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Oct 26

Wars are not won by evacuations

Near the end of Mao Zedong’s life, when news of one particularly close call with a lung infection reached Chou Enlai, he soiled his pants. He had to change into new pants before he could rush to the Great Helmsman’s bedside to see if he would live or die.

I think many of us felt the same way yesterday (like bringing a baby into this world), particularly as, in what may have been a last-minute effort to turn the tide through rumor-mongering, news began to swirl that the government would win in the Supreme Court.

Finally, the first news came out and it was very good news; and then it was official -and gladdening! Banketa Republique among others, could suddenly look forward to a happy birthday. Naturally the folks at the Black and White Movement and One Voice were frabjous. Other groups banged pots and pans with joy.

As the Inquirer puts it, High court: Charter change bid a fraud

Still, as Fr. Joaquin Bernas, SJ puts it, Carpio’s opening paragraph says it all.

The decision of the Supreme Court, G.R. 174153 is available on line. It is strongly -and clearly- written. You can read the concurring opinion of the Chief Justice, as well as Sandoval-Gutierrez, and the dissenting opinions of justices, starting with Reynato Puno, then Ynares-SantiagoTingaNazario and Valsco

Or then again, since the Palace was quick to focus on Plan 1.v2 (appeal), the ground’s being set for a last-ditch effort to overturn the decision. One thing’s sure: Heherson Alvarez says print media proved it’s more influential than broadcast media in such debates. This means print’s going to receive more slap and tickle from the Palace.

Newsbreak has the skinny on the justice who clinched the vote for the antis in the Supreme Court, though the Manila Times has a different take on who was the clincher. In that light, this passage from the Chief Justice’s statement says it all:

Ten years, fifty years, a hundred years — or even a thousand years — from now, what the Court did here, and how each justice opined and voted, will still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day.Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation and the world for its independence, integrity, industry and intelligence.

That theirs was was an activist decision is clear; and I simply don’t understand what Bel Cunanan means when she wrote,

It makes one wonder how this country would be if the Court had even just a handful of activist jurists willing to break out of the constitutional straightjacket and more brave hearts with a little less concern for “institutional damage” and posterity, than for the nation’s future which, at the moment of decision, was truly in their hands.

Still, just how close a call it was brought to my mind what Winston Churchill said, as his countrymen celebrated the evacuation of the British Expeditionary Force from Dunkirk: “we must be very careful not to assign to this deliverance the attributes of a victory. Wars are not won by evacuations.” They are won through invasions. And the beach heads would be in the 2007 elections.

Exactly what might have been -and what still might be, since Business Mirror reports Plan B is a go– as far as the House intentions to amend the Constitution are concerned, is detailed by Newsbreak. The business community’s still regrouping in terms of its opinions -whether those from it supportive of the Palace should continue to do so, might be helped by that article. The political camps are mobilizing for a showdown in the House.

In the punditocracy, my column for today is Lame duck. Mercifully, By Jove! (and thank God he’s back to blogging the news) reveals what I wanted to know -what it was like at the Manila Hotel as the president’s visit heralded her Supreme Court defeat. It was a time to dust-off that old Palace chestnut: oh, Madame doesn’t really care. No, really. Trust us. Would she -or we- lie to you? She may have shown sangfroid, but she changed her schedule and nursed the local executives through lunch. And other news: there’s a Plan C.

The Daily Tribune pens a thorough editorial.

Dong Puno has a nice paragraph:

It doesn’t help that one of the most basic problems of both our Senate and our House is the elementary issue of…the quorum or, put another way, absenteeism. Yup, many of our esteemed legislators, after having received the people’s mandate, evidently make it their business to be otherwise occupied when the business of the people calls.

In the blogosphere, PCIJ reports Randy David’s articulation of a checklist for Philippine democracy:

* We cannot hope to gain anything unless we can first unify our people around a clear vision and engage their energies and enthusiasm in pursuit of these goals.

* Development has to start from the development of the people, through the provision of the minimum living conditions for sustained personal growth, through quality education, and the meaningful inclusion of our people in various aspects of the national life

* With regard to the private sector, those who have more in life are called upon to help those who have been excluded and opportunity without waiting to be prompted by the government.

* Corruption is not the most important of our problems but rather an expression of our most urgent problems: mass poverty and ignorance, patronage politics, expensive elections and an underdeveloped economy.

* Our private initiatives as citizens are valuable, but the crucial terrain of socail change is still the public arena, where policies and programs are decided.

* There is no shortcut to development.

* Some of our problems require simple and straightforward solutions, but many are multi-layered and complex. Every initiative rests on certain preconditions.

* No nation can progress without first instilling national pride and love of country among its people. National pride is to nations what self-respect is to individuals, a precondition for self-improvement. We must arrest our people’s dangerous descent to demoralization, and appeal to those who have made good here and abroad, to help lift the morale, especially of our young people, in these critical times.

Philippine Commentary weighs in with an analysis of the supremes’ decision. Comelec AKO asserts the language employed by Justice Carpio was intemperate and even tasteless -certainly, he says, unnecessary.

RG Cruz reports the Speaker’s defiant.

Mga Diskurso ni Doy cautions that the Palace must have been prepared for the possibility of defeat, and has been redoubling its efforts to achieve victory in the May 2007 elections. See Mental Pornography and The Philippine Experience, and blackshama’s blog, also Diego K. Guerrero, and the bystander as well. Uniffors says Raul Lambino was “pimp-slapped.” baratillo@cubao gives a more measured response and suggests this is merely round 1 in a prolonged fight.

blurry brain takes a critical look at the Philippines-Japan free trade agreement and the mentality of some of its advocates.

The Filipino Mind visits Mexico City.

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  1. vi massart

    Je suis Madame Massart, cher Monsieur.

  2. DJB

    My apologies Madame, but Mabuhay!

  3. jm

    MLQ3, UPS, thanks

    We follow basically same process, community level/scale, weekend signature gathering, (most gatherers & signatories work on weekdays). Not organized, issue specific movement, ‘Citizens Initiative for Peace’,’CI against PPA’, narrow petition down to very specific issue , basically to encourage community members to ‘learn by doing’ citizens initiative. I had hoped the youth to be interested, spread to nearby barangays, network. There was(is?) a parallel church program that would have made a difference in the crisis. According to Bishop Lagdameo,
    BUILDING A “CIVILIZATION OF LOVE”
    A Pastoral Exhortation for the Year of Social Concerns

    *Training programs for good governance;
    *Formation programs for good citizenship;
    *Election monitoring, voters’ education
    *Research-based social and political advocacies.

    “The possibilities of people power are enormous in the economic and political fields, such as in determining the directions of change, deciding policies, implementing projects and monitoring them so that the common good may be truly served” (328). Empowering people is thus a prerequisite in the renewal of our country. Without it, our destiny as a people would remain in the hands of the few.
    http://abplagdameo.blogspot.com/2006_05_01_abplagdameo_archive.html

  4. jm

    MLQ3, UPS, thanks

    We follow basically same process, community level/scale, weekend signature gathering, (most gatherers & signatories work on weekdays). Not organized, issue specific movement, ‘Citizens Initiative for Peace’,’CI against PPA’, narrow petition down to very specific issue , basically to encourage community members to ‘learn by doing’ citizens initiative. I had hoped the youth to be interested, spread to nearby barangays, network. There was(is?) a parallel church program that would have made a difference in the crisis.

  5. jm

    MLQIII, Sorry for the double transmition, pls erase the last. 11:04. Thanks.

  6. jm

    mlq3, Sorry for the double send, pls erase 11:04, thanks.

  7. cvj

    DJB@5:21am – “an example of an AMENDMENT that would be a proper subject of a people’s initiative that could NOT “still be considered a revision” yet is not trivial.

    An amendment to Article VII Section 4 introducing run-off elections between the top two candidates for President (and Vice President) in the event that a majority vote (50% + 1) is not obtained by any candidate during the first round of voting. I think this fits the above criteria.

  8. Shaman of Malilipot

    DJB, your definitions are too simplistic. If you agree with Puno,I agree with Tony Carpio’s distinction between amendment and revision. An amendment is a stand-alone change of a provision and, being so, does not impinge on any other provisions of the Constitution. Far from being trivial, an amendment can be substantial as, for instance, allowing foreign ownership of land, or opening up to foreign investors areas of investment presently reserved exclusively for Filipinos.

    You’re right, the people will always know the difference, without being strait-jacketed by simplistic formulaic equations like amendment = change to the Constitution and revision = change of the Constitution.

  9. justice league

    Sol Gen Nachura was actually asked for the 2 bills he filed in Congress to correct the infirmities of RA6735.

    There had been attempts before to rectify the matter. And that failure should be more borne by those who attempt to amend/revise the charter yet do not give flesh to the people’s “RIGHT” (the Charter considers it a right) to change the Charter by their own means.

    Surely, Nachura cannot be faulted since he did try. But what about the likes of JDV, Nograles, Pichay, Jaraula, etc… or even those in the Senate who advocate Chacha yet have done nothing for a proper People’s Initiative?

    That is also one of the reasons why I find disfavor for a Constituent Assembly.

    As stated, the charter views the People’s Initiative as a right. To deny a right with no valid reason is a crime. And there is a term for those who commit crime. And I certainly don’t want such people to change the Constitution in my name.

    Imee Marcos filed a bill for a proper People’s Initiative but has since shelved it. But then again, she is not one among those attempting CHacha at the present.

    Before these kind of people even attempt to revise the Constitution through a Constituent Assembly, they must provide the people a proper law to carry out their right whether the people wish to or not.

    THe Puno dissent was such a disappointment. It may be scholarly yet it lacked something that I expected him to incorporate in it. The “pro people” stance that he and CJ Panganiban like to provide.

    I don’t remember an instance in the dissent that he doubted the process involved and only that the resolution of “contentious facts” “will require presentation of evidence and their calibration by the COMELEC according to its rules..” THat he would remand the petition back to a COMELEC that already stated that the Petition appears to have satisfied the requirements seems a cop out as what the CJ said.

    “All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people to exercise initiative and referendum are liberally and generously construed in favor of the people.[84] Initiative and referendum powers must be broadly construed to maintain maximum power in the people.”

    Yet no where is there a command (that I remember) to COMELEC to enforce a standard to follow to determine if indeed the petition did come from the people.

    The dissent even states “Under Section 2(1), Article IX-C of the Constitution, the COMELEC has the power to enforce and administer all laws and regulations relative to the conduct of initiatives. Its rule-making power has long been recognized by this Court.”

    RA 6735 is silent on the matter of whether the process is available to people in power (as what ULAP is or even by proxie) and just say it is open to all registered voters.

    Obviously, The COMELEC won’t care on these matters but certainly that even Justice Puno doesn’t care; why should COMELEC care?

  10. DJB

    shaman,

    At least with these very brief definitions you can actually tell the difference between Amendment and Revision.

    Revision is NOT “any change of THE Constitution” it’s “any change OF Constitution” — there is actually a big, if nuanced difference. But you got Amendment right, it is any change TO THE Constitution.

    Regarding foreign ownership of land being a mere amendment, you might get a Court challenge on that from folks like Bayan Muna or the Philippine Chambers of Commerce and Industry. What may seem like a mere amendment to you could be a revision to them of our basic republic, democratic and nationalistic Constitution.

    CVJ, even in so simple a thing as run off elections, suppose the proponents say only those who voted in the primary may vote in the run off? That could invite a challenge as revising the basic tenets of suffrage. Not by me, but the point in both examples is that there is an ill-defined boundary on the freedom of the people to PROPOSE changes TO the Constitution. And though I know you’ve taken up my challenge as a rhetorical one, in the real world it certain restricts the people’s liberty. thanks anyway.

  11. cvj

    DJB, i take your point. Realistically speaking, such an initiative will most likely be challenged for the sort of reasons you mentioned and the Supreme Court would have to come in again.

    As a practical matter, i think anyone contemplating a PI will need to add to UP Student’s estimate above (at 1:18am) some additional funding for such a challenge. To avoid wasted time, funds and effort, the proponents should consider requesting clarification from the SC themselves (i.e. whether their proposed changes fall under ‘revision’ or ‘amendment’) before embarking on the signature collection phase.

  12. Shaman of Malilipot

    DJB, I’m nor concerned about what Bayan Muna or Donald Dee’s PCCI think about foreign ownership of land. Allowing foreign ownership of land will not change the republican and democratic nature of our political structure. Will foreign ownership of land rob our people of their sovereign, political, and human rights? There are republican and democratic countries that allow foreigners to own land and their peoples are no less nationalistic than us.

  13. justice league

    DJB,

    I can’t remember who but someone stated here that the so called PI can be defeated without delving into the question of whether the PI mode allowed amendment or revision. Seems the guy was right after all.

    However taking your challenge on something not trivial; I am reminded of the swiss attempt to toughen their abortion laws by changing the article with regards to the family in their charter. They attempted it via their “popular initiative.

    The attempt failed and now, Switzerland has liberalized abortion laws more than ever.

    Back to the challenge; pro abortion laws are unconstitutional at the moment because of the provision wherein “It shall equally protect the life of the mother and the life of the unborn from conception.” ( not that abortion isn’t happening)

    And there is also our Constituional ban on nuclear weapons.

    I guess it wouldn’t be trivial to have a PI to remove those clauses separately in the Charter. Other than that, I can’t think of another idea at this moment.

  14. DJB

    I think I have found another way of distinguishing revisions from amendments that people may find useful.

    Consider what happens in CON-CON and CON-ASS. In both of these there is a deliberative body of several hundred proponents who work purposively to make amendments to, or a revision of, the Constitution. All the proponents are colleagues in the sense that they usually discuss, debate, study, and vote on various parts of the amendments or revision before they all sign it and propose it for approval at plebiscite. Now the reason such bodies can undertake a massive revision or rewrite of the entire Constitution of course is that they ARE a deliberative body and they work together to craft the final draft.

    But in a people’s initiative the proponents or signatories number in the millions (12% of the electorate). Only a very small group of convenors or proponents actually get to write and draft the proposed initiative petition. There is no deliberative, purposive work done by 99.995% (wink!) of the signatories. Almost all of them just read and sign if they agree. They have no opportunity to say to the convenors how about if we fine tune so and so of the initiative petition.

    In other words, the requirement of FORM in people’s initiative, that the COMPLETE, FULL TEXT of the initiative petition be shown to the people for them to sign, means that there is a natural limitation to the possible COMPLEXITY and SCOPE of an initiative petition if it is to have the assent of millions of voters.

    I am assuming here a situation where the law has been set up so that people’s initiatives really do represent the free and comprehending approval of more or less intelligent voters.

    Given that condition, a proposed amendment that is “too complex” and represents “too great a change” as to amount to a revision in some people’s eyes, one that changes too many provisions will have a very difficult time getting the approval of the required 12%.

    The FORM of the initiative petitions is what limits their complexity and scope so they don’t attempt projects that are more suited to CONCON and CONASS.

    This view of the matter preserves the definitions I’ve proposed. It gives the people maximum freedom without allowing them a wholesale revision, but the limitation on actual amendments they might propose is imposed by the reality that too complex of a proposal cannot be approved by the right numbers.

  15. cvj

    re: “logrolling”, i did not know there is actually a term for what i was trying to describe here (which Lambino tried to pass off as ‘surplusage’):

    http://www.quezon.ph/?p=1054#comment-93700

  16. jm

    GMA and the Legion are bulldozing railroading a logrolling Charter change via a deceiving people’s initiative to impose a new Constition on the people but will not subject themselves to. The Constitution must defended against these rascals.

  17. jm

    DJB, re your CHALLENGE:

    1) An ammendment that cuts short the terms of Pres and VP, and sets a snap election.

    2)An ammendment that abolishes the COMELEC and forms a new body whose commissioners are appointed with stricter safeguards against partisan political interests and sets greater accountability.

    3) An ammenment that devolves the lower house, “substituting governors (or Representatives of provincial councils) for congressmen to serve as a periodically-summoned but not permantly-constituted lower house”.!!!

    Is a consolidation of ammendments possible?

  18. DJB

    JM,
    Perhaps it would help in discerning the Palace’s motivations to realize that CHACHA is not essential to GMA’s survival in 2007. She needs it really in 2010 when her regular term ends. All this was just a dress rehearsal for three years hence.

    CVJ–Most of us knew about BLOGROLLING b4 LOGROLLING!

  19. DJB

    Justice League,
    Sorry for the late reply. Those proposed amendments are very specific and single subject. One would think they ARE simple amendments. But the Catholic Church might have other ideas about that. While it is only a single line you wish to REMOVE or NEGATE, it could be seen as an attack on the very foundations of our Republic as a human institution under God, etc. Abortion is after all, one of the lines in the sand that no politician has ever crossed in this country. Even if the Catholic Church itself sponsors a system (“annulment”) which is said to make bastards of men and women who happen to be children of squabbling parents with annulled marriages!

    Still, I could see a Supreme Court challenge that will REQUIRE a ruling and again, there is no reasonable expectation that what looks like a simple amendment to you and me is a big deal to someone else.

    In essence, this treats the people like children who would not know better and is consistent i suppose with the fact that we also do not have a JURY SYSTEM in this country.

  20. justice league

    DJB,

    I’m not for abortion but I just wanted to point out a possible amendment.

    RA 6735 actually wants it to be a single subject only too.

    But I don’t feel that the Jury system is for us.

    It is hard to fathom the SC decision whether RA 6735 is an actual enabling law already. If you read the CJ’s concurring opinion; it seems he agrees that there is an enabling law like he opined in the PIRMA decision. That would appear to be a majority for RA 6735 as an enabling law.

  21. melvinsky

    I disagree with Justice Puno and DJB. I agree with Ed Lacierda. Why?
    1. Accepting Justice Puno’s opinion means that the people will literally directly change the whole constitution. This is absurd and impractical. Theoretically and ideally this is a laudable wish but nobody in his right mind will be able to do this.
    2. To put initiative into practice the more realistic way is to follow 6735i.e. limit only to one amendment(simple and small)
    3) Changing our constitution thru Direct democracy is nice to hear and to have but unrealistic.
    4) The distinction between amendment and revision is not dictated by all those nonsense but by commonsense. It took 2 years for a concon or 6 months for concom to deliberate and propose a change or revision. If we change ourconstitution thru direct democracy we will not be able to complete it in our lifetime.
    I find justice puno’s direct democracy of revising a constitution absurd and impractical.

  22. Bencard

    I agree with Abe Margallo’s point re “super” judicial activism being a threat to democracy, particularly to the concept of checks and balances. I can imagine nothing more tragic in our governmental scheme than when the supreme court act as just another political body engaging in judicial legislation disguised as “judicial review”.

    Noted constitutionalist author and profesor Jose M. Aruego expressed this concern, thus: “(h)uman beings that they were, with some of them not completely divorced from politics or from men high in politics, they were not entirely free from nor immune to politics. They also had their own loyalties, and these were not only to their own judicial work.”

    I think the majority in Lambino vs. Comelec went beyond its constitutional duty (to interpret and apply the Constitution in a justiciable case) by rendering what amount to be an advisory opinion on a theoretical issue that was not even raised by the litigants in the first place.

    Lambino was in the SC to ask the court to review the action of the Comelec in not giving due course to the PI on the ground that the enabling law (RA 6735)was inadequate.

    Instead of “reviewing” the Comelec’s action (which, of necessity, would involve a revisit of the Santiago ruling on the adequacy of RA 6735), the majority (through Justice Carpio) engages in a fact finding exercise to determine whether or not the “Labino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people’s initiative”. Concluding that it did not, the court dismissed the petition.

    It should be noted that the Comelec did not receive or hear any evidence on whether or not the Lambino group’s initiative petition was in compliance with the relevant provision of the Constitution. There was no factual record to review which is why the certiori petition was limited to the Comelec’s failure to give due course to the initiative. Its principal purpose was to determine whether it was proper for the Comelec not to submit the initiative to a plebescite in accordance with RA 6735. Instead of a reviewing tribunal, SC acted as a trial court passing upon the procedures and methodologies employed in the gathering of signatures, among other things, but relying mostly on arguments of counsels and self-serving memoranda submitted by the protagonists instead of fact witnesses and properly-admitted evidence.

    I think the ruling in itself was an abuse of discretion, albeit unappealable, and non-reviewable except by the court itself.

  23. Bencard

    edit: last sentence of the 5th paragraph should read: Concluding that it did, the Court dismissed the petition.

  24. jm

    Bencard,

    re “‘super’ judicial activism being a threat to democracy”:

    Did any of GMA’s supporters in the legal profession complain about ‘super judicial activism’ by the SC that ‘act as just another political body’ when the Davide SC committed something worse than an ‘abuse of discretion’ when they went onstage at EDSA to swear in GMA as (acting) President ousting a duly elected President on the strength of the VP GMA’s letter to the CJ Davide that Pres Estrada is ‘incapacitated’? Wasn’t that an act of sedition? Atty Paguia’s case against the SC was a chance at a ‘judicial correction’. Can you advance your case against ‘super judicial activicm’ without tracing the anomally back to the SC’s role in EDSA II and supporting Atty Paguia’s standing position against it?
    Just wondering.

  25. Bencard

    jm, I could be wrong but in the case of Estrada, my understanding is that he voluntarily “abandoned” the office of the presidency by words and action of which the court could have taken judicial notice. Therefore, the presidency became vacant and regular succession, pursuant to the Constitution, took place. I don’t believe the action of the SC in this instance constitutes “super judicial activism”.

  26. jm

    Bencard, “Abandonment” of office was cited as one reason for declaring vacancy or supporting what amounts to a “constructive resignation” the central thesis. CJ Davide had spoken of “judicial transendence” which could be the underlying judicial ideology behind the Court’s “judicial activism” a sample of which is the “extra-constitutional remedy” applied in the case of Erap’s “abadonment” and “constructive resignation” leading to the swearing in of GMA as “acting president”.

    I’m not a lawyer, atty Bencard, these terms and concepts are “way up over my simple mind”. But some terms seem self explanatory “extra-constitutional” means outside of the constitution, “constructiive resignation” is not written nor could be “constructed” to be in the constitution, that even granting that such is established it falls short of the requirement of the constitution, the prescribed procedure for a President to tender resignation was not followed, so that, I think, the proceedings at EDSAII lead by CJ Davide could be a case of “constructive sedition”.

    btw, Atty Paguia presented his case against CJ Davide before an audience of lawyers who were afterwards polled as to the merit of Paguia’s arguments. The lawyers’ verdict favoring Paguia was almost unanimous.

  27. Bencard

    jm, I don’t mean to denigrate your being a non-lawyer and I respect the positions taken by Atty. Paguia and the audience of lawyers who agreed with him “unanimous(ly)”. As I have stated previously, every citizen has a right to interpret the Constitution the way he/she has been given wisdom to comprehend it. However, the Supreme Court has the final word and no one can overrule it except itself. This, I believe is what Justice Davide meant by the term “judicial transendence” -i.e. the supremacy of the judiciary in interpreting the Constitution.

    The Constitution, being a relatively short document, cannot by its nature contain all the details of the law of the land, including universally accepted principles of law and equity such as “constructive abandonment”, “constructive resignation”, estoppel in pais, waiver, declaration against interest, “clean-hands” doctrine, ejusdem generis, etc. These are among the precepts that the SC uses in interpreting a constitutional provision.

    Your obviously made-up term “constructive sedition”, I think, is disingenuous but cute. Sedition’s primordial element is overt activity aimed at inciting treason, rebellion or commotion against public authority. It cannot be committed by implication.

    After she was sworn in, PGMA became the President (not merely “acting president”) by Constitutional mandate.

  28. shara

    do you think that supreme court has a credibilty in attaining its vision?

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