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.” [email protected] 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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    • DJB on October 26, 2006 at 8:01 am

    We learn something new in every Supreme Court decision. Here we are educated in the huge importance of sufficiency in form, which some people seem to think is a mere technicality or formality.
    Only if one thinks that counting the toes on a new born baby is a mere technicality. In this case, what the Court found was a baby with no head, heart, body or limbs. There is no petition with the full text of the actual amendments proposed, duly signed by the required numbers.

    I am struck by the power of the simplicity and directness of the interpretation of Art XVII Sec.2. A people’s initiative requires a physical initiative petition with the amendments actually stated in it. How hard could that be to comply with, considering the proponents knew it would come to the SC?

    Turns out they “failed miserably” at that seemingly simple task and produced a mutant moral dwarf rejected by the SC as “insufficient in form” but deceitful in substance.

    No wonder! Look at its architects!

    • monk_x on October 26, 2006 at 8:42 am

    mlq3,

    I wonder if the judgment of history is possibly overrated. It did not stop four Marcos appointees (Justices Barredo, Makasiar, Antonio and Esguerra) from siding with the dictator in Javellana v. Executive Secretary. Their solid loyalty towards Marcos prevented the Supreme Court in 1973 from attaining the needed 2/3 majority to overrule the dictator. In the present Lambino v. COMELEC, seven justices were not afraid to side with petitioners. Significantly, none of the seven Justices made references to the Javellana decision. Only Justice Panganiban and Sandoval-Gutierrez seemed warry of the judgment of history.

    • domingo arong on October 26, 2006 at 8:44 am

    mlq3, hope the requirement of attaching “the physical initiative petition” does not become a precedent in the casting of votes during a referendum to adopt a new or a “revision” of a constitution by likewise requiring the attachment of the draft constitution to each ballot cast.

    Also, Chief Justice Panganiban’s opinions you cited should have mentioned the more relevant INSULAR CASES (to Filipinos, that is) in addition to, or rather than, the “abomination of Dred Scott.”

    • mlq3 on October 26, 2006 at 11:11 am
      Author

    monk, it’s particularly in a close call that awareness of the judgment of history can be the positive clincher.

    domingo, personally i don’t understand the dislike some people have for citing either foreign events or foreign jurisprudence. we are all heirs of the great events that move things forward or even backwards. dredd scott matters to lawyers for the same reason magna charta matters to people in democracies, and those in non-monarchical societies look to the french revolution (as those in monarchies look to the fall of the stuarts in england).

    and as an indian reminded me, whether we like it or not we are heirs, because of the political systems we have, of the british political traditions for them and the american political and legal tradition for us. while we shouldn’t slavishly follow it, if relevant we should embrace it.

  1. The ironic thing is that the Puno opinion states the right law, the correct constitutional doctrine and is on the money on the authorities (both American and Philippine). Even the fine distinctions between “revisions” and “amendments” are cogently presented and indeed more reasoned that those in the main opinion.

    Puno’s scholarship definitely outshines Tony Carpio’s. But where’s the rub? Well, it’s scholarly yet dumb. Dumb because after all the erudite paeans for “people power” and “direct” or “participatory” democracy, he ultimately decided to feed them to the wolves in the COMELEC . . . yes, the same pack who would have been condemned for their shameless operation in the Mega Pacific scam.

    Philippine Constitutionalism would had been well-served, had the Puno and Carpio opinions been fused together and the justices were unanimous against the PIG.

    • jm on October 26, 2006 at 11:54 am

    mlq3,
    Erap said the SC vote should have been 15-0 against PI had it not been for the pressure from the Palace.

    Abe, “unanimous against the PIG”, if MR is filed ur line should be very pertinent for a 15 – 0 against the MR

    DJB, re Gloria and the 7 Dwarves, how possible is 1 of the magnificent 8 turning into a dwarf?

    • DJB on October 26, 2006 at 11:59 am

    As the curtain falls on Charter Change and the drama of that Huge Diversionary Tactic is ended, the people see a President holding the puppet strings to a “grand deception” in Sigaw ng Bayan. She has reached the same nadir that FVR did with Pirma, courtesy of the SC.

    Same dog. Same fleas.

    Except unlike him, she has three more long and weary years to go.
    I agree with your reflection of One Voice’s position in “Lame Duck” on the national and referendum character of the Senate race. If the people hand the Opposition a decisive victory in the Senate, that could be seen as a vote for CONVICTION at any potential impeachment trial. If the best they can do however is 6-6 or 7-5, that would mean a vote for the status quo or no conviction, and therefore no more impeachment.

    • manuelbuencamino on October 26, 2006 at 12:23 pm

    Ane,

    “it’s scholarly yet dumb.” Perfect.

    And it’s typical of the legalese that the Mob’s lawyers resort to when they argue against impeachment, for 1017, for 464, for censorship, for Ombudsgirl and all that.

    • dops on October 26, 2006 at 1:46 pm

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

    Oh, you just have to skip Cunanan’s column whenever you read INQ. I wonder why the INQ still publishes her articles…tztztz

    • FPJ_Forever on October 26, 2006 at 2:39 pm

    A 12-0 SENATE is IMPOSSIBLE, for we CANNOT TRUST the COMELEC – A MAJICIAN (Garci) can re-APPEAR and CHANGE the WILL of the PEOPLE … Any ELECTION from NOW ON, loses CREDIBILITY since
    we are POWERLESS, and DO NOTHING to PUNISH those WHO CHEATS !!!

    • manuelbuencamino on October 26, 2006 at 3:09 pm

    On JPEPA and the “deadly trash for cash” deal.

    A radio announcer said – ‘we will accept their toxic wastes if they take Arroyo and the Batasan ‘

    That’s certainly better than the Mob’s justification for signing JPEPA – ‘one man’s shit is another man’s treasure’

    • Karl on October 26, 2006 at 4:14 pm

    This will not go well for those who hate congressional investigations and inquiries; I hope the funding of the sigaw ng bayan must be digged into …or shall we just give the usulal excuse that the political economy is always ruled by the oligarchy and the elite,so wheneeverr mysterious funds appear we submit that it belongs to whomever owns those invisible hands.

    But the hands are not that invisible afterall.

    As long as this country is ruled by the elite in one form or the other, we will stay this way.
    I regret to say that, I won’t see changes in the immmediate future,but I still have hope that ONEVOICE will not stop with the Sigaw issue..One voice should go one step further,even in baby steps.

    • Shaman of Malilipot on October 26, 2006 at 4:43 pm

    Let’s face it, guys, Puno has to play dumb so he can become the next Chief Justice.

    My fearless forecast: The Queen of the Enchanted Kingdom will knight Puno as Chief Justice in December..

  2. Abe,

    Hi, how are ya? It’s been a while.

    Puno’s opinion while scholarly does not ultimately convinced me that the proposed changes are mere amendments. He paints in too broad strokes because the details do not support his conclusion. Unfortunately for him and Sigaw, the devil is in the details.

    Puno quotes the American political scientist Garner. The mere fact that a constitution must contain provisions on sovereignty, government and liberty does not mean that when only the provisions on government are being changed, that is a mere amendment. Nowhere does Garner, the American authority say so. What Puno did was to jump to the conclusion that if you change the form of government, it is a mere amendment.

    Based on the American experience, the Federal Constitution has always been changed piecemeal over its 200 years of existence. One does not see a wholesale change of provisions on the US Constitution. I highly doubt if Garner himself would share Puno’s justification of changing the constitution of government as one of mere amendment.

    The fact is, Puno’s leap is not supported by the American experience and history on amendments. His conclusion is merely based on his own understanding of the American political scientist Garner but even Garner does not make such a conclusion.

    Puno wants to give to the people the power to change the constitution and the wisdom to propose the changes. Our constitution says yes but up to a certain point. What Puno forgets is that constitutional law is not about wisdom, it is about power. Our Constitution gives the power to the people only to propose amendments, but not the wisdom to change wholesale the form of government. That is best left to a constitutional convention or to a constituent assembly to do so.

    • Chabeli on October 26, 2006 at 5:07 pm

    Is Bel Cunanan normal or what?!

    • Schumey on October 26, 2006 at 5:52 pm

    Now Alvarez accuses the media of pressure-play, but wasn’t it Sigaw that went on a media blitz? The constitution is the law of the land no sitting president or speaker of the house can go around it. The lower house may make their own rules and go around it when it suits them, but the contstitution is what it is, the LAW.

    Cunanan should go back to the contents of the proposed “revisions” and see for herself if the changes would benefit the nation or those who presently wield power. One Voice cannot be accused of protecting the status quo nor be accused of being elitist, isn’t those in power now members of the elite? Aren’t those in power now in control? Where does the ordinary Filipino come in? The PI is a tool to keep those in power now to stay in power for eternity. It may be a lost chance, but not for Juan dela Cruz but for those whose greed for power and wealth are insatiable.

    • DJB on October 26, 2006 at 7:19 pm

    Ed Lacierda,
    Nice to run into you here…Yup Puno’s Dissenting Opinion is definitely worthy of close perusal. I was particularly struck by his view that Courts may construe, but not construct the laws, so the ruling that RA 6735 was insufficient without striking it down as unconstitutional was intolerable as it is tantamount to the Court telling the Congress how to write good laws, which it would surely not tolerate if the Congress told the Court how to write good Decisions.

    But I want to ask you if you have an opinion, why hasn’t the Congress done anything to perfect 6735? Is their inaction a signal that they don’t accept the Court’s ruling that it is insufficient at all but is actually good enough?

    • Arbet on October 26, 2006 at 7:25 pm

    Dean, either Congress is lazy or an initiative law is not a priority. I tend to believe in the former.

    • mlq3 on October 26, 2006 at 7:29 pm
      Author

    i’d opine that congress has never been happy with the people’s initiative option and thus considered it a low priority. it made the effort to pass a law in the post-edsa era but once the era faded, so did the feeling it should do more.

    • jm on October 26, 2006 at 8:10 pm

    mlq3,

    Should an initiative law be a priority, be a subject of a citizens petition to their Reps and be considered an issue in the 2007 elections?

    Should an initiative law be passed satisfying the SC ruling, isn’t a PI for a Snap Elections via ‘bullet ammendments’ as proposed by Angara be a very welcome scenario?

    • Phil Cruz on October 26, 2006 at 8:22 pm

    Happy and sad, I am. Happy that the SC junked the PI. Sad that it was junked by a mere one vote. The implications are clear and scary. If the whole nation was on tenterhooks prior to this recent SC decision, wait till Chief Justice Panganiban retires in December when he is replaced by a pro-Gloria Chief Justice and they again deliberate on the same matter when Singaw files for reconsideration. Tenterhooks? We ain’t seen nothing yet. It’s gonna be fireworks.

    • Shaman of Malilipot on October 26, 2006 at 8:29 pm

    I’ve read the dissenting opinions of Justices Nazario, Tnga, and Velasco. They are not only dumb, they are vapid.

    • mlq3 on October 26, 2006 at 8:37 pm
      Author

    jm, actually yes, i’d think that with the sc decision, it becomes possible to use the pi model to propose an amendment concerning the president’s term and authorizing a snap election.

    • Phil Cruz on October 26, 2006 at 8:43 pm

    Poor Nograles et al…The Supreme Court daw should not have been too technical. The will of the people daw (the 6.3 million signatures daw) should have been given more weight. Hmmm…weren’t they the ones who kept on hollering and embracing “technicality” to junk the two impeachment bids against their boss woman?

    • DJB on October 26, 2006 at 8:47 pm

    One area where I actually outright AGREE with Mr. Justice Puno is in his discussion of REVISION and AMENDMENT, which does not suffer from the ambiguities of the degree-based metric adopted by the Majority, which means that every pi will probably have to be certified by the SC. This metric does not make it obvious how the proponents of any future people’s initiative can decide whether their proposal is an amendment or a revision because every such change is bound to be substantial and nontrivial. It will thus always take a Supreme Court to perform the complex act of discernment and fine distinction, which took many many pages in Lambino v. Comelec.

    By way of counter example, Puno also gives the example of the switch from unicameral to bicameral during the Commonwealth era, which was regarded as an amendment. I’ve made the argument here long ago that every amendment is likely to be substantial, otherwise it’s not worth the bother. So unless we want to condemn pi to only trivialities, some other metric must be adopted. I agree with Puno: a revision contemplates changing the entire document, as happened in 1973.

    As it turns out, both the Majority’s decision to rule on this matter by saying Sigaw is a revision, and the Dissent of Puno, are mainly ACADEMIC since, like the Pirma petition, the Sigaw petition is deemed infirm for reasons having nothing to do with this aspect of the thing.

    • jm on October 26, 2006 at 8:52 pm

    mlq3, thanks

    We start with a petition to our Congressman to make an enabling law that “is adequate to cover the system of initiative to amend the constitution.”

    • mlq3 on October 26, 2006 at 9:02 pm
      Author

    djb, this is where past precedents help in clarifying the distinction:

    1940: three amendments were proposed:
    a) changing the president’s term from 6 years with no reelection to 4 years with the possibility of reelection for 4 more years, a maximum of 8
    b) restoring the senate, unicameral to bicameral
    c) establishing the commission on elections

    each one could have been approved and the other two rejected, and held their own, unlike the unicameral-parliamentary-federal all or nothing of sigaw. none of the three fundamentally altered the unitary-presidential structure of the government.

    1946-47: the parity amendment, granting americans for a limited period (until 1973) equal economic rights. again, the change in economic policy did not fundamentally alter the poliical structure.

    in 1969, a plebiscite question was asked: do you approve the congress constituting itself as a constituent assembly to amend the constitution? this was rejected (to my knowledge the only time a plebiscite question was negatively decided by the electorate). this meant that a convention would be called, which it was in 1971.

    a convention cannot have limits imposed on it; it could have proposed amendments or it could, as it did, decide to propose an entirely new document, with a parliamentary structure. by all accounts, the electorate was prepared to reject the new constitution which is why fm headed off that possibility (and that of congress convening in january, 1973 and possibly void martial law) by calling the “barangay assemblies.”

    so i think it doesn’t require much legal knowledge to recognize the past is a good guide to what would have been amendments or revisions under the present proposals:

    bicameral to unicameral -amendment
    presidential to parliamentary -revision
    unitary to federal -revision

    the president could have simply proposed bicameral to unicameral through the people’s initiative, i don’t think it could have been questioned if the signature sheets had been copied from the 1940 plebiscite question! because any survey of that plebiscite would have clearly shown everyone understood it as an amendment proposal in 1940.

    with a new, unicameral national assembly, they could then have pursued the constituent assembly path to do everything else. and actually, this was in broad strokes, their plan, but their flopped in the drafting of the language.

    • mlq3 on October 26, 2006 at 9:06 pm
      Author

    jm, it might help you to consult the notes we drafted when i proposed pi as a method to have a province-by-province referendum on gma. you can read it here:

    http://www.quezon.ph/?p=875

    • cvj on October 26, 2006 at 9:22 pm

    mlq3, I read that curious passage from Bel Cunanan’s column that you quoted above as an admission on her part that a decision favorable to the PI would have caused ‘institutional damage’ and would have damned the Court for posterity. She sincerely believes that these are a small price to pay in return for securing the nation’s future. I think that accurately reflects the sentiments of the “end justifies the means” segment of the pro-Arroyo camp. They don’t mind being partners in crime with Arroyo (e.g. ‘Hello Garci’, bogus-PI) as long as it is for something that they believe is a noble cause i.e., saving the Philippines from the masa as a collective political force. To answer [email protected]:07, i believe her kind of thinking is normal for that group, and i suspect that they are legion, forming the bulk of Arroyo’s base.

    • DJB on October 26, 2006 at 9:59 pm

    MLQ3,
    Thanks for the exhaustive review of past distinctions. But there remains the problem of how distinctions can be made in the future without a big landmark case being necessary to do so. Suppose next year we start a people’s initiative on something that has no exact precedent. How can we, as earnest proponents who don’t want to violate the constitution, be reasonably certain that the subject matter of our initiative won’t be struck down as a revision?

    In contrast, Puno’s definition of revision as the production of an entirely new document, does not leave room for such doubt or uncertainty. Puno gives the initiative and creativity of the sovereign people the greatest possible freedom to bring about constitutional reform. Whereas the majority view almost certainly gives the Judiciary a power not intended by the Constitution: to declare some proposed change to be so substantial or far-reaching as to constitute a revision. This view reduces the degrees of the people’s liberty which I guess I don’t agree with philosophically.

    • mlq3 on October 26, 2006 at 10:42 pm
      Author

    djb,

    i think that’s why the court is there. put another way: discussions not only over the past year, but two decades and even century have revolved around these questions:

    1. should we have a strong, single, executive, or should executive power be dispersed or managed collectively? presidential vs. parliamentary.

    3. how should our nation be organized, as a centrally-directed whole or a loosely-organized or confederated alliance of parts? unitary vs. federal.

    those are the broad questions that tend toward revision.

    questions that tend toward amendments are:

    1. should be value legislative switfness and define legislative action in terms of what fosters a large governing party, or foster checks and balances and greater representation for smaller groups? unicameral vs. bicameral.
    2. is, as was first proposed in the late 1930s, six years too long for a bad president and too short for a good one? is it healthy to permit presidents the temptation to seek reelection?
    3. do we prefer one party, two party, or multiparty systems.

    so i guess it depends on the probability of certain questions -would you agree with me, for example, that a change in president’s term length is an amendment? and also, the question of run off elections?

    a grey area, for sure, for me, would be one proposal i’d consider: permitting members of the lower house to sit in the cabinet, but reserving the senate some sort of confirmation process. or, conversely, allowing senators to sit in the cabinet. or, the american model of having the vp be senate president.

    would substituting governors for congressmen to serve as a periodically-summoned but not permantly-constituted lower house be an amendment or revision?

    in the end, the tripartite system must maintain the ultimate possibility of review and rejection by the supreme court. no one, not any single branch of government, and not even the people sovereign as they may be, gets a blank check -unless they do so in a plebiscite or a revolution.

    • Chabeli on October 26, 2006 at 11:33 pm

    CVJ, thanks for your answer.

  3. Prof. Edwin, DJB and MLQ3,

    The main opinion posits the following:

    However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

    Now, “to be examined case-to-case” by who? Of course by Mr. Carpio and his robed brethren whose growing collective frame of mind is: “firmly embedded in the Constitution” is an “activist mandate” to the Philippine Supreme Court. In this regard, the Chief Justice Panganiban himself suggests “the courts (may now be) required to pass upon each and every act of the political branches of government.” This means that the amendatory power of the Court, subject to no other checks than the consciences of the justices, could be made to prevail over that of Congress (as in the Mining Law case), a constitutional convention or the sovereign people themselves (as in the case at bar).

    I find this putative “superpower’ of the Court (the so-called expanded certiorari jurisdiction) a clear and present threat to democracy more than the Lambino Group’s initiative.

    The invocation by Puno of Dean Sinco, one of the country’s foremost constitutionalists, was therefore perfectly apropos. He quoted Sinco: “the revision of a constitution, in its strict sense, refers to a consideration of the entire constitution and the procedure for effecting such change; while amendment refers only to particular provisions to be added to or to be altered in a constitution.”

    Proceeding basically from Sinco, Puno’s formula is both commonsensical and less prone to the reviewing itch by the Court:

    Hence, it is arguable that when the framers of the 1987 Constitution used the word “revision,” they had in mind the “rewriting of the whole Constitution,” or the “total overhaul of the Constitution.” Anything less is an “amendment” or just “a change of specific provisions only,” the intention being “not the change of the entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times.”

    The above formulation if applied to Garner’s actual partition of a constitution into: constitution of liberty, 2) constitution of government, and 3) constitution of sovereignty, would be an effective and compelling constraint upon runaway “judicial activism.” This only means that “amendments” that do not affect all three departments of the constitution are not “revisions” but “amendments.”

    I think historically this is how “amendments” in the Philippine Constitutional Law context has been understood. For example, the constitution of sovereignty under the 1935 constitution spoke only of “amendments” and yet it would be quite presumptuous to restrict the meaning of “amendments” to particular changes only rather than a re-writing of the entire document. The Marcos constitution retained the title of the Article XVI to “AMENDMENTS” although by the clear language of the body of the provisions “amendments” referred both to “amendment” or “revision.” Given the Spirit the 1986, it would be equally presumptuous to deny the 1987 Constitution its people-powered character through a watered down reading of people’s initiative.

    Ople, a non-lawyer, has this frame of mind:

    I think this is just the correct time in history when we should introduce an innovative mode of proposing amendments to the Constitution, vesting in the people and their organizations the right to formulate and propose their own amendments and revisions of the Constitution in a manner that will be binding upon the government.

    And Delagate Suarez correctly saw people’s initiative as a “third avenue that we are providing for the implementation of what is now popularly known as people’s power.”

    Lastly, the power of judicial review cannot be considered independently of the amending power, whether exercised by a constituent assembly, a constitutional convention or by direct action of the people. Hence, the more we constrict judicial review, on the one hand, and make it easier, on the other, for us – “We, the sovereign Filipino people” – or our delegates to change the constitution according to our own collective wisdom, the better it is for the deeper tides of democracy. The caveat however is that we have to always be on guard against the substitution of some else’s good and selfish interest for the common good.

    • jm on October 26, 2006 at 11:56 pm

    MLQIII, thanks again,

    Re institutionalizing people power,
    A couple of years back, we started a Citizens’ Initiative movement, one objective is to “ test the responsiveness of the Constitutional institutions and processes as channels of citizens’ involvement on national issues in times of national crises; so that same channels are likewise energized to mobilize the citizenry”, though petitions regard mostly regularly local issues, awareness of citizen empowerment is inculcated over time ( in time?).

    Considering developments since your effort at a people’s initiative, is an indirect initiative the better option now? Can One Voice be the PO and Quezon be the province, for example, for an indirect initiative? With the high national awareness for PI now, wouldn’t a timely victory in any one province inspire sympathetic solidarity movements in other provinces? Is a survey on Snap also timely? what is the best option at this point?

    • mlq3 on October 27, 2006 at 12:08 am
      Author

    jm, it depends which of the ways would produce the most politically-beneficial result.

    can you petition a congressman to do something? or does the law only permit you to recall your congressmen if he doesn’t do something the public likes?

    do you propose a constitutional amenment, or a law, or motion? if you looked at ther study we put together, the least threatening is a motion or resolution. the sangguniang lungsod or provincial board can approve or rject it; if approved, game over, you win, if rejected, you can say you will invole public’s right to have a plebiscite on the resolution. tables are set up, everyone told where to sign. as each person sighns, eachd signature validated in full public view. if percentages 3 and 12 are met, the the comec calls for a plebiscite.

    what motion could be made? ex: it is sense of this province that elections under the present system be held by may. or, it is the sense of this promise that an anmendment be made to the term, etc so as to make possible a snap election. i think it’s all there, it will require a feew trucks, volunteers in each baranggay, and possibly cash for food and emergencies.

  4. Abe,

    History does not bear out the conclusion of Puno that a change in the constitution of government is a mere amendment and for a revision, the constitution of government, sovereignty and liberty must be affected.

    And that inconsistency is precisely found in the 1987 Constitution. Puno himself admits that the 1987 Constitution is a revision of the 1973 Constitution. And yet, when one looks at the Bill of Rights which comprises the constitution of liberty, the 1973 provisions were fundamentally held intact in the 1987 charter. We are the recipients of the Bill of Rights amendment of the US Constitution and it was carried in the 1973 and maintained in the 1987 Constitution. Fundamentally therefore, there has been no substantive overhaul of the constitution of liberty.

    Thus, the existence of the 1987 Constitution clearly shows that even if one does not alter the constitution of either sovereignty or liberty, it can still be considered a revision. I maintain that Garner’s distinction of the 3 sets were meant merely as a tool for classification of constitutional provisions but cannot be used as basis for distinguishing whether one is an amendment or a revision.

    Even Sinco’s definition of what is revision and amendment is qualified with the words “strictly speaking”, thus conceding the hue of possibility that an overhaul of a portion of a constitution can still be considered a revision. Moreover, if I am not mistaken, as pointed out by Fr. Bernas in his book, the Sinco definition must be examined in the light of the 1987 provision on people’s initiative which is clearly a derogation of the role of the Legislative Department to enact laws and which was an unknown specie during the time of Dean Sinco.

    Finally, I find no comfort in Puno’s definition of revision as nothing short of an overhaul of the Constitution for the simple reason that our recent history on drafting several constitutions does not bear him out.

    • jm on October 27, 2006 at 12:34 am

    mlq3, thanks

    No short cut undertaking an honest-to-goodness PI. Education on Basics of ‘Citizenhood’ is pre-requisite. Getting volunteers to learn about PI was very difficult.

  5. Prof. Edwin,

    I don’t have a copy of the ‘87 Constitution in front of me (and I’m just about to hit the road now) but I’m pretty sure the constitution of liberty abolished the death penalty except for “heinous crimes” as may be defined by law. Other fundamental changes in the Bill of Rights are: the right to counsel cannot be waived unless in writing and in the presence of counsel; right against solitary confinement or against confinement in secret detention places; and right to adequate legal assistance to indigent litigants. I don’t believe these are minor rights.

    I’m not sure what you meant by: “the Sinco definition must be examined in the light of the 1987 provision on people’s initiative which is clearly a derogation of the role of the Legislative Department to enact laws and which was an unknown specie during the time of Dean Sinco.”

    Anyway, the very first section of the Article on Legislative Department expressly provides for a legislative power-sharing mechanism between the Legislature and the people via initiative and referendum, a systemic change of the purely representative system. I’m not sure if this is responsive to your question.

    • UP student on October 27, 2006 at 1:18 am

    NO SHORTCUTS : P100 Million needed.

    A People’s Initiative vote-gathering process will require the following:
    1. Determine the Proposition
    — 2 months, 10 people
    — cost – free, but the dinner- or weekend meetings will rotate across 3 host-sites
    2. Print the signature forms (P1.1Million to print 1.5 million pages to capture 8 million signatures at 10 signatures per page (with wastage))
    3. Gatherers needed : 12,000 (each ‘walker’ gets 700-plus signatures)
    4. Team leads : 1,000 (1 lead per 12 ‘walkers’)
    5. Super-leaders : 100 (1 superlead per 10 team leads)

    If a walker gets 150 signatures a week (some get 50, others get 250), walkers are needed for 5 or 6 weeks.

    At an estimated cost of P6,000 to support a walker for 6 weeks (transport, food, emergency-whatever), the 12,000 ‘walkers’ will cost P72 Million.

    Estimating to need the team lead for 12 weeks (to count/collate/organize) : 1,000 leads x 2 x P10,000 = P20M

    Radio/Print Ads : P10 Million

    The people’s initiative will need Mr-Deep-Pockets to put down in excess of P100 Million.

  6. Extremely enlightening comments all… thank you.

    • Amadeo Dela Cruz on October 27, 2006 at 3:15 am

    Sangfroid – coolness and composure, especially in trying circumstances

    • UP student on October 27, 2006 at 3:47 am

    Amadeo… Pittsburgh over the weekend was great (attended a wedding). Driving on the Pennsylvania turnpike is stressful (this road is too old — can use extra lanes, too many winding turns designed for 55 mph while the traffic is clocking at 75mph and higher) but the leaves are great and brisk autumn temperatures are cool. Won’t make it to New Jersey, though. Am now in metro-WashDC area.

    • Amadeo Dela Cruz on October 27, 2006 at 3:56 am

    That’s the charm of I-76. Grand Prix style lanes with a view.

  7. Jove,

    When I interviewed PGMA in Brussels, I thought she was very cool until I aked her to comment on a question by a member of the Belgian Federal Parliament concerning a jailed RP congressman. I thought I detected a flash of annoyance, nay, it was real irritation – her sangfroid until then was spectacular, she didn’t even flinch when I asked her about the spate of judicial killings which was on top of the agenda for discussion with officials here but when I repeated to her what the Belgian MP had said, she clearly did not like it. She lost a little sangroid there.

    (Btw, I love reading your stories, keep ’em coming.)

    • DJB on October 27, 2006 at 5:21 am

    Ed,
    I guess I’m not satisfied with the notion that a proposed change “could still be considered a revision” for unspecifiable reasons. It seems to withhold the “presumption of regularity” in the undertaking of people’s initiatives by guaranteeing that judicial review will be necessary to certify that something is NOT a revision and therefore barred ipso facto. In other words, suppose you and I come up with a proposed change. We undertake all things the Court said is necessary: we “show to the people” our proposed amendment; they sign right on the copies of the proposal; we collect the required numbers of signatures and “the people” show in ways believeable to the readers of this site real and genuine support for our amendment; in other words we comply with all requirements on form and substance, but at the very end of it, here comes some court declaring it all a “revision”. Such a declaration is not a matter of form OR substance as it is a mere arbitrary categorization based on someone’s opinion of the extent to which any of society’s premises, sovereignty, liberty, etc. will be affected by our proposed change. It is not clear in other words that the people’s initiative will ever be taken up by anyone as a mode of chacha because there is no way to tell BEFORE entering into the effort whether it IS a revision or an amendment. Or else p.i. will only ever attract the trivial amendments, which will be a disincentive because of the huge effort required. Thus, people’s initiative HAS been rendered lifeless.

    As you say, even the overhaul of a small part “could still be considered a revision”. That is an arbitrariness that will kill the people’s initiative mode.

    CHALLENGE TO EVERYONE: Please give me 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.

    • DJB on October 27, 2006 at 5:40 am

    DJB’s definitions:

    An AMENDMENT is any change TO THE Constitution.
    A REVISION is any change OF Constitution.

    “The people” will always know the difference and ought not be treated like sheep or children by a bunch of unelected intellectuals. The spring cannot rise above the source!

  8. DJB,

    It might interest you to know that your definitions seem to be very similar in the French language (although in French.)

    Amendment: chages in an article of the law
    Revision: complete alteration of a Constitutional law

  9. DJB,

    It might interest you to know that your definitions seem to be very similar in the French language (although in French.)

    Amendment: changes in an article of the law
    Revision: complete alteration of a Constitutional law

    • DJB on October 27, 2006 at 6:40 am

    Interessant, Mssr Massart.

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  1. […] What does sangfroid mean, and why did Manolo use it in relation to yesterday’s entry about the President’s mood after the Supreme Court decision on the people’s initiative petition? […]

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