Bernas: Jointly or Separately

Since we have been debating this matter ourselves here at Philippine Commentary, most lately in this post, I think it is appropriate to now reproduce Fr. Joaquin Bernas' PDI column from yesterday in which he summarizes his point of view and the various arguments regarding charter change under the 1987 Constitution. I must say, the quality of argumentation on this blog from lawyers and nonlawyers alike stands toe-to-toe and head-to-head intellectually with the Founding Father. I'm proud of the work everyone is doing on this all important issue. But now...Fr, Bernas on voting jointly or separately: (I reserve my own caveats for the comment thread)

One of the central issues in the current debate on Charter change is the role that the Senate should play. At the moment it is fairly certain that the Senate is not yet willing to join Charter change. But the likelihood is that it will join after the elections of 2010. When it does, how will the voting be—jointly or separately?

That the Senate should be part of the process is beyond question. You can probably count with the fingers of one hand the number of politicians who will question that proposition. As to the manner of voting, however, there is ample debate. I have written on the subject in the past, but it may not be unhelpful to rehash my views on the subject.

The constitutional text is not very helpful. It simply says: “Any amendment or revision of this Constitution may be proposed by the Congress, upon a vote of three-fourths of all its members . . .”

Indeed, there are provisions which specify when the two houses vote separately, namely when breaking a tie between two presidential candidates (VII,4), when confirming the president’s nomination of a vice president to fill a vacancy (VII,9), when declaring a president to be incapacitated (VII,10), and when Congress declares the existence of a state of war (VI,23). From these it might be concluded that when the Constitution wants separate voting it so indicates unequivocally.

There is, however, also a provision which requires Congress to vote jointly, namely when Congress wants to revoke a declaration of martial law or a suspension of the privilege of the writ of habeas corpus (VII,18). From this, it may, with equal logic, be also concluded that when the Constitution wants the two chambers to vote jointly, it so indicates unequivocally. One might also add that voting jointly is so unique for a bicameral body that it is allowed only in one specific instance.

My conclusion from these two separate set of provisions is that the solution to the textual ambiguity cannot be found in any of the separate provisions of the Constitution. These separate provisions do not illumine but only heighten the ambiguity. Thus we are forced to look for clarification and help from elsewhere.

Are there other aids to constitutional interpretation when faced with textual ambiguity? There are. I suggest an exploration of these aids. And the final conclusion may depend on the modality of interpretation that is chosen. Briefly, what are the possible approaches?

One approach used for dealing with an unclear text is historical. It involves an analysis of the intention of the framers of the Constitution and the circumstances of its ratification.

Another is the structural approach. This involves drawing inferences from the architecture of the power relationships in the constitutional arrangement. Structure is what the text shows but does not say. An easy example is “separation of powers.” The text does not say it, but the actual distribution of powers to three departments shows it.

And, of course, there is the doctrinal approach which simply follows earlier judicial decisions. This is the doctrine of stare decisis.

Still another is the ethical approach which seeks to interpret the Filipino “ideals and aspirations” embedded in the constitutional document.

Finally, one might use the prudential approach by weighing and comparing the costs and benefits that might be found in conflicting rules.

I suggest that a combination of the historical and structural approach will be helpful.

Historically, the current provision on amendments and revision was debated on and approved on July 7 and 8, 1986. The prevailing mood then among the members of the Constitutional Commission looked like a preference for a unicameral legislative body. In fact the draft at hand provided for unicameralism. For that reason, the amendatory provision of the 1973 Constitution for a unicameral Batasang Pambansa was copied. On July 28, 1986, however, after much debate, the commission, by a very close vote of 23-22, decided to go bicameral. The commission, concerned as it was with other issues, did not look back. Now we are left with the necessity of trying to construe the meaning of a constitutional provision originally designed for a unicameral legislature but now being placed at the service of a bicameral legislature.

How should a bicameral Congress use it? Congress should use it the way bicameral Congresses are expected to act.

When we look at the reasons the framers of the Constitution went bicameral, we can easily see that the arguments for bicameralism were the traditional ones which say that (1) an upper house is a body that looks at problems from the national perspective and thus serves as a check on the parochial tendency of a body elected by districts, (2) bicameralism allows for a more careful study of legislation, and (3) bicameralism is less vulnerable to attempts of the executive to control the legislature.

I would focus on the second and third arguments. First, bicameralism allows for a more careful study of legislation. Simply put, two heads can be better than one. And since the Constitution is the supreme law of the land, any change done through a bicameral body must be accomplished through the most thorough decision-making process, namely a two-step process.

Second, bicameralism is less vulnerable to executive pressure. In the current context, the prevailing suspicion is that President Gloria Macapagal-Arroyo is pushing her own agenda. True or not, the suspected agenda need purification.

Am I therefore saying that a unicameral body is incapable of a thorough study? I am not saying that. In fact, during the debates of the 1986 Constitutional Commission I voted for a unicameral body. (However, in retrospect and looking at the current House of Representatives, I am glad my side then lost!) What I am saying is that, since Congress is bicameral, it must act as bicameral.

Dancing jailbirds

Americans have been amused by our Cebu jailbirds dancing to Thriller and Heal the World as a tribute to the King of Pop. Now even Anderson Cooper of CNN found it amusing and had a laugh. Perhaps the Yanks can be more amused if instead of agnozing what to do with Gitmo, they step back a while and let the inmates dance Thriller. The jaded would even agree that this is punishment that fits the crime since Guantanamo is really a surreal place on earth.

Since penal theory says that these punishments are meant to reform, perhaps Obama and the US Congress can get tips from the warden of the Cebu maximum security prison. According to him, the inmates behaviour had improved. Cebu tourism now sells the dance routine performed every month. It seems to be a sort of touristy trap 'cultural show" we are dished out when we are on the complimentary hotel city tour!

And old Raul Castro now holding on to a silly and outdated socialism may find Gitmo attracting Euro and USD spending tourists. Who knows the Cubans may boost their tourism revenues and turn on the water back to Guantanamo.

And who is the Thriller? Not Wacko Jacko but Wacko Bin Laden!

Where is Public Accountability?

The head of Britain's Conservative Party, David Cameron, announced last June 25 that more than 100 of its parliament members will repay the UK government a total of 250,000 pounds, or more than $400,000, representing unjustified expense claims. This came in the wake of the expense scandal in the British House of Commons where several members of parliament (MPs), both from the leading Conservative and Labour parties, charged bogus or personal expenses against the government. After UK's Daily Telegraph exposed the scandal in May this year, several MPs, including House of Commons Speaker Michael Martin, resigned in shame.

Just recently this week in the US, South Carolina Governor Mark Sanford apologized in a press conference for having an affair with a woman in Buenos Aires, Argentina. He also announced his resignation as head of the Republican Party governor's association, and it would probably be just a matter of time before he eventually resigns as governor with the mounting calls for his resignation. This came on the heels of Nevada Senator John Ensign's similar public apology last week for his extramarital affairs with a campaign staffer.

Governor Sanford is not the first governor to publicly admit to wrongdoing in recent memory involving US politics. Eliot Spitzer, a man who was touted as a possible presidential contender like Sanford, did the same last year and resigned as New York governor after an FBI investigation revealed that he patronized a prostitution service. Of course, Governor Rod Blagojevich of Illinois was an exception by adamantly denying wrongdoing even after Justice Department investigators caught him on tape attempting to sell the Illinois Senate seat vacated by President Barack Obama. He tenaciously clung to the governorship until a unanimous Illinois Senate voted him out of office in an impeachment trial. There is an interesting parallel here with President Gloria Macapagal-Arroyo.

While sex scandals or extramarital affairs involving government officials in the Philippines are not as popular - or, dare I say it, not as exposed and a cause for official resignations (heck, we even elected a known womanizer as president!) - we surely are not in shortage of corruption scandals. On the contrary we abound with them from the lowest to the highest levels of government. But do we ever see these somber press conferences where the erring public officials admit, apologize and announce their resignations from office? Well you know the answer to that. What we see are thick hide public officials who invariably blurt the trite and tested lines "prove your accusations in court," "I serve at the pleasure of the president," "I will only resign when the president tells me to," "this is politically motivated," etc.

Resignation as a face-saving measure or dictate of delicadeza - that uniquely named Filipino virtue of acting with a sense of propriety - is an unpopular concept among our public officials who have been exposed with involvement in corruption or other malfeasances. And even when a few resorts to it, it is not out of a sense of delicadeza but to take the heat away from them, while boldly claiming their innocence. When Benjamin Abalos, Sr. resigned as COMELEC Chairman amid allegations of bribery in connection with the NBN-ZTE scandal, he never admitted to any wrongdoing; on the contrary he insisted on his innocence and vowed to clear his name. The same is true with COMELEC Commissioner Virgilio Garcilliano who resigned as a result of the so-called "Hello Garci" scandal.

What is even more distressing is that scandal-besieged public officials or figures use the notoriety they have generated from these controversies in running for public office. And some of them even get elected!

When in 2005 the "Hello Garci" tapes surfaced revealing private conversations between GMA and COMELEC Commissioner Garcilliano regarding the status of the former's votes in the just then concluded 2004 presidential elections, not a few entertained the possibility of GMA tendering her resignation or being removed from office by impeachment for what was seen as evidence of vote-rigging. But many were disappointed. Instead, GMA gave a televised address and in somber tone apologized to the people. She, in skillful spinning, downplayed the gravity of what she did by claiming it was merely a lapse in judgment and was only trying to ensure the protection of her votes as an anxious candidate since it was taking long for the results to come out. And the impeachment complaint against her did not fly.

More than three decades ago US President Richard Nixon resigned as president after his tape recordings inside the White House - revealing his involvement to cover up the break-in at the Democratic Party's headquarters at Watergate - were made public. Nixon faced the certainty of impeachment and removal from office, so he decided to save face by resigning. Although equally guilty of an egregious conduct, GMA was not similarly disposed as Nixon because unlike him, she did not face the certainty of impeachment, let alone removal from office. Her supporters and allies in the House of Representatives saw to this. Never mind the public opinion - the same care-free attitude that these representatives now brazenly display as regards HR 1109.

So what accounts for this alarming and despicable lack of public accountability among our public officials? We surely are not timid people who just allow official wrongdoing to go on unchecked. Our history clearly illustrates this. The continuing public outrage against HR 1109 speaks well of this. But still the HR 1109 congressmen are adamant in pursuing Cha-cha; they are unfazed by and continue to defy public opinion. The bar of public opinion, it seems, is no longer a controlling gauge of our politicians' conduct that they have become so insensitive of the public pulse. Where has accountability gone?

A Community Left Out in the Cold

By ATTY. RODEL E. RODIS

[Philippine Commentary warmly welcomes our new Contributing Author. Rodel Rodis is an outstanding leader of the Filipino American community, one of its highest elected officials as member and President of the SF City School Board and through many decades of legal and social service.]

SAN FRANCISCO - Greg Macabenta, Baylan Megino and I answered the call of Rudy Asercion, Executive Director of the West Bay Pilipino Multi-Service Center, to attend the public hearing of the San Francisco Board of Supervisors on June 22 to speak out in favor of providing city funding to West Bay Pilipino Multi-Service Center, the community non-profit agency that provided services last year to 3500 Filipino families in the South of Market (SOMA) district of San Francisco.

Rudy had sent out an SOS email expressing outrage that the Filipino community had been totally excluded from the $9-M of city funds that would be allocated to various community agencies throughout San Francisco. Every ethnic community in every section of the city would receive their share of city funds, all that is, except for the Filipino community which was completely shut out.

The public hearing would begin at 5 p.m. and Rudy lined up early to get us speaking cards so that we could express our support for the inclusion of the Filipino community in the allocation of community funds. When Greg, Baylan and I arrived at the second floor of City Hall, Rudy was there with our speaking cards informing us that “we’re no. 4”. We were elated to hear that we would be among the first to speak as we saw over 400 people lined up all over City hall carrying their own speaking cards ready to advocate for funding their various community programs.

After waiting in line outside the chambers of the Board of Supervisors for about an hour, we learned to our frustration that before our “group 4” could speak, groups A to Z and 1 to 3 would speak first. Wow! Greg, publisher of Filipinas magazine, still had the July issue of his magazine to “put to bed” that evening so he couldn’t wait hours to speak. He asked Rudy’s permission to leave which Rudy gave, grateful that Greg had shown up to express his support.

All the ethnic groups from every part of the city were represented among those waiting to make their pitch for funding to the Supervisors. We were not the only Filipinos there as idealistic young Pinoy students from San Francisco State were poised to speak on behalf of the Veterans Equity Center (VEC), and young Pinays from the Asian Women’s Shelter (AWS) were also there to speak of the high incidence of domestic violence in the Filipino community. Representatives of a Filipino workers group providing support to exploited Filipino caregivers were there as well to make their case for funding.

Every one would be allotted one minute to speak and then the bell would ring which would alert the speaker to end his or her speech. While everyone more or less kept to the time requirement, a few would greatly exceed it, prompting a second bell.

It was about 10 p.m. when were told to line up as “group 4” would soon be called. A dozen speakers later and it was finally our turn. Rudy Asercion spoke first and described the vast array of services provided by West Bay to serve the poorest of the poor of SOMA including after-school tutorials, financial literacy and healthy lifestyle programs as well as life skills training. West Bay had collaborated with the Filipino Senior Center, the Filipino Family Resource Center, the South of Market Clinic and the SOMA Employment Center to present a comprehensive package of services for the Filipino community.

Rudy was followed by Baylan who pointed out that Filipinos comprise more than 6% of the San Francisco city population and that we have “the highest teen pregnancy rate, the highest dropout rate, the highest mortality rate due to domestic violence, and the highest mortality rate in several types of cancer”. She expressed shock that given the basic needs of our community that no grant funds were recommended for any of the Filipino community organizations.

Then it was my turn. As a former elected official of the city for 18 years, I personally knew many of the Supervisors. In my speech, I described the history of West Bay as the most empowered and empowering Filipino community agency in the SOMA district. By 2005, after 35 years of solid work in the community, West Bay had been duly recognized by four city departments as the agency that best served the SOMA community and was properly awarded $468,501 in city funds for its various programs.

But then in that year 2005, the San Francisco Chronicle reported that a West Bay employee was involved in a Medicare scam in the South of Market district. This news article provided the district’s supervisor, Chris Daly, with the excuse to ask the Board of Supervisors to freeze the city funds that had already been allocated to West Bay until, he said, West Bay was cleared of any involvement in the Medicare fraud.

For two months the various city agencies that funded West Bay, together with the FBI, investigated the Medicare scam charge and determined that only one West Bay employee (out of 30 West Bay employees) was involved and she had already resigned. West Bay, they concluded, had nothing to do with the scam. Despite this clearance, however, the Board did not restore the funding back to West Bay, which was then forced to lay off all of its employees and to eliminate the programs that had been effectively serving the community since 1969.

But the Filipino community would not let West Bay die. Slowly but surely, over the years, under the leadership of Rudy Asercion, West Bay came back, once again serving the needs of the most underserved community in the city.

As my time was running out, I prepared to sum up. “Supervisors, I urge….” Then the bell rang and as I was about to finish my sentence, Supervisor John Avalos curtly cut me off saying “Thank you!” as if to say “Next!” Avalos did not do this to any other speaker. I looked at Avalos and remembered that he was Daly’s chief deputy in 2005 when Daly cut off the funds to West Bay. No wonder.

Later, as Rudy, Baylan and I left the chambers, one of the Supervisors, Bevan Dufty, ran after us to apologize for the discourtesy extended to me. He asked for more information about the programs of West Bay and promised to do what he could to restore the funds to West Bay.

A community forum to discuss the exclusion of the Filipino community in the San Francisco city budget will be held on Saturday, June 27, 2009 at 12 noon at the Social Hall of the San Francisco Philippine Consulate at 447 Sutter Street. For more information about West Bay, call (415) 431-6266 or log on to www.westbaycenter.org.

(Send comments to Rodel50@aol.com or mail them to the Law offices of Rodel Rodis at 2429 Ocean Avenue, San Francisco, CA 94127. For past issues, log on to Rodel50.blogspot.com).

Rope-a-dope?

Lakas Kampi is indeed a giant. Organization, money, government resources are in their hands. But flashback to 2007 senatorial elections. Although Lakas Kampi was divided in the local level they were solidly united behind the senatorial ticket and yet they were routed. Because the choice was clear. The opposition had no problem communicating its message to voters. There were no distractions. The focus was on GMA and any national candidate associated with her became her.

Lakas Kampi is doomed at the national level if 2010 is fought like 2007. So the idea is to throw the opposition off its game. No middle of the ring toe-to-toe fighting. Move to corners and tire out the opposition with feints like cha-cha, GMA running for congress, transition governments, and all sorts of other talk.

PaLaKa is big in the small pond (congressional and local offices) but is nowhere in the big pond. As long as the face of corruption looks like a frog they will get nowhere. If they cannot elect a president or a majority senatorial slate, they are nothing. So they throw in everything, every impersonal “objective” issue to avoid turning the fight into personalities.

Here’s the thing. They will keep pushing chacha etal until time runs out. Why? Because that way, we debate legal issues instead of focusing on the personalities who will stand in for Gloria in 2010.

Take Gilbert Teodoro for example. Here’s a guy who, if only he were not in Gloria’s camp, would merit serious consideration. But we are not looking at him that way and asking ourselves why a guy like that would run on the ticket of a party that totally supports everything Gloria has done.

He sells himself as Mr. Clean in the cesspool. As if that’s possible without totally washing himself clean off Gloria and her followers. But until time for cha-cha runs out he will get a free pass.

And after chacha runs out, the next issue will be the legality of Gloria running for a lower office. And all that time Gilbert and Gloria’s senatorial slate will be under the radar.

How do we, without defaulting on the cha-cha issues, keep the heat on any and all national candidates running under Gloria’s party?

Because at the end of the day, if Lakas Kampi control the national offices, we are fucked.

The war is all about “who” not “what.” Because in politics, it is the “who” that tells us the “what comes after.”

Let’s not lose our focus.

The Last Time Comelec Tried Automation...and the Next

At the IBLOG5 Bloggers Conference held at Malcolm Theatre of the U.P. College of Law last month, I was seated beside the Comelec's Spokesman, James Jimenez who has been a blogger for many years and is the sort of government official who takes public abuse with apparent good humour and equanimity. I suppose that is a necessary qualification to work at Comelec!

At the time, there were still three live bidders under consideration by Comelec to automate the 2010 elections (AMA, Israeli firm Gilat, and Smartmatic). But there was also a lot of talk that there would be a failure of the bidding process and 2010 would have to be conducted manually. But James gave an upbeat presentation of the Comelec's automation plans and confidently predicted there would be a clear winner whose system would be acceptable "even to people like you"--whereupon he cast a friendly but chiding elbow and evil eye at me. Sitting on the front row of IBlog5, James Jimenez reminded me about the last time that Comelec tried to automate the elections. That was under Ben Abalos in 2003 with his ill-fated MegaPacific Automated Counting Machines and the billion peso bidding fiasco that was so severely dealt with by the Supreme Court in its en banc decision, penned by Chief Justice Artemio V. Panganiban: Information Technology Foundation v. Comelec [G.R. No. 159139. January 13, 2004]

My favorite passage of this SCoRP decision striking down Ben Abalos' scandal tainted automation project of 2003 is the following paragraph that happens to contain Footnote 54:

J. Panganiban: But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous assumption that nothing would go wrong; and that, come election day, the Commission and the supplier would have developed, adjusted and “re-programmed” the software to the point where the automated system could function as envisioned. But what if such optimistic projection does not materialize? What if, despite all their herculean efforts, the software now being hurriedly developed and tested for the automated system performs dismally and inaccurately or, worse, is hacked and/or manipulated?[54] What then will we do with all the machines and defective software already paid for in the amount of P849 million of our tax money? Even more important, what will happen to our country in case of failure of the automation?

And here indeed is Footnote 54 of the above SCoRP decision:

[54] In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled “Digital ‘dagdag-bawas’: a nonpartisan issue” by Dean Jorge Bocobo, from which the following passages appear:

“The Commission on Elections will use automated counting machines to tally paper ballots in the May elections, and a telecommunications network to transmit the results to headquarters, along with CDs of the data. Yet, with only five months to go, the application software packages for that crucial democratic exercise--several hundred thousand lines of obscure and opaque code--has not yet even been delivered in its final form, Comelec Chairman Benjamin Abalos admitted last week.

“My jaw dropped in amazement. Having built software for General Electric Co.'s medical systems business and military aircraft engines division (in another lifetime), I have learned the hard and painful way that 90 percent of unintended fatal problems with complex software lies in the last 10 percent of the code produced. From experience, I can assure you now with metaphysical certainty that not even the people furiously writing that software know whether it will actually work as intended on May 10, much less guarantee it. Simply put, the proposed software-hardware combination has neither been tested completely nor verified to comply with specifications.”

It's flattering to be quoted by SCoRP in an historic decision, but I feel absolutely no regrets whatsoever that Abalos' Automated Counting Machines were TKO'd by the Supreme Court in 2004, nor any remorse that I had played some very small role in stopping it. But, of course, after the 2004 national elections, I did wonder if the Supreme Court had not in fact been led by the nose to scuttle a system that the likes of Virgilio Garcillano, Bedang Bedol and their ilk probably did not want in place at that point in history. I doubt that we shall ever know...But fast forward to the present and James Jimenez's prediction or promise that 2010 would be an automated election.

I was skeptical at the time, sitting there with him at IBlog5, but now, lo and behold, the Poll Automation Law shepherded through Congress by Sen. Dick Gordon has apparently resulted in Comelec selecting a system and service provider to undertake the historic first-ever automated Philippine national elections in 2010. In its Notice of Award to the winning consortium bidder, Total Information Management Corp. plus Smartmatic, Inc., the Commission said:

You are hereby notified that pursuant to En Banc Resolution No. 8608 dated June 09, 2009, the Commission AWARDS to your joint venture the contract for the procurement of counting machines, including the supply of ballot paper, electronic transmission services using public telecommunications networks, training, technical support, warehousing, deployment, installation, pull-out, systems integration and overall project management, for the Automation of the Counting, Transmission and Canvassing of Votes for the May 10, 2010 Synchronized National and Local Elections, particularly:

...Particularly 7,191,484,739.47 pesos worth of goods and services.

Something James told me at IBlog5, which really stuck to my mind, was a conceptual distinction he made to me about automated systems being TAMPER-PROOF or being TAMPER-EVIDENT.

Speaking to ABSCBN News this past week, Comelec Spokesman James Jimenez mentions the fact that the Smartmatic system of 82,000 plus counting machines will be transmitting RAW PRECINCT DATA to a Comelec Database that could theoretically provide a strong measure of transparency would go a long way to securing the election. The idea here is that the "addends" that will eventually be canvassed and summed up for final vote tallies will be open to the public.

But the details of this open public database are unknown:

(1) Will it be online such that an outfit like Namfrel or a Bloggers Consortium, or some large nonpartisan citizen's group, could indeed organize an independent canvass using the exact same data as the Comelec and Congress--at least for the President, Vice President and Senators?

(2) Will it have the bandwidth ("big iron") to service the likely flood of public queries and organized efforts at auditing the results? Or will the thing bog down on Election Day and the Comelec will sheepishly apologize because they put some poopy laptop in to service the gigabit per second incoming query data?

(3) What would happen in the case of massive discrepancies? Can an independent group get special Comelec certification to help specify and build this major aspect of transparency? There are after all still 4 billion pesos left in the automation budget!

People who are interested in this aspect of the 2010 Automation Election need to get organized around the effort RIGHT NOW! The election is less than a year away.

Who Will Guard the Guardians of Democracy?

Suppose the Lower House convened itself into constituent assembly sans the Senate’s participation and introduced amendments to the Constitution. Let’s suppose further that a Malacanang-funded plebiscite was called by the Comelec for the purpose of amending the Constitution. Let’s finally suppose that the Supreme Court affirmed such acts of the Lower House and the Comelec via a final unanimous decision.

Clearly, the ruling of the Supreme Court in the above situation is erroneous, wrong and unconstitutional.

My lessons in constitutional law teach me that a Supreme Court’s decision is invariably right, right or wrong, and becomes the law of the land. No other department of the government can overrule such decision.

Who can then correct the decision of the Supreme Court that is obviously unconstitutional? My lessons in constitutional law say that only the Supreme Court itself may reverse its earlier decision that is perceived to be unconstitutional through a proper case. This is a long process and may not even occur if no similar case occurs.

There’s another way and it’s also a long shot and very theoretical, i.e., the people in their exercise of sovereign power (or through their representatives) may change the constitutional provisions interpreted wrongly by the Supreme Court in accordance with the amendatory provisions of the Constitution.

In my view, there is no better action against any infidels of the constitution than the exercise of direct people power.

Amongst the Legal Eagles on Constituent Assembly

OR, How Two Opposed Arguments Reach the Same Wrong Conclusion on Conass

I attended yesterday's conference at the Ateneo de Manila University Law School at the Rockwell Center in Makati on the Constituent Assembly proposal of the Lower House. I recorded the four main speakers and offer a summary and reaction to their statements in the Comment Thread. I invite all Philippine Commentary authors, readers and visitors to listen to the speeches and enter comments on this important and crucial issue facing the nation...

Joaquin Bernas, SJ [MP3]

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Manuel L. Quezon III [MP3]

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VICTOR F. ORTEGA [MP3]

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ADEL TAMANO [MP3]

Before his address to ADMU law students yesterday about the brewing controversy over House Resolution 1109 to convene the Members of House and Senate into a Constituent Assembly, I asked Founding Father Joaquin Bernas a hypothetical question:

If the Senate--for whatever reason and no matter how unlikely it actually is today--were to pass a resolution of its own, agreeing to convene in Joint Session with the Lower House, AND agreeing to make no distinction between Members of the Senate and Members of the House when voting to propose amendments to or revisions of the Constitution--would this be Constitutional? In other words does the Congress have the power under the Constitution to decide via separate Joint and Concurrent Resolutions that henceforward the Members of House and Senate will VOTE JOINTLY when proposing Charter Changes.

I was SHOCKED and DISAPPOINTED at his answer: "NO!" Fr. Bernas said, he would go to the Supreme Court himself with a justiciable controversy over such a hypothetical move by the Senate, because as he very plainly made clear in his talk to the students, he believes this would violate the essential bicamerality of the Congress.

I BEG TO DISAGREE.

For I cannot understand how such an arrangement would be unconstitutional. To me, as long as the Senate and the House SEPARATELY agree that their Members will VOTE JOINTLY on chacha proposals with both Houses applying the three fourths majority rule, the Constitutional provision is completely upheld:

Article 17 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.

Indeed, the present arrangement is one in which Senate (without passing an explicit Rule) and House (by adopting Rule XX in 2007 and since 1987) have SEPARATELY decided that their Members will propose charter changes in the manner of processing bills...i.e. that they will vote SEPARATELY.

Just last Friday in his PDI column, Fr. Bernas defined for us what he calls the "1109 Purists" among the House Members backing what is essentially a unicameral conass. This group of people believe that it would be unconstitutional for House and Senate to VOTE SEPARATELY because they believe the "plain language and meaning" of the cited provision FORCES a joint voting of all the Members of the Congress.

Now of course anyone who understands the Distributive Law of Multiplication under Addition can see the utter weakness and fallaciousness of this argument from Bernas' 1109 Purists. It is abundantly clear, and mathematically undeniable, that the constitutional requirement of "three fourths of all its Members" can be complied with entirely and compleatly by the Congress under EITHER a joint or separate voting rule.

But is Father Bernas' own position and argument any stronger than that of the Unicameral or 1109 purists? I think only very marginally so, and as I will show below, his argument leads to the SAME wrong conclusion as that of the House. I would characterize Bernas' position as a "1935 Purist!" in which he makes an appeal to the explicit nature of the provision in the 1935 Constitution which instructs the House and Senate to meet in joint session for joint deliberations, but separate voting. This is his position too: that House and Senate can meet in joint session but must vote separately.

I agree with his conclusion, but I don't believe the justification for it is IN the 1987 Constitution! Even with Fr. Bernas' recollection that during the 1986 ConCom deliberations which crafted 1987, they had fully intended to say "voting separately" but just forgot after the Bicameralist won by one vote, we are still faced with the plain text of the Constitution which plainly allows either JOINT or SEPARATE voting. As Father Bernas himself says in the speech, "What the Constitution does not prohibit, is allowed". (He says this in explaining that the Congress may propose ANY amendment or revision).

I think that BOTH the arguments of the 1109 Purists and the 1935 Purists (with whom I side only philosophically) are EQUALLY WEAK and FALLACIOUS.

The only thing they seem to agree upon however is the conclusion that this must all be settled by the Supreme Court (SCoRP), with the 1109 Purists banking on the 14 of 15 Justices reportedly in GMA's pocket (I don't necessarily believe that), and Fr. Bernas on the fundamental principle of Bicameralism.

AGAIN, I BEG TO DISAGREE.

I think that the CONGRESS has the entire discretion and power to decide HOW it will exercise Constituent Power. I think that the Constitution, grants to it that power, save that it must comply with the three fourths majority rule. I do not believe that the Supreme Court can, or should decide for the Congress. The TEXT of the Constitution DOES NOT PROHIBIT either joint or separate voting. Both modes would be Constitution IF AND ONLY IF either rule is adopted SEPARATELY by both Houses of the Congress.

I believe that the central issue here is not: "Joint or Separate Voting?" but: "Who decides: SCoRP or the Congress!"

IF the Congress cannot agree on HOW it will exercise Constituent power, they would not violate anyone's rights, neither each other's, if they DO NOT or CAN NOT propose charter changes! Yet is it not obvious that up until GMA and the House minions decided they would be willing to throw the country into Constitutional Crisis by intentionally and despicably igniting a "justiciable controversy" that the Congress HAD ALREADY decided it would be voting separately?

Just Do It

It would be nice if former president Ramos made a clear and positive declaration to our people whether he still supports Gloria Arroyo or not.

He has to stop titillating the public with his on-again off-again support for her. It’s been going on for too long.

It’s simply not fair. He already has the public confused with his equivocation, must he also befuddle them with mixed metaphors?

“But as chief executive and commander-in-chief, she (Arroyo) must perform with greater agility and skill than the ordinary circus juggler, whose feet are on the ground…The President still on the high-wire may be riding a bicycle, while still balancing the critical issues whose number may increase because of outside forces. That is how difficult and complex it is to be in the hot seat or pressure cooker called Malacañang.”

Maybe that’s why Mrs. Arroyo can’t decide whether to ram charter change through, run for Congress, or declare a state of national emergency. She’s also bewildered.

By the way, why doesn’t Gloria Arroyo run for senator?

If she tops the winners, it would prove to everyone that people actually like her. But more than that, she would be walking her talk.

“We have a vision. We would like the Philippines to be on the verge of the First World in 20 years. What I hope is we would be able to work on the things that are needed to reach the First World in 20 years...”

Unfortunately, Senate President Enrile says she can’t run for any other office.

“I don’t think constitutionally she can do it, to run without forfeiting her seat as President…She cannot toy around with this position as if you are a governor, a mayor, a councilor, a barangay captain…Now, if she will run to become an emperor, that’s an entirely different matter. That’s a higher post.”

An emperor? Hmmm…does that mean a sex change before charter change?

But seriously, a monarchy may not be such a bad idea considering that the biggest problem with representative government, be it presidential or parliamentary, is the lack of a fail-safe against crooked officials dipping their sticky fingers into taxpayers’ money.

In a monarchy, a ruler has no compulsion to steal because tax revenues are his personal property. So, if Gloria were to become empress instead of president or premier, would she steal what already belongs to her?

Instead of obsessing over how to steal, Empress Gloria will focus all her attention and energies into collecting taxes and preventing those taxes from being stolen from her.

She will not allow anybody to evade or avoid taxes. She will not let BIR or Customs officials take a bite off her cake. She will monitor very closely every other source of government revenue, from cedulas to God knows what, to make sure she gets every single centavo due her.

She will not tolerate rigged bids, kickbacks, unnecessary projects, over-priced projects, ghost projects, double-insertions, and other leakages. There will be no wastage in infrastructure and public services spending.

Honesty, discipline, and professionalism will prevail because a monarch will not put up with any mishaps from those dealing directly with her subjects. She knows a breakdown in public services will cause dissatisfaction. And that can lead to unrest and unrest to revolution.

Furthermore, there will be political stability. Hereditary succession will ensure an orderly transition of power. Everyone will know ahead of time “apres Gloria, le Crown Prince Mikey.” So everyone will have ample time to build an ark.

A monarchy takes the load off the people’s shoulders. They will not be blamed for electing the wrong leader. As George Carlin quipped many years ago, "I don't think we should be governing ourselves. What we need is a king, and every now and then if the king’s not doing a good job, we kill him."

Thus, politics, under any guise, is ultimately a numbers game. The greater number gets to swing the axe. And so, at the end of the day, although a monarchy may not be democratic in form, it is in substance.

We want heads to roll off!

This is probably the most idiotic political proposal ever dished out in this whole talk of constitutional amendments. Norberto Gonzalez, a key Arroyo adviser suggests that his employer establish a revolutionary government in the likes of what Mrs Aquino did post EDSA. This government then shall have all powers to revise the constitution.

Well we have news for Mr Gonzalez. If we do have a revolutionary government, we want it to be a genuine one and we are serious about it. We want a razor sharp guillotine with matching basket to catch a few Malacanang talking heads like what he has on his shoulder.

But we being civilised in this 21st century, can be satisfied with Mrs Arroyo sacking him for such irresponsible and idiotic statements.

Can GMA Run For Congresswoman?

By Joselito G. Basilio

There is an ongoing debate as to whether President Gloria Arroyo would be considered as having forfeited her position should she run for congresswoman in Pampanga. Let me submit what I understood about this issue.

Before the passage of Fair Election Act (Republic Act No. 9006), any elective official including a President is deemed resigned from his office upon filing of his certificate of candidacy. The Omnibus Election Code (B.P. Blg. 881, Sec. 67) provides :

Sec. 67. Candidates holding elective office. - Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso factoresigned from his office upon the filing of his certificate of candidacy.

In the landmark case of Dimaporo vs. Mitra (G.R. No. 96859, 15 October 1991), the Supreme Court sustained the constitutionality of Speaker Mitras’ administrative act of erasing Ali Dimaporo name from the Roll of the House, pursuant to Sec. 67 of B.P. 881. The High Tribunal underscored the basic concept that a public office is a public trust - it is created for the interest and benefit of the people. As such, the holder thereof is subject to such regulations and conditions as the law may impose and he cannot complain of any restrictions which public policy may dictate on his office.

However, Sec. 67 of B.P. 881, was repealed by Sec. 14 of R.A. 9006 in 2001. The repealing clause provides :

Section 14. Repealing Clause. – Section 67 and 85 of the Omnibus Election Code (Batas Pambansa Bldg. 881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby repealed or modified or amended accordingly.

R.A. 9006 was declared constitutional by no less than the Supreme Court in Farinas vs. Comelec (G.R. No. 152161, 10 December 2003). The SC said that Congress is not precluded from repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra, upholding the validity of the provision and by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws — the fair, honest and orderly election of truly deserving members of Congress — is achieved.

Incidentally, Justice Cruz, argued that the repeal of Sec. 67 of B.P. 881 by Sec. 14 ofR.A. 9006 is not valid for being a mere rider in violation of Art. VI, Sec. 26 (1) of theConstitution providing that “every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.” The Fair Election Act deals only with political advertising, like TV commercials and election posters. It has nothing to do with forfeiture of original offices upon the filing of certificates of candidacy for different offices as provided for in Sec. 67.

In conclusion, based on the R.A. 9006 and Farinas ruling, GMA would not be deemed as having forfeited her position should she files her certificate of candidacy for congresswoman or any other positions lower than the Presidency for that matter.

It is however my fervent hope that someone has to challenge anew the constitutionality of Sec. 14 of Fair Election Act in the event GMA files her certificate of candidacy.

The Greening of Jose Rizal

HISTORIAN AMBETH OCAMPO explains why the National Historical Institute recently painted a certain very famous House in Calamba, Laguna a much-remarked upon shade of green (and for which he was referred to unkindly "the idiot who painted Rizal's house green).

AMBETH:...While our lawmakers debate the pros and cons of the Comprehensive Agrarian Reform Program, while farmers march to Congress to push for the implementation of CARP, we should remember that one of the seeds of Rizal’s heroism was that his family was evicted not just from Calamba but from Laguna. Contrary to popular belief, the Rizals did not own land; they were tenants of the Dominican hacienda. They refused to pay increased rent, went to court and lost.

...Finally, the reason for painting Rizal’s house green highlights and informs visitors of the meaning of his surname. Following the 1849 Claveria decree giving surnames to Filipinos for tax and census purposes, the Rizals who were also known by their other surname Mercado (market) chose “Risal” from the “Catalogo alfabetico de apellidos.” The word comes from the Spanish “ricial” which describes a green field ready for harvest. It was hoped that after asking, “Why is Rizal’s house green?” the visitor will get a relevant answer: the green hues are meant to honor the memory of the Rizal family and their way of life.

I have not seen the newly painted house at Rizal Shrine in Calamba, so I cannot really speak as to aesthetics, but I am won over by Ambeth's substantial reasoning above. (Read his whole piece!).

For me this actually also goes hand in glove with the recent UNANIMOUS APPROVAL of House Bill 5408 which seeks to move the December 30 holiday to Jose Rizal's Birthday on June 19. By celebrating his life instead of his death, perhaps we shall get away from Rizal the Morose and Melancholy Victim to living, breathing hero he can be in the 21st Century.

That is the true 'GREENING' of Jose Rizal.

Jose Rizal as the symbol of our struggling tenant farmers and an environmentalist fighting for modern agriculture. I like it!

The Dilemma over People Power

The short Twitter exchange between myself and Doc Emer was taken out of context in Ms. Veneracion’s column on Manila Standard. For the past week I have been glued to the revolution unfolding in Iran. And I tweeted that People Power is one Philippine export our people could be proud of, to which Doc Emer replied “No. They're sick and tired of people power.” I tweeted back, “A shame then. How can people be sick and tired of fighting for freedom?”

Ms. Veneracion in her column reiterates the People Power was not a mass-initiated event. No account of EDSA 1 and EDSA 2 would claim otherwise. I certainly don’t. I also agree with her on the narrowness of People Power’s aims:

Third, the 1986 Edsa Revolution, a.k.a. People Power, was a fight for freedom only in a very narrow sense because its proponents were fighting to free themselves primarily, and the country secondarily, from the tyranny of Marcos.

I would not go so far though, to claim that People Power was manufactured to suit these ends:

It was merely about booting out some people and placing others in their stead. It was never about a long-term empowerment of the masses but merely a monitored empowerment that lasted only long enough to install new protagonists in key positions in government.

I understand Ms. Veneracion’s fear of ‘People Power.’ More than two decades later, the promise of EDSA has been frittered away. It is arguable whether we are better off today than Filipinos who lived through the Marcos regime. She is fearful of what might result from another EDSA revolt, fearful most of political opportunists who might take advantage. We need only look at Gloria Macapagal Arroyo to see that the consequence of our action has installed a President who now rivals Marcos in her hunger for absolute power.

This points then to the limits of People Power, what it is and what it is for. I agree with the characterization of Joel Rocamora, when he says it is a symptom of our ‘low intensity democracy.’ Because our institutions are far from democratic, they are open to monopoly by power holders. The current push for constitutional change, which all political observers interpret to be Arroyo’s bid to remain in power, is testament to this susceptibility to monopoly.

While we can debate over the consequences of People Power, that is, the citizens’ recourse to action when our major institutions – the Executive, the Legislative and the Judiciary, are co-opted by non-democratic forces - can we cast doubt over the utility, indeed the reason for being, of People Power itself?

I say no. For as long as our political institutions continue to be hi-jacked by a few, for as long as our government cannot and does not reflect what we citizens deem to be good and just way of governing, then the Filipino ought to have recourse for People Power. It ought to remain a legitimate means to air our grievance especially in times of crisis. When our institutions are open and accessible to the will of all, then we may lay the parliament of the streets to rest.

The question then is not whether Conass will trigger People Power, as Ms. Veneracion asks. The question is why must we resort to People Power at all? Why if we have the trappings of a democratic society, must we resort to unleashing the Power of the Powerless? That is, the act of articulating, whether it be on blogs, on Twitter or out on the streets, that the Empress has no clothes?

Happy Birthday, Mr. National Hero!

TODAY is the 148 birth anniversary of Jose Rizal, who was born on June 19, 1861. For me, the First Filipino is still the best, and the most luminous proof of our Humanity, our Intelligence, our Courage and our Compassion. He stood for eternal principles, and that is why we mark him.

Indeed there is full-fledged National Holiday on December 30 which is called "Rizal Day"--though in recent years the date has become more memorable for the deadly Rizal Day bombings conducted by Al Qaeda on December 30, 2000, and of course Gloria Macapagal Arroyo's broken promise not to run in 2004, likely delivered with malice aforethought as subsequent events proved, on Rizal Day 2002. On the other hand, June 19 is NOTHING, nada on the national scene. Instead June 19 is Araw ng Surigao and Palawan's Feast of the Forest.

But what does one expect of a holiday squeezed in between Merry Christimas and Happy New Year and competing with Ninos Inocentes? On every December 30, the loudest sound heard is: "Fuego!" -- as the Spanish Taliban is officially vouchsafed to commemorate its most villainous act of murdering one of its best and brightest products. And so I am for rescuing the Rizal Day holiday from the depths of dark December, and celebrating it on June 19. Since this closely coincides with the beginning of each school year, such a move may be of great benefit to schools and students--as an inspiration to study and to work hard--since his novels, plays, poems, letters, scientific and historical treatises, and works about his life lineage and labors --can all enrich and invigorate the experience of learning in Philippine schools.

Perhaps the December 30th holiday was important at the early stage of nationhood. But today, I would rather see us celebrate his well-tempered life of noble achievements, than the cruel death to which his enemies condemned him, by at least celebrating RIZAL DAY on June 19 too!

Ignorant and Ignoble

"While the Court has taken an increasingly liberal approach to the rule of Locus Standi, it is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.” These are the harsh words of Chief Justice Reynato Puno in dismissing the consolidated petitions - filed by lawyer Oliver Lozano and his daughter Evangeline Lozano, who is also a lawyer, and one Louis "Barok" Biraogo - that seek to nullify HR 1109.

To receive such a strong rebuke, from the chief justice no less coupled by the near unanimous approval of a court of 13, is indicative not only of the brimming legal errors attending the Lozano petition, but also of something even more despicable. To be sure, the Lozano petition is not the first to land on the doorsteps of the High Court to be thrown out for lack of a justiciable controversy. The petition recently filed by the youthful Bohol Congressman Adam Relson Jala, asking a ruling on joint voting by Congress on Charter change, easily comes to mind. That petition was dismissed by the Supreme Court in a minute resolution for prematurity also.

And there are several other cases dismissed on similar grounds, or, if not dismissed, the issues of justiciable controversy and standing are contentious, which goes to show that they are not really easily grasped concepts even among some legal practitioners specializing in constitutional law litigations.

So what made the Supreme Court, Chief Justice Puno in particular, revile at the Lozanos by indirectly calling them ignorant, ignoble and suffering from cerebral deficit? What is it that previous suitors of the court, who were equally unlearned in the fine art of engaging its attention, did not do or have to incur the court's displeasure? Is it the personality of Oliver Lozano himself - a man who has long been associated with the Marcoses - that struck a discordant note in the mind of the chief? Is it because it was Oliver Lozano, the man who has filed four defective impeachment complaints in succession against President Macapagal-Arroyo, with no conceivable purpose but to get ahead of the flock in unseating an unpopular president to gain media mileage or for defeating legally sound impeachment complaints by playing around the one-year bar on impeachment?

Chief Justice Puno did not merely content himself in stating the usual, although seemingly arcane, legal principles that are too often involved in constitutional law litigations in disposing the Lozano petition. He went as far as question the fitness of father-and-daughter Lozanos as members of the legal profession. He branded them as ignorant, presumably of the law - which could be a ground for administrative discipline for lawyers and judges alike - and ignoble, which refers to baseness of character that would make one unfit as a lawyer. Now I am not suggesting that lawyers are angels, but if one is found wanting in the qualities required by the rules of professional responsibility his or her license may be taken away.

Perhaps Chief Justice Puno was also aggravated by the possibility that Lozano's petition could be trying to add a stamp of validity to the much-hated HR 1109 by forcing the Supreme Court to indirectly declare it legal, given that the Lower House has yet to encroach on the powers of the Senate. Indeed, the chief has said in his ponencia, maybe grudgingly, that no "usurpation of power or gross abuse of discretion has yet taken place.” This somehow undercuts the public outcry against the congressmen who have been called various distasteful names, chiefly flouters of the Constitution, in approving HR 1109. With Lozano's petition out and the High Court's ruling, these congressmen can now tell their detractors with even more defiance that they did nothing illegal. What the Lozano petition purported to accomplish - to declare HR 1109 illegal - in effect made the Supreme Court give a stamp of validity to HR 1109. The quintessential Lozano at work!

Gloria's Fantasyland

In the news last month was the opening of a multibillion-peso amusement park in Dapitan City, Zamboanga del Norte. Called Gloria’s Fantasyland, the amusement park promises children fun and excitement with the choco-cup ride, the midi-flume ride, the carousel, the swinger, the Apollo, the minitrain, a giant roller coaster, a horror house, and interactive rides like Happy Journey, Fight Shark, World of War and Telecombat.

Gloria’s Fantasyland is owned by Romeo Jalosjos, a former congressman convicted of two counts of statutory rape and six counts of acts of lasciviousness against an 11-year-old girl.

I know…my steaming-hot morning coffee went shooting out of my nose, too.

A month before his “Disneyland in the Philippines” was opened to the public, Jalosjos told the press, “This is our way of letting less fortunate children enjoy the different rides which they have not experienced before.”

I know…I, too, had visions of Uncle Romy’s 11-year-old victim experiencing different rides she had not experienced before.

Jalosjos admitted to acts of lasciviousness, but he vehemently denies he ever raped the child.

“The victim, according to the mother, was almost 13 years old or rather more than 13 years old,” he said.

Under Republic Act 8353, the Anti-Rape Law of 1997, statutory rape applies only when the victim is less than 13 years old.

Okay, so she was 13 and he was 56 at the time. Did they hang out with her friends, or his?

I know…age does not matter where lust is concerned.

Jalosjos never apologized to his victim directly. He believed his personal transformation was proof enough of his remorse:

"Hindi na kailangan ang word na ‘tawad’ ay marinig. [Ang] importante ’yung transformation na nakikita niya dahil sa pagsisisi [There’s no need to hear the word ‘sorry.’ What’s important is that she sees my transformation because of remorse].”

Two years ago, I wrote, “Maybe the aging pedophile will finally express remorse by turning his Dakak Island Resort into Uncle Romeo’s Enchanted Island Orphanage for Girls.”

It seems my quip was not too far off the mark. Jalosjos did build something for children.

I know…Jalosjos is making children happy instead of making happy with children.

I’m seriously thinking about bringing my nieces to Gloria’s Fantasyland. The only thing stopping me from doing it is the A (H1N1) virus.

I know…you, too, are worried about taking your kids to crowded places.

Gloria Arroyo graced the opening of the theme park. Some sectors did not approve of it. One columnist commented, “In other countries, heads of state are never to be seen with ex-convicts, much more a child rapist.”

I don’t know about that….

Jalosjos was convicted of raping one child. Arroyo is accused of raping 80 million people. Shouldn’t he be the one concerned about being seen with her?

But, kidding aside, Gloria Arroyo obviously has a soft spot for monsters. She pardoned Claudio Teehankee Jr., a man who shot and killed two teens in cold blood; she pardoned the soldiers who assassinated Ninoy Aquino; she hailed Gen. Jovito Palparan as a hero despite the mountain of human-rights abuse allegations against him; and she pardoned Romeo Jalosjos.

Gloria Arroyo did all of the above without consulting the families of their victims and, in the case of Jalosjos, the victim herself.

The woman Jalosjos raped sent Gloria Arroyo a letter that spoke directly to her disdain for victims.

“What is the government doing to protect victims?

“He [Jalosjos] did not listen to my cry. He ignored my tears. He raped and abused me repeatedly. He was about to buy me to be his live-in sex slave if I had not escaped. I was only 11.

“Please extend your compassion not to your political ally but to an innocent victim. Please do not condone his crime. I appeal to you. I deserve my justice. Please do not take it away from me.”

I know….

Making sense of the Ateneo

I read with delight John Nery's column in the Philippine Daily Inquirer "Erasing Ateneo". Here our Blue Eagle columnist compares English translations of a passage in the most famous chapter of Jose Rizal's Noli Me Tangere "Idilio en una Azotea"

Rizal's original is

"Eramos aun ninos, fuimos con tu madre a banarmos en aquel arroyo bajo la sombra de los canaverales. En las orillas crecian muchas flores y plantas cuyos estranos nombres me decias en latin y en castellano, pues entonces ya estudiabas en el Ateneo."

(sorry for the spelling. my n tilde isn't working on my damned keyboard!)

In the passage, Nery's alma mater is mentioned. He then compares the latest English translation (2006) by Harold Augenbraum, the 1961 translation by then Philippine ambassador to the Court of St James, Leon Ma. Guerrero and the well received 1996 translation of the late Soledad Locsin.

Augenbraum translates El Ateneo as "athenaeum". So like John Nery, I immediately went for dictionary.com and searched for its the meaning. The word's etymology comes from the Greek neologism Athenaion or temple of Athena, where poets read their works. In English "athenaeum" means 1) an institution promoting literary and scientific learning, 2) a library or reading room and 3) the Temple of Athena.

Surely la Universidad de Ateneo de Manila fits the bill for number 1. The Loyola Heights campus is more than a library (although it has a superb library appropriately named in honour of the Hero). The campus definitely isn't the Temple of Athena!

Nery is miffed that his beloved Ateneo became a common noun. I understand his feelings for this is Ateneo's sesquicentennial year and last Sunday, the school kicked off the celebrations with rites at its old Intramuros campus. But Nery misses much of the old meanings. The Ateneo then and now signified and still signifies subversion. I would agree that Augenbraum removes the subversive nuance by using a common noun. Guerrero's translation doesn't even mention the word "Ateneo" but he translates it as "school with the Jesuits in Manila" Guerrero's translation caters for users of English in the Commonwealth. Since the Tudor and Reformation history of England and the colonies is a tale of religious subversion, Guererro's translation carries the message well. "Ateneo" may not convey the subversive "punch" for these readers. Those reared on American history and American English usage may not get Guerrero's idea. In the reign of Elizabeth I, the major threat to her reign and the Established Church of England were from Jesuits sent from Rome. The most famous of these Jesuits was Father Edmund Campion of "Brag" fame. Campion was known as the "seditious" Jesuit and was canonized in 1968 as a Catholic saint. I don't think Guererro 'erased" Ateneo in his translation. However he could have used the name and had a footnote explaining what the Ateneo is. Derbyshire had a footnote explaining what Ateneo was.

Derbyshire's translation uses Ateneo as a proper noun and so do Priscilla Valencia's and Soledad Locsin's. Nery should have no problem with this.

Nery implies that Rizal's Ibarra could not have learned the names of flowers and plants in the library. Again Nery doesn't get the idea. He looks at Victorian science with 21st century lenses. In the 19th century, naturalists learned their taxonomy from species catalogues which were so valuable that only libraries and museums could afford to have them. Father Blanco's Flora de Filipinas is a prime example. It was only when ships were fast enough and after the opening of the Suez Canal that naturalists like Charles Darwin and Alfred Russel Wallace went on collecting expeditions, thus laying down the foundations of modern biological science.

Even today, a student of biodiversity still starts his/her studies in a library and museum before embarking on a field trip!

Rizal paints a picture of a time that is now lost. Even his depiction of the riparian environment is no longer found in many places in the Philippines.

So I translate Rizal with my Spanish 20 training as

When we were children, we went with your mother and bathed in that creek under the shade of the bamboos. Along the banks grew many plants and flowers whose strange names you told me in Latin and Castillian. for you were then a student at the Ateneo.

Augenbraum isn't familiar with Philippine biodiversity. It is silly to translate canaverales as sugarcane. Sugarcane can't give shade and in the Philippines, bamboo or "kawayang tinik" is common riparian vegetation. Bamboo also is the habitat of many snakes!

As for Ateneo, while it may not look so subversive in the 21st century, its ethos is subversive. Ridiculed with the carino brutal term "conyo" by students and alums of the State University, Ateneo is Jesuit first, Catholic second and as such is subversive (What John Paul II wanted in Ex Cordiae Ecclesiae is that a church run university should be CATHOLIC period). When there is a major controversy, the subversion bubbles out of the Loyola Heights campus. The latest demonstration of that is when Ateneo profs publicly declared their support for the Reproductive Health bill. Ateneo prez, Father Ben Nebres had to do damage control since the news allegedly wafted into the Vatican.

If Ateneans are conyo elitist let them be as long as they are subversive. The Ateneo has educated the country's elite and the nation owes the school much of its identity and its revolutionary tradition. Working with Ateneans has been a pleasure for me. After all who else can talk about Philosophy and Theology while doing an ecological field survey and over a bottle of Tanduay? I don't think anyone from UP can do that!

I have been mistaken for an Ateneo alum perhaps because of my taste for blue shirts and the fact that I once taught there. But I believe it was because the Jesuits shephered me in my journey back to the Catholic Church. They did very little in indoctrination except in giving me a biography of Edmund Campion.

I wish the Ateneo the best in their 150th year. May the university produce more subversives!