Friday, September 8, 2006

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.

8 comments:

Dominique said...

Hi, Dean: I can't think of any arguments against the principle on which Panganiban bases his dissent, but for the life of me, the mechanics of Sigaw ng Bayan just seem so wrong.

Lord Dracula said...

I agree with you that in between Con-Ass and PI, the SC will probably side with PI.

Now with regards to amendments and revisions - the US Constitution was amended several times, but there was never a fundamental change in the form of government nor the way the US is governed (except that it safeguarded the rights of its citizens).

The words REVISE and AMEND are synonyms. I like these definitions:

Amend - To prepare a new version of.

Revise - To prepare a new version of.

Those two are based on Answers.com's take from the thesaurus provided by Houghton Mifflin Company.

The distinction, for me, is this:

If the changes made to the Constitution will greatly affect the way things are done or the country is governed, these are REVISIONS.

If the changes made are corrective in nature, additions to the provisions, and in the whole will not be drastic in nature, these are AMENDMENTS.

And hopefully the SC will see it that way too. The Sigaw PI should never see the light of day. It is never the initiative of the people.

Rizalist said...

Dom,
What is perhaps more impt than anything else is that today it is Art Panganiban at the helm of the Supreme Court, not Hilario Davide. But if you do read Davide's ponencia you might agree with me that he makes several powerful arguments for why RA 6735 is indeed an INADEQUATE enabling law for the exercise of the right guaranteed by the Constitution, which I note does say Congress must provide for such exercise. For example he shows that RA6735 really only applies to people's initiative on national and local laws, but not amendments to the Constitution.

Panganiban and Davide in 1997 did agree on one thing: that the Delfin Petition was DOA at Comelec because Pirma did not have the Constitutionally reqd 12 percent of the registered voters all signed up. The difference today is that Sigaw DOES have the 12% and more. Or so it claims.

Panganiban can at least stay consistent with this "Concurring and Dissenting Opinion" in deciding the coming Sigaw Vs. Comelec case!

Rizalist said...

Lord Dracula,
I would be interested in a more PRECISE definition of both terms, REVISION and AMENDMENT that clearly makes the distinction. The way you have put it though, I'm afraid I cannot imagine any change to the Constitution that would not "greatly affect the way things are done or the country is governed."

Even changes that are merely "corrective in nature" or "additions to the provisions" could have great effects, otherwise the change might not be worth doing a people's initiative for.

Lord Dracula said...

My comment got lost in a power fluctuation... dang.

I reread Article 17. There is really no difference. None at all. That offending clause, the first paragraph of Section 4, should have not been written. "Any amendment, or revision,..."

Maybe what I should have said is that, when you want to change an entire article, or several entire articles (as what Sigaw PI intends to do), that is a revision. I came to this idea when I read the amendments to the US Constitution. The amendments were either additions, deletions of sections, changed several sections of an article. There was never an amendment that would have changed an entire article of the US Constitution.

And the SC will probably say that the Sigaw PI is an amendment and a revision, and there is no difference. That's my read on the situation.

HILLBLOGGER said...

Dean,

I've been asked to explain the PI for charter change, the proposed provisions for revision or change, the reason why there's such a virulent opposition to the initiative and other pertinent matters related to issue to a group of OFWs in France by the co-chairman of the federation of Fil associations there but declined.

I must confess that my knowledge of the issues surrounding PI is not up to speed.

I am glad you have posted (and others here too) explanations which could help me in collating inputs which I could just send to my friend by e-mail but after but my problem now is how to simplify them in such a way that the language will be easily understandable in Tagalog of Pilipino (which I've been asked to use.)

Is there a sort of a "10-pointer" or simplified version available for publication in their bulletin?That would be just excellent and would go a long way in helping our kababayans understand the issues.

Thank you very much.

Juan said...

Justice Panganiban's arguments are weak, illogical and irrational.

"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."

Now, isn't that itself "all too sweeping and all too extremist"?

"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."

Those are terrible non-sequiturs.

But the sense of his concluding statement sounds more like One Voice's STOP -- Sa Tamang Oras at Paraan -- Chacha and against Singaw's Pekeng Initiative!!!

Mababaw at baluktot ang pangangatwiran ni Justice Panganiban. Nasa panganib ang Constitution.

Atty-at-Work said...

Juan, sang-ayon ako sayo na nasa panganib ang Constitution. Nevertheless, I couldn't agree that CJ Panganiban's arguments are "weak, illogical and irrational". His arguments, together with that of Justice Puno, make sense...it's just that I believe the majority opinion makes more sense.