Wednesday, October 25, 2006

Revision or Amendment? Revision!

Having already determined that the Initiative Petition of Sigaw ng Bayan/ULAP to be insufficient in form for not "showing to the people before they sign" the full and complete text of the proposed amendments, the Supreme Court did not actually have to rule on this matter of whether the proposed changes are amendments or revisions of the charter. In its previous ruling, Santiago v. Comelec, the Court indeed avoided the issue altogehter, as moot and academic, since the Pirma petition was already found fatally infirm for not collecting the required number of signatures as required by the Constitution. But the Supreme Court is to be congratulated this time for NOT doing the moot-and-academic rope-a-dope dance on the issue of whether the proposed change from a Bicameral Presidential System to a Unicameral Parliamentary system is a REVISION OF or an AMENDMENT TO the Constitution. After reviewing the broad experience and established jurisprudence in the United States regarding people's initiative and after applying both "quantitative" and "qualitative" tests on the proposed changes to the Constitution, the High Court ruled unequivocally that the proposed changes amount to a revision of the Constitution:
Lambino v. Comelec: The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives...By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment.
Thus, the proposed changes to the Constitution cannot be undertaken by the method of People's Initiative, because its substance is that of a revision, which is specifically reserved for Constitutional Conventions or the Congress.

LOGROLLING Aside from ruling that the substance of the proposed charter changes amounts to a REVISION of the charter, the Court also found another substantial ground for denying the Sigaw Petition outright...
The Lambino Group’s initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a “surplusage” and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group’s initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition.
In other words, the attempt to sneak in a provision that would then authorize the newly created unicameral Parliament to undertake full-fledged revisions of the constitution, reveals the real understanding of the proponents of their project and its true magnitude, and a circumvention of the prohibition against revisions by people's initiative.

CAVEATS:

In a sense, the discussion in Lambino v. Comelec on the question of revision or amendment was MOOT and ACADEMIC, if one takes seriously the ponente's own declaration that the plaintiff's case was devoid of merit solely on the insufficiencies in form of the "initiative petition." That is exactly what happened in earlier ruling Santiago v. Comelec after they found Pirma's petition did not comply with the 12% requirement.

What I mean by "moot and academic" in this case is that the Conclusion of the Ruling--to deny the Lambino petition for certiorari and mandamus--would not at all have been changed even if the Majority had ruled on the question of "revision or amendment" differently. One could Cut-and-Paste the section on the question of revision or amendment in the Dissenting Opinion of Justice Reynato S. Puno into Justice Carpio's ponencia yet, you wouldn't have to change anything else in the Decision!

It would have been very different if the Court had ignored the various requirements on form (which turn out to be substantial) and ruled against the Sigaw petition ONLY on the basis that it constitutes a revision. That would have made the ruling definitive on the question at hand.

The reason I bring this up has to do with certain considerations that arose in the Comment Thread of Manolo Quezon's blog, which got me to thinking about the question of revision and amendment again in a fundamental and philosophical way. I came to a very definite position, culled from some of the comments, including my own:
Basic 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!

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

Consider what happens in a Constitutional Convention or 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.

“Insufficient in form” may seem like the simplest infirmity to avoid. It would seem to be a mere FORMality. But as controversies such as these are resolved, we learn that the hardest things to see are those that are right in front of our face.

That a complete copy of the proposed amendment(s) be “shown to the people” before they sign the initiative petition IS such a formality, but its absence points to something more than carelessness. It points to the fact that the whole Unicameral Parliamentary idea is such a big complex thing with all sorts of legal and political ramifications that they COULDN’T even provide a complete copy of the thing in a finished and final form. They were merely asking for LICENSE to dick around with the Constitution and make a Parliament and all that.

So even a formal technicality or a technical formality can be an important requirement that enforces SUBSTANTIAL aspects, such as having a complete amendment ready to go to be signed without further changes.

Why did 7 not agree with such a slam dunk? Well, I surely didn’t see it as being so decisive when I first thought or read about this objection to PI a long time ago. Was it so obvious to everybody? Most were focussed on the evil motives of the backers of the petition.

However, it is entirely possible those justices are jockeying for Chief Justice. As you know, after panganiban retires, there is the possibility of a reversal.

But that would be an even longer shot than this one.

1 comment:

baycas said...

djb,

i heard this on radio this morning…lawyer allan paguia posits a reason why the amendment-revision dilemma is not yet over even after j. carpio delineated the difference of amending and revising the charter. although it breaks his heart to cite the Administrative Code of 1987 as it may help lambino in his argument, he nevertheless said it in the interest of fair play.

he explained that the Code, in its Book II (Distribution of Powers of Government), Chapter 2 (Legislative Power), Section 10 (Validity of Constitutional Amendments), No. 2, somehow made NO distinction between amendment and revision in the matter of a PI:

(2) Any amendment to or revision of the Constitution directly proposed by the people through initiative shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days (60) nor later than ninety days (90) after the certification by the Commission on Elections of the sufficiency of the petition.

he thinks that j. carpio should have thoroughly revisited or historically cited this Code in order to once and for all bury the amendment-revision dilemma.

cong. boying remulla however countered that, like in camilo sabio’s use of the outdated EO no. 1 as an excuse not to attend Senate hearings, the present constitution has already superseded or impliedly repealed such Act (the Administrative Code) because of inconsistency.

all the same, allan insisted that it should have been cited by j. carpio in order to show clearly if such inconsistency can be reconcilable or irreconcilable to finally put to rest this portion of the argument.