Panganiban's Dissenting Opinion on People's Initiative

In a Supreme Court Decision penned by then Chief Justice Hilario G. Davide Jr. Santiago Vs. Comelec (G.R. No. 127325. March 19, 1997) an 8-6 majority struck down the first attempt to amend the 1987 Constitution by People's Initiative, when it found that R.A. 6735 (Raul Roco's 1997 Law on Initiative and Referendum) was "inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation." It concluded that "the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system."

One important issue that is disappointingly skirted in Davide's ponencia of Santiago vs. Comelec is that of the distinction between "AMENDMENT" and "REVISION" of the Constitution. Here is the last line of the Decision just before the disposative Conclusion:

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of the elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.

The task of making that distinction and reconsidering people's initiative on the Constitution, will fall to the present Supreme Court, with at least eleven new Justices appointed by the current tenant of Malacanang Palace. More's the ominous atmosphere over the observation that of the Justices left over from the 1997 Court that decided Santiago vs. Comelec, only two remain, both of whom DISSENTED from the Majority, namely Justices Reynato Puno and now Chief Justice Artemio Panganiban, whose separate concurring and dissenting opinion is invaluable in forecasting the fate of the second attempt at People's Initiative, that of Sigaw ng Bayan in 2006. It is worth quoting at length:

PANGANIBAN, J., separate concurring and dissenting opinion in Santiago v. Comelec (1997)

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through initiative." There is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned."

(3) Comelec Resolution No. 2300, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void."

I concur with first item above. Until and unless an initiatory petition can show the required number of signitures -- in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district -- no public funds, may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holding espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

"SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter."

With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relive him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.

Panganiban essentially sides with R.A. 6735's author, the former Senator Raul S. Roco, that the law was "adequate" but that Delfin/Pirma had not actually collected the requisite number of signatures in order to properly initiate the process. But this is an infirmity that Sigaw ng Bayan made sure its case would not suffer from. And as I said, Davide decided not to address the issue of defining REVISION and AMENDMENT, calling the task "academic". But not moot.

Panganiban may yet have HIS defining moment on this.