Tuesday, September 26, 2006

The Supreme Court Tackles Charter Change

The 1987 Philippine Constitution's Article XVII (Amendments and Revisions) contains 4 Sections -- all of them a source of boiling controversies in the present hothouse atmosphere of impending Charter Change.
Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.
Caveat: By requiring "a vote of three-fourths of all its Members" in order for the Congress to propose amendments or revisions, Section 1 seems to ignore the bicameral structure of the Congress, where indeed, even as simple a law as changing the name of a street requires the separate approval of the Senate and the House. The analogous provision in the United States Constitution (Article V - Amendments) reads,
US Constitution: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments..."
The matter has taken on some importance because Arroyo allies under Jose de Venecia claims to have the required three fourths, all from the Lower House, and threatens to convene a constituent assembly or CON-ASS with or without Senate participation. Meanwhile, the Constitutional Convention route to charter change has been supported by the Senate and civil society groups, notably, the Roman Catholic Church. Note that Section 1 empowers both Congress and any Convention to undertake either amendments or revisions, but defines neither term, an omission that becomes critical in Section 2...
Section 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.

The Congress shall provide for the implementation of the exercise of this right.
ORAL ARGUMENTS at the Supreme Court are scheduled for today on the Sigaw ng Bayan petition for People's Initiative to revise the Constitution and change the form of government from Presidential-Bicameral to Parliamentary-Unicameral. In the landmark 1997 precedent, Santiago vs. Comelec the High Court adjudicated a controversy over the first attempt at people's initiative. There, a slim majorityJustices of the Supreme Court, concurred with Chief Justice Hilario G. Davide, Jr. 8 to 6 (with one abstention) to bar the attempt of PIRMA because the obvious infirmity that proponents had not met the explicit requirement of the Constitution for 12% of the registered voters to back their proposed amendment before it can be put to a plebiscite for ratification. Actually the Court was unanimous on that conclusion and reason, but the Decision went further.

Eight of the fifteen sitting Justices concurred with Chief Justice Hilario Davide whose ponencia concluded:
CONCLUSION (Santiago vs. Comelec 1997)

This petition must then be granted, and 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.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength.Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

WHEREFORE,judgment is hreby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED against private respondents.

Resolution on the matter of contempt is hereby reserved.


Narvasa, C.J.,Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres Jr., JJ., concur.

Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.

Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno, Francisco and Panganiban.

Puno, Vitug, Francisco and Panganiban, JJ., has separate opinions.

With the abstention of Padilla, the vote in 1997 was indeed close at 8 to 6, and today, only two of the Justices from the 1997 Court are still around: Puno and Panganiban, whose separate opinions are worth reviewing along with those of Vitug and Francisco. All those who dissented agreed with the majority on the insufficiency of the Pirma initiative because it did not have the required 12%. But they did not agree that RA6735 was so inadequate as to be declared infirm for the purpose of implementing the Constitutionally sanctioned right of the people to initiate Charte changes direclty.

The Court had ruled as "INADEQUATE" Republic Act. 6735, the Referendum and Initiative Act which was crafted by then Congressman Raul S. Roco precisely to implement the Constitutional provision on people's initiative. Based on this, the decision consequently voided portions of the Comelec's implementing rules and regulations. Without these additional rulings in Santiago vs. Comelec, there would have been nothing to prevent proponent PIRMA, Delfin and their patrons from perfecting their initiative by eventually getting the required 12% of voters without the Comelec's help, and refiling their petition with Comelec to schedule a Plebiscite. That possibility was effectively prevented because Congress had to pass a new enabling law that would again be subject to judicial review for "sufficiency" and then Comelec would have to draft new IRRs based on it.

This particular turn in the Davide ponencia killed two birds with one stone. It obviously put a stop to Pirma's initiative. It also made it unnecessary for the Court to tackle the truly problematic issue of what constitutes a REVISION and what an AMENDMENT when it comes to changing the Constitution.

In retrospect, the 1997 Pirma Petition for People's Initiative was doomed to failure. At the time of the "initiatory Delfin petition" the proponents simply did not have the required number of signatures. All six of those who dissented CONCURRED with the majority on this point. There was actually unanimous agreement in the Court that the proponents of did not meet the explicit requirements of the 1987 Constitution for a People's Initiative to amend the Constitution. It is most unfortunate that the 1997 Supreme Court Decision Santiago vs. Comelec decided not to tackle the difference between "amendment" and "revision" of the Constitution.
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.
That task is now left to the present Court.

The main sticking points in Art XVII Sec. 2 are these:

(1) People's initiative is limited to AMENDMENTS TO, and cannot undertake REVISIONS OF the Constitution;

Caveat: In the American jurisdiction, the US Constitution has never been REVISED although there has been a rich history of some 27 AMENDMENTS. But there appear to have been over 200 State Constitutions adopted over the centuries of democratic practice. All kinds of systems, theories and practices are to be observed in this area, but in general it seems Americans consider a REVISION to occur when the entire Consitution is REPLACED by a new one, generally as the result of constitutional conventions which are often convened automatically at periodic intervals without the special action of elected legislatures to consider charter change. But that has only ever occured at the State levels. Although the US Constitution has by this definition NEVER been revised, can we say the same thing for the Philippine Consitution. By my count there have been FOUR constitutions: Malolos (1898-99); Commonwealth (1935); Marcos(1972); and the Freedom Constitution (1987). The terminology used by some is to say that a REVISION of the Constitution results in a new VERSION of the Charter. Under this rubric, it would not seem that the Sigaw ng Bayan proposal requires the adoption of a whole new Constitution and is therefore in the nature of AMENDMENT.

(2) To have a plebiscite, 12% of voters must support the amendment with 3% of each district represented;

Nota bene: NOT having fulfilled this requirement by the time the DELFIN PETITION was filed with Comelec in December 1996 was the fatal flaw in it. The Supreme Court was UNANIMOUS on this point in 1997, as all four Separate Concurring and Dissenting Opinions show. Puno, Vitug, Francisco and Panganiban.

(3) There must be an enabling law.

The Majority in 1997 decided 8-6 that RA 6735 (Roco's Referendum and Initiative Law) was INADEQUATE. But in his Separate Opinion, Justice Vitug did not think it was right to rule on the SUFFICIENCY of RA6735 in the context of the unperfected but perfectible PIRMA initiative.
VITUG: Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.
Chief Justice Artemio Panganiban's separate opinion has already been discussed at Philippine Commentary where the money quote is:
PANGANIBAN: 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.

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