution, which the framers continue to name or cite according to the YEAR it was originally ratified.

    The 1973 Constitution, for example, was subjected to several “amendments” in 1976, in 1980, and in 1985.

    However, these “amendments” came to be cited by it framers only as “the 1976 Amendments to the 1973 Constitution,” or as “the 1973 Constitution as amended in 1976,” retaining in the process the YEAR of its original ratification, although most of these Marcosian AMENDMENTS were, to my mind, tantamount to a REVISION.

    So, if the authorized framers (they’re the ones empowered to revise or amend) decide to attach the YEAR to the title, it’s a REVISION of the OLD; other than that, it’s an AMENDMENT to the OLD.

    Anyway, however defined, the “ratifiers” have the final say.

  14. tbl

    i am not sure why there is a big debate on revision vs amendment. for clinicians, from day one they start their practice, when they say REVISION, there is complete change in the diagnosis or treatment options, it may mean life vs death; malignant vs benign, operating table vs conservative management. amendment is just a minor change which may not mean much to the final outcome of the patient’s condition. lawyers? maybe their job is to argue to the limit before arriving at a definite judgment. maybe to most Filipinos….it is as clear as noontime during summer.

  15. anna de brux

    “It could lead to a Thai-type of situation and a coup by a Philippine military would not be a welcome situation.”

    I agree with Phil. But on the other hand, Gloria might use the coup threat to sway the public to her way of thinking meaning “let’s go for cha-cha, con-ass, anything, otherwise, you know, the military might jump the gun” sort of scenario.

    Yikes!

  16. tbl

    yes, i remember my dad said, lawyers can easily make gray become white or black, or with a little time and argument, can make black into white or the other way around; it all depends on who is arguing. maybe same thing is true with the revision vs amendment.

  17. comelecAKO

    MLQ3,
    one mentioned that absolutely the worst (most ineffective) performance was on the part of the Comelec’s lawyer.

    How so?

  18. Phil Cruz

    Ha ha…I wouldn’t put it past her to think of such a thing, too, Anna. At any rate, the roads have narrowed down and lead to the Supreme Court’s door.

  19. manuelbuencamino

    Well once the new charter is in place gloria will need parliament for one last thing – to endorse her proclamation of martial law and then she can suspend the constitution and that’s that.

    Makes me wonder why the Batasan is in uch a rush to commit suicide.

  20. Phil Cruz

    MB, what can we expect from a herd of lemmings?

  21. Amadeo Dela Cruz

    Someone should upload the video (if there is one) of the SC debate on the peoples initiative in youtube. That would be one hell of an educational video!

  22. tbl

    i’ll be waiting for that video. never been in sc hearing. been in several congress sessions way back when there were “true leaders” in congress, before makoy’s fake batasan took over. it was an excellent experience for high school students then. not sure about the new congress, how these tongressmen work nowadays when they are in session.

  23. tbl

    per justice….

    “There is an old story/rumor about CM Recto or Dakila Castro ( I just can’t remember who of the 2). The story goes that the lawyer concerned won 2 cases using one argument in one and countering it in the other before the same judge.

    It was said that the judge was surprised to hear him counter the same argument he used in the other case before.

    He supposedly remarked that “Your honor I am now most certain as could ever be that I WAS WRONG IN THE PREVIOUS CASE”

    If this story proves to be true; I don’t think we can be that lucky to get away with it.”

    maybe this was the incident my dad was telling me!

  24. elinca

    Reading all these lengthy discourses about cha-cha, amendments and revisions, etc., I would conclude that jurisprudence (or whatever you call it) is the realm of the male of the species.

    Are all these arguments because we’re scared of Gloria ? I do not like her myself, but I salute her! She has proven to be formidable, how unlike a woman!!! and in a country known to be a bastion of machismo-ism! Her predecessor, Cory, had proven her pluck too–she held on to power inspite of all those nasty attempted coups. The only difference is when it’ time for an exit, Coty did so gracefully.

    I don’t care one way or another what happened to GMA–if she held on to power long enough, maybe she could redeem herself.(I anticipate your denouncements for saying this, guys, hahahaha!)

    I’m glad that the Filipinos had become receptive to the idea of a female president (even if Gloria just sneaked through ) Hey, you even bested the U.S.–never had a lady president here.

    As that ad with a woman posed holding a cigarette says:

    “WE’VE COME A LONG WAY, BABY!”

  25. elinca

    Don’t you think so, Anna?

  26. anna de brux

    Elinca, am with you all the way!

    As you say, at least RP has a female president even if she sneaked through the back door – gosh, she’s proven to be one goddamn, great sneak in that sense.

    US is typically mysoginous in that respect (no woman prez in history)!

  27. justice league

    tbl,

    Do fill in the gaps with what you know about the story. I don’t know the rest.

    elinca,
    I’d have to say no with regards to being scared perse of PGMA. We have to consider that the Constitution that PGMA is moving for might outlive her political life and be used by the next. Some of the arguments posted are point for point.

  28. DJB

    FootNote to Gutierrez-Saguisag interpellation:

    In Luther v. Borden (US) the “republican form of Government” clause of the Constitution was deemed to be a POLITICAL QUESTION that the Supreme Court was not competent to decide because it was a matter for people themselves, or a coordinate branch of govt to decide and enforce.

    In other words, if a Constitution were ratified containing the single word change from democratic to communist, the Court could not overrule such ratification. Or even consider the case, for their existence will have ceased even if they are replaced by a new Kangaroo Court.

  29. Jeg

    The abolition of a Senate and the abolition of the people’s right to directly vote for their leaders is such a regime change, DJB. The power to elect its head of state passes from the people to the ‘assemblymen’. Therefore, what the People’s Initiative is proposing is a revision even by your astute definition.

  30. cvj

    DJB, If during the Con-Ass deliberation, the Supreme Court does decide that the matter of two Houses of Congress voting jointly or separately is a ‘political question’, then it is the SC’s responsibility to frame the question properly. Since the question pits two equal Houses of Congress (i.e., the House of Representatives and the Senate) against each other, the SC cannot allow the House to proceed with voting jointly because that would mean implicitly ruling in favor of the House of Representatives (and against the Senate), which then violates their own determination that this is a political question. Therefore, the proper recourse would be a plebiscite to let the people determine the precise meaning of ‘The Congress, upon a vote of three fourths of its members’. Only after the results of the plebiscite are known, can Congress proceed to propose ammendments or revisions. Throwing the question to the people in this matter is fine by me.

  31. tbl

    justice,

    about the flip-flop companero, i can’t verify it with dad, he met the man at the pearly gates years ago.

    if it was recto, he was one of the best sidekicks of mlq, nini may still remember this. manolo may want to ask nini about the story.

  32. justice league

    TBL,
    Thank you

    CVJ,
    I agree with your ideas at the upper half though I have misgivings about the rest.

    Well, the Senate has to turn to someone for the question, we all know which House Of Congress the Executive will support if they are asked.

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