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.

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!

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?

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).

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.

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.

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.

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?

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.

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.

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.

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 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?

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!

"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!

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….

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!

Article 17 Section 1 above clearly grants "Constituent Power" -- the power to propose amendments to, or revisions of the Constitution -- to two different entities: (1) The Congress; and (2) A Constitutional Convention.

Unlike the Congress, which is amply  defined in the Constitution and is a continuing institution,  a ConCon would have to organize itself, elect its officers, adopt its rules of procedure, etc.  

Now read the disposing portion of HR 1109--

“NOW THEREFORE, BE IT RESOLVED, THAT THE MEMBERS OF CONGRESS BE CONVENED FOR THE PURPOSE OF PROPOSING AMENDMENTS TO, OR REVISION OF THE CONSTITUTION UPON A VOTE OF THREE-FOURTHS OF ALL ITS MEMBERS THAT UPON ITS BEING CONVENED SHALL ADOPT ITS RULES OF PROCEDURES THAT SHALL GOVERN ITS PROCEEDINGS.”

Clearly, this mere House Resolution is calling upon  the Members of Congress to CONVENE into what is in effect an UNELECTED CONSTITUTIONAL CONVENTION.

A Constitutional Convention (ConCon), "upon its being convened," would indeed "adopt its rules of procedures that shall govern its proceedings." 

But the 1987 Constitution clearly did not intend for the Members of the Congress to usurp the clear and separate mode of a Constitutional Convention by convening themselves into a separate entity that they are now calling a Constituent Assembly.  The delegates to a ConCon are elected by the people specifically to amend or revise the charter.  Perhaps that is why a three fourths majority rule condition is provided by the Constitution when Congress exercises constituent power.

HR 1109 is superfluous because the Congress already IS a ConAss in the sense that the Congress can already propose any amendment or revision.  

HR 1109 resolves to convene an entirely different and separate entity, called the Constituent Assembly, distinct from the Congress, which will even "adopt is [own] rules of procedure that shall govern its proceedings".  Then certain Members of Congress intend to install themselves in the role ConCon delegates without the benefit of election to that role.

Some people are saying that if and when Nograles and company convene the ConAss, that will ignite  a "justiciable controversy" that will force the Supreme Court to decide the matter.

I don't think it should ignite a justiciable controversy at all. Rather it should ignite arrest and charges of Graft and Corruption, in flagrante delicto, against all participants in such an illegal action to convene what is in effect an unelected Constitutional Conventon.

Citizens ought to be alarmed, or better yet they ought to be up in arms  when immoderate provocateurs like Luis Villafuerte and Prospero Nograles shamelessly proclaim their design and intent to "ignite a justiciable controversy" around Constitutional provisions. Is fomenting a Constitutional Crisis for the sake of Constitutional Clarity a form of statesmanship or is it plain mischief-making by Evil Clowns in the disguise of Solons? 

From the President's acceptance speech at the Partido Lakas Kampi merger ceremony.  No need for commentary as President Macapagal Arroyo minces no words, whatsoever, about the 2010 campaign.  This YouTube video is still posted on the President Gloria Arroyo Appreciation Group on Facebook.

JUNE 12 being Philippine Independence Day, a certain quotation from the Commonwealth-era President Manuel L. Quezon will be making the rounds of the main stream punditry as well as the blogosphere:

“I prefer a government run like hell by Filipinos to a government run like heaven by Americans..."

which has been gleefully seized upon by every wag and wit throughout modern Philippine history to sagely tsk-tsk, "There you see how Quezon got his wish!" -- whenever some self-inflicted catastrophe like Con-Ass or chronic condition like graft and corruption--strikes or bedevils the country.   Often  it is the nationalistic wags and wits that employ this literary device to diss the aristocratic and patrician President Quezon,  often without realizing they could be accused of a colonial mentality for expressing such nostalgia for a previous dispensation.  

But to forearm Philippine Commentary Readers against the rhetorical pitfalls of truncated quotations, let us look at the unexpurgated version of the famous Quezon quote as explained by his descendant, our good friend Manolo Quezon:

“I prefer a government run like hell by Filipinos to a government run like heaven by Americans....Because, however bad a Filipino government might be, we can always change it.” [President Manuel Luis Quezon].

Quezon's actual point was that with Independence, we gain the freedom to choose between heaven and hell, both in our leaders and in ourselves.  To which however, I must add this 1950 essay by the British-American historian Denis W. Brogan who puts an even finer point on Quezon's -- that there are no guarantees that Independence will immediately, or even ultimately, result in heaven!

MP3

Uhmm...Happy Independence Day!

I know, the discussions on Charter change (cha-cha) and constituent assembly (con-ass) have already flooded the Philippine blogosphere, not to mention the internet as a whole and the print media, that to write more about them seems like stuffing more food into an already satiated stomach. But since the country has already been thrown into a continuous national debate on these subjects, and there appears to be no letup in the discussion, I am disposed to put more thoughts into what this con-ass is all about.

As far as our basic law is concerned, the word con-ass only appears in the 1899 Constitution or the Malolos Constitution. Under Title XIII, Articles 89 and 90 of this Constitution, whenever the Assembly (our then unicameral legislature) proposes amendments to the Constitution, the President shall dissolve the Assembly and assemble a con-ass. In subsequent Constitutions - 1935, 1973, 1986 - including the present, the word con-ass is no longer mentioned. This, however, does not necessarily mean the con-ass has been done away with.

A con-ass simply refers to a body with the power to frame, draft or amend a constitution. Thus, although no longer using this term, Constitutions subsequent to the Malolos Constitution still provided for a con-ass, which is either the legislature or a constitutional convention, with the exception of the 1986 Freedom Constitution which provided for a Constitutional Commission.

Our legislature, from the past to the present, has been granted two important functions: (1) to enact laws, which is the legislative function and (2) to propose amendments to the constitution or the constituent function. Notably, under the 1973 and present Constitutions, the legislature may perform its con-ass function by simply proposing amendments to the Constitution when their similar provisions state that any amendment to, or revision, of the Constitution may be proposed by the legislature (National Assembly [under Art. XVI, Sec. 1(1), 1973 Constitution] and Congress [under Art. XVII, Sec. 1(1), 1987 Constitution]) upon a three-fourths vote of all its members. As observed by constitutional law expert Fr. Joaquin Bernas and echoed here already in a recent posting by Dean Jorge Bacobo, Congress is already a con-ass by virtue of Art. XVII, Sec. 1(1). Under the 1935 Constitution, Congress (which was also bicameral) must convene in joint session to be able to exercise its con-ass function. Even then, the Constitution expressly mandates that voting should be done separately by the Senate and House of Representatives. Also, under the Malolos Constitution, the President will have to dissolve the legislature and convoke a con-ass.

In other words, under the present Constitution, everytime Congress proposes amendments to the Constitution it switches to its con-ass function from its legislative function. Therefore, the passage of a resolution convening Congress into a con-ass, such as HR 1109, is unnecessary; a surplusage if you will. The only conceivable use of HR 1109 is to convene Congress in joint session for the Constitution itself makes it a con-ass everytime it proposes charter amendments.

Should Congress elect to perform its con-ass function, instead of passing the same to a constitutional convention, Fr. Bernas opines that this could be done under the normal legislative route, to wit: either house proposes amendments, debates on and approves them, and transmits the same to the other house for its similar consideration, which could either approve them in toto or with modification. In case of modification the differences will be reconciled in a bicameral conference. The proposed amendments from one house could also be disapproved or what amounts to the same thing by not acting on them. Whenever Congress assumes this function, the only difference from its legislative function is that the measures will have to be approved by a three-fourths vote and once carried, the proposals, instead of going to the President for approval, will go to the people in a plebiscite. Recall that House Speaker Prospero Nograles's HR 737, which proposes amendments to the Constitution's economic provisions, would have taken this route had the House pursued it instead of HR 1109.

But there is nothing that prevents Congress from acting in joint session whenever it performs its con-ass function. Although unlike the 1935 Constitution the present Charter does not require Congress to be in joint session, there is also nothing under Art. XVII that prevents Congress from doing this. The matter is entirely discretionary. The more contentious issue, however, is the manner of voting if and when Congress performs its con-ass function in joint session. HR 1109 congressmen insist that voting should be joint because with the non-inclusion in Art. XVII, Sec. 1(1), 1987 Constitution, of the phrase "voting separately," which is expressly required under the 1935 Constitution whenever Congress sits in joint session to propose Charter changes, the implication is that Congress is to vote without distinction between senators and congressmen. They further argue that unlike the 1935 Constitution which says "three-fourths vote of all the Members of the Senate and the House of Representatives," the present Charter merely states "three-fourths vote of all its [Congress] members" in mentioning the voting requirement.

Comparing the 1935 (Art. XV, Sec. 1) and 1987 (Art. XVII, Sec. 1(1)) provisions on constitutional amendments, one would readily see that in the former Congress must convene in joint session, while in the latter there is no such requirement. Since under the 1935 Constitution, Congress is required to be in joint session we find the phrase "voting separately" to affirm and ensure the bicameral nature of Congress. At present there is no need to include such phrase because there is no requirement for a joint session; as already mentioned Congress can become a con-ass through the normal legislative route. The same reason holds true why under the 1935 Constitution the Senate and the House were expressly metioned while under the present Charter only members of Congress is used, as regards the required votes. The fact that the present Charter uses the phrase "upon a three-fourths vote of all its Members" does not necessarily mean joint voting is required, because Congress does not vote jointly in granting tax exemption and when it concurs in the grant of amnesty by the president, and yet the Constitution states that such acts must be approved by a "majority of all the Members of the Congress."

Even when Congress is required by the Constitution to be in joint session separate voting is the rule. In Art. VI, Sec. 23, to declare a state of war, Congress must assemble in joint session and vote separately. In Art. VII, Sec. 4, Congress must be in joint session to canvass the votes for president and vice president and whenever two or more candidates shall have the equal and highest number of votes, separate voting is required to break the tie. Only when Congress, which must be in joint session, revokes or extends the declaration of martial law and suspension of the privilege of the writ of habeas corpus that joint voting is required.

If it weren't for the ulterior motives behind the moves to amend the Constitution and the flagrant disregard by the House of the firmly established principles of bicameralism, maybe there won't be so much noise and objections to amend the Constitution. It has been conceded already by experts that our present Constitution, perhaps driven by the desire to immediately draft a basic law that will address the needs of the country after just being freed from the shackles of authoritarianism, suffers from some defects and shortcomings that must clearly be addressed. Nonetheless, a sensible interpretation of the Constitution is still possible that will prevent us from falling on the precipice of national crisis.

We wouldn't be in this mess had the framers of the constitution studied the psyche of the of our politicians. After Marcos was ousted, we all thought that there would be genuine change. Well we know now that we were wrong. We opened the floodgates of hell. The con-con delegates did not realized that there is no such thing as decency and values in politics. They also failed to realize that politicians have ways of reinventing themselves so can continue looting the country. The also forgot that many more are waiting on the sidelines for their share of the Philippine pie.

Now we are in this situation that could turn the country upside down. Gloria and her gang will never stop until they achieve their goal. At least now we know that their objective is to save Gloria's neck. Straight from the ass's mouth, Raul Gonzales admitted that the illegitimate one is afraid to face the music when she steps down come 2010. And who could forget Rodolfo Antonino who admitted that their goal is to shift to the parliamentary system. Thanks to the statements of these two, the once uninformed, misinformed and even the cynical now understand the real situation.

Now I go back to the framers of the 1987 constitution. How I wished that they had been more realistic when they drew up the law of the land. How I wish they had taken into consideration that power corrupts and that those who have tasted it are bound to abuse it. If only they had been more studious with tbeir task. Now youcan see them on talk shows trying to explain their lack of foresight and their disregard for the realities of life.

I hope the next time around, we all learn from the lessons of the past and the facts of life.

Having been back from a workshop and a guest lecture invite from four Thai universities, it is time to reflect on how national priorities in science affects development. I visited Chulalongkorn, Thammasat, Katsetsart and Mahidol universities. The first is Thailand's oldest university and has a city campus in Bangkok. Its faculties are considered Thailand's most prestigious. Thammasat has its social sciences faculties near the Chao Phrya river and its sciences campus at Rangsit, north of Bangkok. Katsetsart is located in Bangkok and is the prime agricultural university. While Mahidol is known for the health sciences and is located in Salaya.

What I noticed is that each public university has centres for spurring national science development according to research priorities. Thammasat's Rangsit campus was first conceived in the 1980s as a venue to boost Thailand's scientific development. Similarly Kasetsart and Mahidol had similar facilities. Today Mahidol gets the biggest state allotment of 5 B baht a year, a majority of which goes into the graduate programs.

The University of the Philippines gets a slightly smaller appropriation 6 B pesos or 4.6 B baht a year but that is needed to support a university system of 7 campuses rather than a graduate program alone.

The Philippines and Thailand had the same level of national development in the 1970s with the Philippines having the edge in having a managerial and technical class proficient in English. The cliche is this" Thais were sent to study in UP Los Banos to find how to grow high yielding rice and now who imports rice?"

What has happened then? Thailand was able to leave the English speaking Filipinos eating the dust. Surely the disaster spawned by the Marcos regime is a big factor. However when the Marcoses were booted out, succeeding administrations should have been able to play catch up. But none did until the Gloria Macapagal Administration thought it was wise and prudent to invest just about 3 B pesos for the National Science Complex at UP. This was approximately 30 YEARS after Thailand did the same thing.

Despite Gloria Macapagal-Arroyo's faults and perceive faults, she is the only Philippine President that backed up her words to develop our science infrastructure with cash.

Thus Thailand is ahead from the Philippines in science and national development by about one generation. This is the same time that was needed to create Thai scientific capabilities in all aspects. Thai biomedical research in its schools of medicine have made great advances in tropical public health as well as cater to medical tourism. Each of the university hospitals can serve the Thais as well as the medical tourists that pay a premium for health care. And I need not emphasize agriculture, where Thailand made a breakthrough as early as the 1970s.

The development of science and technology is closely tied with basic education. While sending students to study for science advanced degrees overseas was a worthwhile strategy, Thailand never neglected its basic education sector and this can be seen in the well built schools that dot the countryside.

Thailand has its own political culture so akin to the Filipino and the social problems are in some extent similar. Despite this the Thais have succeeded in national development. There is a widespread acceptance that political stability is needed.

As for advancing science capability, Thailand's major universities are increasingly implementing ENGLISH language programs in the sciences, humanities and social sciences. Increasingly upper level undergraduate courses are taught in English and many graduate programs are in English. These programs don't cater for foreigners but to Thais. And increasingly many Thais now can speak good English. This is evidenced by the many international refereed publications churned out by Thai academics in all departments. In UP Diliman there are some departments with nary a publication!

As my Thai colleagues have pointed out, the University of the Philippines is going backwards. Instead of improving English language competency and programs, it still cannot resolve the debate on language. The Thais say that if the university abandons English in teaching, scientific development will be postponed by another generation.

"It's up to the individual senators to endorse it. But we will go on to the next stage - convening a constituent assembly - with or without them." Thus, cavalierly proclaims Nueva Ecija Representative Rodolfo Antonino when asked about the next steps to be taken after the House of Representatives passed the much disdained HR 1109 - a resolution seeking to convene Congress into a constitutent assembly to propose amendments to the Constitution.

As if many have not spoken yet - expressing objections to HR 1109 from mild rebuke to raging outrage, that even led Jesus Is Lord (JIL) head Eddie Villanueva to call the legislators who approved the measure as terrorists and one blogger to compare them with the 9/11 terrorists - congressmen like Antonino, led by House Speaker Prospero Nograles, are still bent on their brazen attempt to introduce changes to our basic law by proceeding with their convoluted view that the House could do it alone.

As we have feared in previous postings, the majority in the House is now moving toward the most stupid thing to do by unilaterally acting to propose amendments to the Constitution. Congressman Mauricio Domogan of Baguio City minced no words when he said that the House will start with the charter change process before President Arroyo gives her State of the Nation address when Congress resumes session in July. The theory that Domogan and Antonino, the proponents' mouthpieces, are pursuing is that only a simple majority is needed to convene Congress into a constitutent assembly and that by the sheer number of those who approved HR 1109 - the gang of 174 - they already achieved sufficient votes for this purpose, thereby negating the need for the senators' votes. Yes, you got that right, these geniuses are actually saying that the Senate does not matter; in fact they intend to send HR 1109 to the individual senators, instead of the Senate as a body, as a token gesture to give them a chance to participate. So much for bicameralism. Even as now they have already amended the Constitution!

So now we can see a bifurcated process unfolding: (1) convening Congress into a constituent assembly, requiring only a simple majority and (2) proposing amendments to the Constitution, requiring three-fourths vote. According to the proponents, in both cases the senators' votes are inconsequential as the House membership alone can muster the needed votes. The grotesqueness of this is readily apparent. How can HR 1109 alone - a pure act of the Lower House - become the decision of Congress that is composed of not only the House but the Senate as well? As we have been repeatedly saying a two-chamber Congress, with limited exceptions, can only act with both Houses acting in concert. And sending HR 1109 to individual senators for their signatures will not satisfy this legal requirement even if majority of them were to sign it, since the acts of the senators could only constitute as an act of the Senate if they are acting as one body, in session assembled.

In addition, as pointed out by Fr. Joaquin Bernas, no further act is necessary to convene Congress into a constituent assembly as it is already constituted as such by virtue of Article XVII, Section 1 of the Constitution. Let me just add that Congress is automatically set in a constituent assembly mode from a purely legislative mode whenever it proposes amendments to the Constitution, even in accordance with the normal legislative route. A joint session is not even essential because what will characterize Congress as a constituent assembly is the act of introducing changes to the Constitution, for the word "constituent" refers to the power to frame a fundamental law or constitution and to introduce changes to it, as opposed to the exercise of mere legislative powers which refers to the enactment or amendment of statutes. What the Constitution only requires is that a three-fourths vote, compared to a simple majority in enacting laws, is necessary to approve the amendments and ratification by the people in a plebiscite to make them binding.

Be that as it may, nothing - legally, that is - will as yet prevent the House from proceeding. As soon as the House reconvenes, it can start proposing amendments. It can perfectly do this in accordance with Congress's power to propose amendments to the Constitution under Article XVII, Section 1. But there is a big "but." Such act would only be the sole act of the Lower House that will have to be transmitted to the Senate for its approval. Given Domogan and Antonino's statements, however, the House would proceed with step two of the bifurcated proceedings by sticking to its absurd logic that the convening of Congress into a constituent assembly (joint session is more like it) has already been approved and, therefore, the House members would be acting or representing Congress as a whole when they start deliberating and approving amendments to the Constitution in July. It's like telling the senators, "Congress is now convened into one and ready to amend the Constitution. It's up to you if you want to join or not," with the addendum, "either way, we have the votes to approve the amendments."

But why is this obssession and unwavering insistence despite the strong public outrage against charter change? How could these congressmen not heed the public sentiment and risk political suicide? It is obvious that these congressmen, a lot of them lawyers and veterans of Congress, know that without the Senate an act of the House alone cannot pass constitutional muster, and yet there is this sinister confidence to proceed. I would concede there can be a valid debate between joint and separate voting, but to say that a joint session - the vehicle to jumpstart the debate - of both Houses could be achieved by HR 1109 alone would be the height of stupidity that does not even merit the passing attention of the Supreme Court.

The majority in the House might have just stumbled and bared its ulterior motive in following and revealing an absurd theory. Domogan and Antonino's statements may have just revealed that all this fuzz about forcing a justiciable controversy is but a smokescreen for something bigger. The stupidity of their position with which they are so confident, coupled by their indifference to the public sentiment, are sending dangerous signals that something terrible is in the offing. Take note, this adamance - which is becoming exceedingly clear as deliberate - is stoking the fire of discontent and as I write this, preparations are underway for massive protests and rallies. The hubris is simply alarming. Nuff said.

The complete list of signatories to House Resolution No. 1109 follows below. These are dangerous people who do not know what they are leading this nation into. They should not be voted back into office in 2010. Mark them as NEO-FASCISTS for that is what they are!

ABANTE, BIENVENIDO M. "BENNY" 6TH District Pandacan
ABLAN, ROQUE R. JR, Ilocos Norte, 1st District
AGBAYANI, VICTOR AGUEDO E. Pangasinan, 2nd District
AGYAO, MANUEL, S Kalinga Province
ALBANO (III), RODOLFO T. Isabela, 1st District
ALFELOR, FELIX R. JR. 4th District, Camarines Sur
ALMARIO, THELMA Z. Davao Oriental, 2nd District
ALVAREZ, ANTONIO C. Palawan 1st District
ALVAREZ, GENARO RAFAEL M. JR. Negros Occidental, 6th District
AMANTE, EDELMIRO A. Agusan Del Norte, 2nd District
AMATONG, ROMMEL C. Compostela Valley, 2nd District
ANGPING, MARIA ZENAIDA B. Manila, 3rd District
ANTONINO, RODOLFO W. Nueva Ecija, 4th District
APOSTOL, TRINIDAD G. Leyte, 2nd District
AQUINO, JOSE S. (II) 1st District Agusan del Norte
ARAGO, MARIA EVITA R. 3rd district, Laguna
ARBISON, A MUNIR M. Sulu 2nd District
ARENAS, MA. RACHEL J. Pangasinan, 3rd District
ARROYO, DIOSDADO M. Camarines Sur, 1st District
ARROYO, IGNACIO T. 5th district Negros Occidental
ARROYO, JUAN MIGUEL M. 2nd District of Pampanga
BAGATSING, AMADO S. Manila 5th district
BALINDONG, PANGALIAN M. Lanao del Sur, 2nd District
BARZAGA, ELPIDIO F. JR. Cavite, 2nd District
BAUTISTA, FRANKLIN P. Davao Del Sur, 2nd District
BELMONTE, VICENTE F. JR. Lanao del Norte, 1st District
BICHARA, AL FRANCIS C. Albay, 2nd District
BIRON, FERJENEL G. Iloilo, 4th District
BONDOC, ANNA YORK P. Pampanga 4th District
BONOAN-DAVID, MA. THERESA B. Manila, 4th District
BRAVO, NARCISO R. JR. Masbate, 1st District
BRIONES, NICANOR M. AGAP Party list
BUHAIN, EILEEN ERMITA Batangas, 1st District
BULUT, ELIAS C. JR. Apayao Lone District
CAGAS (IV), MARC DOUGLAS C. Davao Del Sur, 1st District
CAJAYON, MARY MITZI L. Caloocan, 2nd District
CAJES, ROBERTO C. Bohol, 2nd District
CARI, CARMEN L. Leyte, 5th District
CASTRO, FREDENIL H. Capiz, 2nd District
CELESTE, ARTHUR F. Pangasinan, 1st District
CERILLES, ANTONIO H. Zamboanga Del Sur, 2nd District
CHATTO, EDGARDO M. Bohol, 1st District
CHONG, GLENN A. Biliran, Lone District
CHUNG-LAO, SOLOMON R. Ifugao, Lone District
CLARETE, MARINA C. Misamis Occidental, 1st District
CODILLA, EUFROCINO M. SR. Leyte, 4th District
COJUANCO, MARK O. Pangasinan, 5th District
COQUILA, TEODULO M. Eastern Samar, Lone District
CRISOLOGO, VINCENT P. Quezon City, 1st District
CUA, JUNIE E. Quirino, Lone District
CUENCO, ANTONIO V. Cebu City, 2nd District
DANGWA, SAMUEL M. Benguet, Lone District
DATUMANONG, SIMEON A. Maguindanao, Lone District
Dayanghirang, Nelson L. Davao Oriental, 1st District
DAZA, NANETTE C. Quezon City, 4th District
DAZA, PAUL R. Northern Samar, 1st District
DE GUZMAN, DEL R. Marikina City, 2nd District
DEFENSOR, ARTHUR D. SR. Iloilo, 3rd District
DEFENSOR, MATIAS V. JR. Quezon City, 3rd District
DEL MAR, RAUL V. Cebu City, 1st District
DIASNES, CARLO OLIVER D. (MD) Batanes, Lone District
DIMAPORO, ABDULLAH D. Lanao Del Norte, 2nd District
DOMOGAN, MAURICIO G. Baguio, Lone District
DUAVIT, MICHAEL JOHN R. Rizal, 1st District
DUENAS, HENRY M. JR. Taguig, 2nd District (2nd Councilor District)
DUMARPA, FAYSAH MRP. Lanao del Sur, 1st District
DUMPIT, THOMAS L. JR. La Union, 2nd District
DURANO (IV), RAMON H. 5th District, Cebu
ECLEO, GLENDA B. Dinagat Islands, Lone District
EMANO, YEVGENY VICENTE B. Misamis Oriental, 2nd District
ENVERGA, WILFRIDO MARK M. Quezon, 1st District
ESTRELLA, CONRADO M. (III) Pangasinan, 6th District
ESTRELLA, ROBERT RAYMUND M. ABONO Party List
FERRER, JEFFREY P. Negros Occidental, 4th District
GARAY, FLORENCIO C. Surigao Del Sur, 2nd District
GARCIA, ALBERT S. Bataan, 2nd District.
GARCIA, PABLO JOHN F. Cebu, 3rd District
GARCIA, PABLO P. Cebu, 2nd District
GARCIA, VINCENT J. Davao City, 2nd District
GARIN, JANETTE L. Iloilo, 1st District
GATCHALIAN, REXLON T. Valenzuela City, 1st District
GATLABAYAN, ANGELITO C. Antipolo City, 2nd District
GO, ARNULFO F. Sultan Kudarat, 2nd District
GONZALES, AURELIO D. JR. Pampanga 3rd District
GONZALES, RAUL T. JR. Ilo ilo City
GULLAS, EDUARDO R. Cebu, 1st District
GUNIGUNDO, MAGTANGGOL T. Valenzuela City 2nd District
HOFER, DULCE ANN K. Zamboanga Sibugay, 2nd District
JAAFAR, NUR G. Tawi-Tawi, Lone District
JALA, ADAM RELSON L. Bohol, 3rd District
JALOSJOS, CESAR G. Zamboanga del Norte, 3rd District
JALOSJOS-CARREON, CECILIA G. Zamboanga del Norte, 1st District
JIKIRI, YUSOP H. Sulu, 1st District
KHO, ANTONIO T. Masbate, 2nd District
LABADLABAD, ROSENDO S. Zamboanga del Norte, 2nd District
LACSON, JOSE CARLOS V. Negros Occidental, 3rd District
LAGDAMEO, ANTONIO F. JR. Davao del Norte, 2nd District
LAPUS, JECI A. Tarlac, 3rd District
LAZATIN, CARMELO F. Pampanga, 1st District
LIM, RENO G. Albay, 3rd District
LOPEZ, JAIME C. Manila, 2nd District
MADRONA, ELEANORA JESUS F. Romblon, Lone District
MAGSAYSAY, MARIA MILAGROS H. Zambales, 1st District
MALAPITAN, OSCAR G. Caloocan, 1st District
MAMBA, MANUEL N. Cagayan, 3rd District
MANGUDADATU, DATU PAKUNG S. Sultan Kudarat,
MARANON, ALFREDO D. III Negros Occidental, 2nd District
MATUGAS, FRANCISCO T. Surigao del Norte, 1st District
MENDOZA, MARK LEANDRO L. Batangas, 4th District
MERCADO, ROGER G. Southern Leyte, Lone District
MIRAFLORES, FLORENCIO T. Aklan, Lone District
NAVA, JOAQUIN CARLOS RAHMAN A. (MD) Guimaras, Lone District
NICOLAS, REYLINA G. Bulacan, 4th District
NOGRALES, PROSPERO C. Davao City, 1st District
OLAñO, ARREL R. Davao Del Norte, 1st District
ONG, EMIL L. Northern Samar, 2nd District
ORTEGA, VICTOR FRANCISCO C. La Union, 1st District
PABLO, ERNESTO C. APEC Party List
PANCHO, PEDRO M. Bulacan, 2nd District
PANCRUDO, CANDIDO P. JR. Bukidnon, 1st District
PICHAY, PHILIP A. Surigao Del Sur, 1st District
PIñOL, BERNARDO F. JR. North Cotabato, 2nd District
PUNO, ROBERTO V. Antipolo City, 1st District
RAMIRO, HERMINIA M. Misamis Occidental, 2nd District
REMULLA, JESUS CRISPIN C. Cavite, 3rd District
REYES, CARMELITA O. Marinduque, Lone District
REYES, VICTORIA H. Batangas, 3rd District
ROBES, ARTURO G. San Jose Del Monte City, Lone District
Rodriguez-Zaldarria ga, Adelina Rizal, 2nd District
ROMAN, HERMINIA B. Bataan, 1st District
ROMARATE, GUILLERMO A. JR. Surigao del Norte, 2nd District
ROMUALDEZ, FERDINAND MARTIN G. Leyte, 1st District
ROMUALDO, PEDRO Camiguin, Lone District
ROMULO, ROMAN T. Pasig City, Lone District
ROXAS, JOSE ANTONIO F. Pasay City
SALIMBANGON, BENHUR L. Cebu, 4th District
SALVACION JR., ANDRES D. Leyte, 3rd District
SAN LUIS, EDGAR S. Laguna, 4th District
SANDOVAL, ALVIN S. Malabon-Navotas, Lone District
SANTIAGO, JOSEPH A. Catanduanes, Lone District
SANTIAGO, NARCISO D. (III) ARC Party List
SEACHON-LANETE, RIZALINA L. 3rd district of Masbate
SEARES-LUNA, CECILIA M. Abra, Lone District
SILVERIO, LORNA C. Bulacan, 3rd District
SINGSON, ERIC D. Ilocos Sur, 2nd District
SINGSON, RONALD V. Ilocos Sur, 1st District
SOLIS, JOSE G. Sorsogon, 2nd District
SOON-RUIZ, NERISSA CORAZON Cebu, 6th District
SUAREZ, DANILO E. Quezon, 3rd District
SUSANO, MARY ANN L. Quezon City, 2nd District
SY-ALVARADO, MA. VICTORIA R. Bulacan, 1st District
SYJUCO, JUDY J. 2nd Dsitrict, Iloilo
TALINO-MENDOZA, EMMYLOU J. North Cotabato, 1st District
TAN, SHAREE ANN T. Samar, 2nd District
TEODORO, MARCELINO R. Marikina City, 1st District
TEODORO, MONICA LOUISSE PRIETO Tarlac, 1st District
TEVES, PRYDE HENRY A. Negros Oriental, 3rd District
TUPAS, NEIL C. JR. Iloilo, 5th District
UNGAB, ISIDRO T. Davao City, 3rd District
UY, EDWIN C. Isabela, 2nd District
UY, REYNALDO S. Samar, 1st District
UY, ROLANDO A. Cagayan De Oro City, Lone District
VALDEZ, EDGAR L. APEC Party List
VALENCIA, RODOLFO G. Oriental Mindoro, 1st District
VARGAS, FLORENCIO L. Cagayan, 2nd District
VILLAFUERTE, LUIS R. Camarines Sur, 2nd District
VILLAROSA, MA. AMELITA C. Occidental Mindoro, Lone District
VIOLAGO, JOSEPH GILBERT F. Nueva Ecija, 2nd District
YAP, JOSE V. Tarlac, 2nd District
YU, VICTOR J. Zamboanga Del Sur, 1st District
ZAMORA, MANUEL E. 1st District, Compostela Valley
ZIALCITA, EDUARDO C. Parañaque, 1st District

Above are some pictures I took at the 2nd ANC Presidential Debate, which was held at the UP School of Economics, Diliman Quezon City. The event opened dramatically enough with an airing of Ping Lacson's withdrawal from the Presidential race, thought to be due to the arrival of the extradited Cesar Mancao and the beginning of a great deal of legal troubles for him. NOT attending tonight's event either were front runners NOLI DE CASTRO and MANNY VILLAR. Present were former President Joseph Estrada, Senator Loren Legarda, MMDA Chairman Bayani Fernando and Makati Mayor Jojo Binay. I'll reserve my comments for the Comment Thread and on the Facebook Presidential debate group. Cheers!

Congressmen who have been assiduously pushing for Charter change (Cha-cha) via Congress acting as a Constituent Assembly have firmly set their sights on forcing a joint voting by all members of Congress, thus removing the distinction between senators and representatives. This intention, which has long been made public, has finally been formalized by the majority in the House of Representatives with the haphazard adoption of House Resolution 1109 last Tuesday.

But the trigger, if you will, cannot as yet be pulled since the bullet that will hit the target is still unavailable. The mere passage of HR 1109, although feared by many as a prelude to the railroading of amendments to the Constitution, is not enough to achieve the House's objective of creating a justiciable controversy that will bring the Supreme Court in for the purpose of ruling on the methodology of voting. As everyone who understands how our system of government functions already knows, the House alone cannot convene Congress in joint session because the Senate, which is equally a part of Congress, must concur.

The issue on joint or separate voting can only arise when the Senate agrees to sit with the House in joint session. Unfortunately for the House, the majority and minority blocs in the Senate have already signified their unanimity to oppose the House's efforts; in fact, even before HR 1109 there is already that disinterest to join by the Senate in apparent awareness of the House's dark scheme to outvote the senators in a joint session. But time is running out for the ruling party since elections are just around the corner so, despite the impediments and the expected firestorm of public outrage, the House proceeded with the plan and adopted HR 1109 in the hope that someone, like lawyer Oliver Lozano, will file a petition before the Supreme Court to thresh out the voting issue. But this petition is expected to fail for prematurity.

A reading of HR 1109, particularly its whereas clauses, clearly shows that voting jointly or seprately is what the majority in the House want to be settled. And the majority's position, of course, is that voting should be done jointly, which they justify by saying that the non-inclusion in Article XVII, Section 1 of the 1987 Constitution of the phrases "in joint session assembled" and "the Senate and the House of Representatives voting separately," as found in the 1935 Constitution, conveys the intention that voting on the amendments should now be undertaken jointly. More on this in subsequent postings.

So why the obsession on this mode of voting? The number of representatives is clearly superior to that of the senators. If the numbers are correct, there are reported 275 representatives and 23 senators. Lumping them together under one roof we have a total of 298 legislators. Three-fourths vote is necessary to approve any amendment, so if the mode of voting be joint then all that is needed is 224. Since there are 275 representatives they can very well outvote all 23 senators, assuming only 51 representatives do not follow suit. Fr. Joaquin Bernas calls this drowning senators in a sea of House votes.

But what assurance does the House have in getting a favorable decision from the Supreme Court, if and when it is finally able to bring the issue to the Court? The administration hopes to fill all the vacancies in the High Court, that will be created with the retirement of a number of justices before President Arroyo's term expires, with appointees who will render a favorable decision. With the retirement of Justices Dante Tigna and Alicia Austria-Martinez, allegations are already flying high that Malacañang's unseen hand is working for the appointment of lawyer Rodolfo Robles, who is said to have close ties with the Macapagals. Another aspirant who is seen as a Malacañang favorite is Solicitor General Agnes Devanadera who, like Robles, favors joint voting.

After having said all these, House Speaker Prospero Nograles and company will still have to devise more creative ways on how to properly bring the issue of joint or separate voting before the Supreme Court. With opposition from a Senate that is afraid to ride against the storm of public criticism on Cha-cha, the vehicle - a joint session of both Houses under the nomenclature Constituent Assembly - is still elusive. We will see how Nograles convinces his colleagues in the Senate when he meets with them about HR 1109.

It's not Con-Ass we ought to worry about.  It's Martial Law and No Elections in 2010.   Under the 1987 Constitution, if President Arroyo were to suspend the Writ of Habeas Corpus or declare Martial Law, the members of Congress, voting in joint session as one body with no distinction between House and Senate, may revoke such proclamation, or in the same manner, uphold and extend such proclamation.  Thus what we may have witnessed at the Bastusang Pambansa last Tuesday night with the ramrodding of Con-Ass Resolution 1109,  was actually a Full Dress Rehearsal for a future Joint Session of Congress to revoke or uphold a suspension of the Writ of Habeas Corpus or a Declaration of Martial Law.   Note that 1987's brilliant innovation can be exercised by the Members of the Congress meeting in JOINT SESSION, with  the power to immediately revoke OR to indefinitely extend  a presidential declaration of Martial Law or a suspension of the Writ of Habeas Corpus.  If such a proclamation happens before the 2010 elections, it would be these very same Congressmen who will be holding that future session.  Moreover, there is none of that Constitutional ambiguity that attends the chacha provision. Here it is explicitly clear: JOINT VOTING. 

1987 Article 7 Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.

The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

Now, many people believe that the 1987 Constitution is a deeply flawed document on many counts. It is floridly verbose in certain parts, while in others, risibly terse, as in the Chacha provision. But if there was anything this Constitution was touted to do, it was supposed to help prevent the rise of another fascist dictator like Ferdinand Marcos and to blunt the abuse of of Executive weapons like suspending the Writ of Habeas Corpus and imposing Martial Law. But one cannot fail to be alarmed by this provision after watching the recent career of President Arroyo cuckolding a Lower House full of dirty old congressmen and getting them to march in locked goose step to her hidden baton.

Given how shaky the legal ground is under their feet on Chacha, and how comparably solid it is on the matter of Martial Law, it is not unreasonable to suppose that one is just being used  to ignite the conditions for the imposition  of the other.  An all-Gloria Supreme Court rounds out the Hallelujah Scenario ("and she shall reign forever and ever!") 

There are many opportunities that could arise in the next year for emergency rule of some kind to discombobulate the campaign and the elections themselves.  There are epidemic threats, insurgent threats, terrorist threats, people power threats, global economic threats and natural disasters that could all arise to justify it.  And if necessary such triggering events could also be concocted, for example an assassination attempt against the President or her immediate family.

It would seem from last Tuesday's developments, that should such a need or opportunity arise and other measures to save the President fail, there is at least a honed and practiced machinery in the HoR for delivering a vote in her favor, no matter what.

OR WHY THE LOZANO SUIT WILL BE DISMISSED FOR PREMATURITY IN A MINUTE RESOLUTION.

Surprise, surprise!  Lawyer  Oliver Lozano  has just filed a case with the Supreme Court of the Philippines (SCoRP) over House Resolution 1109.  In a taxpayer suit, he states that, 

“The railroaded HR 1109 is unconstitutional or bogus for deviation from the prescribed procedures to amend the Constitution by excluding the Senate of the Philippines from the complete process of proposing amendments to the Constitution and for lack of thorough debates and consultations.”

The garbled heart of the assailed House Resolution No. 1109 approved just last night in a familiar marathon session states:

“NOW THEREFORE, BE IT RESOLVED, THAT THE MEMBERS OF CONGRESS BE CONVENED FOR THE PURPOSE OF PROPOSING AMENDMENTS TO, OR REVISION OF THE CONSTITUTION UPON A VOTE OF THREE-FOURTHS OF ALL ITS MEMBERS THAT UPON ITS BEING CONVENED SHALL ADOPT ITS RULES OF PROCEDURES THAT SHALL GOVERN ITS PROCEEDINGS.”

In effect all H.Res.1109 does is express the sense of the House that the Congress ought to convene into a Constituent Assembly and adopt some Rules for proposing changes to the charter.

Indeed, the House leadership has said it would forward H.Res.1109 to the Senate for its approval and adoption, and the possible promulgation of a Joint and Concurrent Resolution convening the Congress into a Constituent Assembly.

TRULY, the hardest thing for human beings to see, is what is right in front of their eyes. I must thank Fr. Joaquin Bernas for the title of this post, since it is a direct quotation of something he just said to Tony Velasquez on the early evening news. Fr. Bernas could not have produced a more pertinent and succinct translation of the controversial 1987 provision which states

ART. 17 Sec. 1. Any amendment to or revision of this Constitution may be proposed by the Congress, upon a vote of three fourths of all its Members.

It ought to be obvious, though it is not to most, that because the Congress can propose amendments or revisions right now, it is in fact already convened as a Constituent Assembly. Moreover the present House and Senate Rules merely stipulate that any such proposed amendment or revision undergoes the normal process of passing legislation, i.e., with both House and Senate approving the same using a three fourths majority rule, as required by the Constitution.  

Of course, for a mere House Resolution to be disdainfully silly and superfluous does not make it unconstitutional.  Indeed it does not appear that Oliver Lozano's suit can prosper and will probably meet the same fate as that of an almost identical suit by Rep. Adam Relson Jala which the Supreme Court dismissed as premature last October saying: 

The Supreme Court recently dismissed on the ground of prematurity a petition filed by a member of the House of Representatives urging the Court to direct the House to validate joint voting of the members of the Congress, acting as a constituent assembly, in adopting amendments to or revision of the Constitution.

In a one-page minute resolution, the Court En Banc dismissed the petition for certiorari, prohibition, and/or mandamus filed by Congressman Adam Relson L. Jala of the 3rd District of Bohol against the House of Representatives, challenging the constitutionality of the Rule XX, Section 140 of the Rules of the House of Representatives which deals with the procedure to be followed by the House as regards proposals to amend or revise the Constitution.

On August 13, 2008, Jala has filed House Resolution No. 730 “TO CONSTITUTE THE SENATE AND THE HOUSE OF REPRESENTATIVES INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF DRAFTING AND PROPOSING AMENDMENTS TO, OR REVISION OF, THE 1987 CONSTITUTION PARTICULARLY TO ESTABLISH A UNICAMERAL CONGRESS.” The Resolution underwent first reading on August 26, 2008 in accordance with the foregoing House Rules. Jala contended that the adoption of the rules and the filing of the resolution fulfilled the requisites for the ripeness and maturity of his petition.

In his petition, Jala also alleged that the assailed provision of the House Rules, which states that “the adoption of resolutions proposing amendments to or revision of the Constitution shall follow the procedure for the enactment of bills,” is violative of the Constitution as the provision requires three-fourths (3/4) votes of all the members of the Congress, voting separately.

Jala maintained that the plain language of the Constitution “only requires three-fourths vote of all the Members of the Congress to adopt the said proposals or revisions as a constituent assembly. This means that the Constitution simply requires a JOINT VOTING.”

Jala contended in acting as a constituent assembly, the bicameral nature of the legislature would no longer apply because it would not be exercising its ordinary legislative powers anymore. He added that to interpret the constitutional provision on amendments and revisions in the context of a bicameral body would be unwarranted, as the power to act as a constituent assembly is a constitutional grant and, as such, “must be strictly construed in accordance with the constitutional provision granting such power and may not be interpreted using principles outside the scope of the constitutional provision itself."

Jala therefore prayed that Rule XX, Section 140 of the Rules of the House of Representatives adopted on November 20, 2007 be declared unconstitutional, and that “the Court issue an order directing the House of Representatives that House Resolution No. 730 proceed under Article XVII of the Constitution, validating joint voting in adopting resolutions proposing amendments to or revisions of the Constitution.” (Min. Res. GR No. 184426 , Jala v. House of Representatives, October 7, 2008)

WILL LOZANO'S SUIT MEET THE SAME FATE?

Most likely it will. Until a number of Members of Congress, equalling three fourths or more of the 299 that the SCoRP decided is contained within the Congress (Banat v. Comelec) actually propose a revision or amendment without both House and Senate concurring separately, I do not see anyone committing or proposing to commit a violation of the Constitution.

Moreover, SCORP cannot rule on a hypothetical set of Rules not yet specified or adopted by a hypothetical Constituent Assembly that has not yet been established by the Congress, has not been convened, and may never be.  And is not in the present Budget for funding.

Indeed, the same Rules of the House of Representatives that Jala sought to invalidate as unconstitutional, are plainly in compliance with the Constitution and have been duly adopted by the House and Senate, voting separately as every Bicameral Legislature does. 

I predict another SCORP Minute Resolution dismissing the latest Oliver Lozano gimick-suit for PREMATURITY.

Recently, legislator-turned-blogger Mon Palatino (courtesy of the Supreme Court in the Banat case) warned that the Right of Reply Bill (RORB) will affect bloggers and writers in other internet-based platforms, such as social networking sites, once it passes into law. Temporarily sidelined by the passage of House Resolution 1109, which calls for the convening of Congress into a constituent assembly to propose amendments to the Constitution, the RORB is one of the measures in the Lower House's high priority agenda.

Originally introduced in the Senate by veteran street parliamentarian Sen. Aquilino Pimentel, Jr., Senate Bill No. 2150 requires media organizations under pain of sanctions to provide print space or broadcast time, free of charge, to the accused or criticized person in the same space or program where the accusation or criticism was made.


The flurry of oppositions and criticisms that the bill is receiving is not surprising, considering the serious implications it will have on the right to free speech and press freedom. And no matter how insistent Senator Pimentel is in defending his pet measure by claiming that it engenders rather than inhibits speech by allowing the objects of press accusations and criticisms the opportunity to counter the charges against them, the bill – no matter how well-intentioned by one who had undoubtedly vigorously fought an authoritarian regime notable for its suppression of free speech – presents clear restraints on press freedom that are hard to ignore.

The U.S. case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) is instructive in determining the constitutionality of the bill. This case was about a candidate for the Florida House of Representatives who was the subject of adverse editorials in the Miami Herald newspaper. When the newspaper refused to publish the candidate’s replies to the editorials he sued claiming a “right of reply” under a Florida statute. The Florida statute substantially provides that if any newspaper assails the personal character of any candidate, such newspaper shall upon request of the candidate immediately publish free of cost any reply he may make.

In ruling that the Florida statute violates the First Amendment’s guarantee of a free press, the U.S. Supreme Court held that government compulsion on a newspaper to publish that which reason tells it should not be published is unconstitutional. The statute was considered as a command by the State in the same sense as a statute or regulation forbidding the publication of specified matter. In other words, the U.S. Supreme Court was essentially saying that a law dictating the publication of certain matters is similar to one that prohibits their publication, which as a rule is clearly prohibited as unlawful restraint on free speech.

The U.S. Supreme Court also found the statute to exact penalties on newspapers by imposing additional printing, composing, and materials cost and by taking up space that would otherwise be devoted by newspapers to matters they prefer to print. And even if no such penalty attends the allowance of print space to persons claiming their right of reply, the U.S. Supreme Court reasoned that the statute intrudes into the function of editors in choosing what material goes into a newspaper, in deciding on the content and size of the newspaper and the treatment of public officials and issues.

The chilling effect of such regulation cannot also be taken for granted. As observed by the U.S. Supreme Court, “(f)aced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute, editors might well conclude that the safest course is to avoid controversy . . . Government-enforced right of access inescapably “dampens the vigor and limits the variety of public debate.”

While this case is not binding on our courts, it is nevertheless persuasive. Historically and by practice, our own Supreme Court has on numerous occasions looked upon American jurisprudence in deciding constitutional issues, especially when it comes to free speech cases in view of the fact that Article 3, Section 4 of our Constitution – our constitutional guarantee on freedom of speech, of expression and of the press – is almost a verbatim copy of the free speech clause in the First Amendment to the U.S. Constitution.

Senate Bill No. 2150 clearly violates press freedom by forcing under penalty of law the printing or broadcasting of matters that editors or publishers of print and broadcast media may not agree with or prefer to publish. Requiring media outlets to publish or broadcast materials from persons claiming to have been aggrieved by their adverse writing or reporting is in effect meddling with the editorial discretion of said media; it would virtually make the government inject itself in newsrooms and participate in the essential task of editors in determining what to print or publish.

If this bill were to become law, one could only imagine the volume of requests coming from the government and public officials to be given print space in newspapers, airtime or spots on radios and televisions, to rebut every adverse reports against them – which are not few, I should add.
In a very real sense, the print and broadcast media will be running short of print space and airtime just to accommodate, for free, these rebuttals, else they will be penalized with monetary fines ranging from P10,000 to P30,000 for every denied request.

To avoid such inconveniences and penalties, the print and broadcast media will limit themselves to printing and broadcasting non-controversial matters or issues that do not involve accusations of criminal activity or criticisms for “lapse in behavior,” as the bill words it. This will effectively chill the exercise of free speech and prevent what the U.S. Supreme Court said in the famous case of New York Times v. Sullivan that debate on public issues should be “uninhibited, robust, and wide-open.”

Another questionable feature of the proposed law is its vagueness. Section 1 of the bill grants the right of reply to persons who have been criticized for lapse in behavior. What would constitute “lapse in behavior”? If I were to criticize Sen. Miriam Defensor-Santiago for laughing out too loud when giving media interviews or Jesus Dureza for praying for the extension of GMA’s term, would that be criticism for lapse in behavior?A statute seeking to regulate speech that is vague offends not only the freedom of speech, but also the right to due process. People ought to know what is a prohibited activity in clear and precise language so that they will know what activity they will refrain from doing. A vague statute seeking to regulate speech acquires special significance because if people do not know what speech is prohibited they will refrain from speaking altogether for fear that they might violate the law.

While a responsible press is undoubtedly important and people should be given the opportunity to rebut unfair charges against them, these considerations cannot, however, trump the right to a free press and free speech in general. Needless to say, individuals aggrieved by false and defamatory reports are not without legal recourse. That our judicial institutions do not deliver in seeking redress cannot override our most fundamental liberty in a democratic and republican government. In such case, rather than making press freedom the casualty strengthening of the judicial system should be the target.

HOUSE RESOLUTION NO. 1109 has been adopted by the Lower House. It's disposative section states:

NOW THEREFORE, BE IT RESOLVED, THAT THE MEMBERS OF CONGRESS BE CONVENED FOR THE PURPOSE OF PROPOSING AMENDMENTS TO, OR REVISION OF THE CONSTITUTION UPON A VOTE OF THREE-FOURTHS OF ALL ITS MEMBERS THAT UPON ITS BEING CONVENED SHALL ADOPT ITS RULES OF PROCEDURES THAT SHALL GOVERN ITS PROCEEDINGS.

As Rep. Luis Villafuerte told Ricky Carandang following the vote, the entire purpose of H. Res. No. 1109 is to trigger a "justiciable controversy" which will cause the the Supreme Court to rule on the following 1987 Constitutional provision which some people want you to believe that the following statement is "ambiguous"--

ART 17 Sec. 1. Any amendment to, or revision of this Constitution, may be proposed by the Congress upon a vote of three fourths of all its Members;

They want you to believe that it is ambiguous because they actually want the Supreme Court to decide what the Constitution means by this simple declarative sentence--after the President gets seven more chances to populate it with willing sycophants.

But it is NOT the case that one of the two alternatives, joint or separate voting on proposed charter changes, is unconstitutional, since either mode can comply with the three fourths majority requirement. Either mode is constitutional. There is naothing for the Supreme Court to decide. It is not that kind of ambiguity. It is up to the Congress to dacecide in its own discretion, which mode to use, not for the Supreme Court to decide which is bigger, half a dozen of one or six of the other!

In my opinion there is NO ambiguity to the fact that "the Congress" (NOT the House, nor the Senate, nor the Members of the Congress) is here granted the power to propose any amendment or revision to the Charter. HOW it is to comply with the three fourths majority rule requirement for approving such proposals is, most emphatically, entirely in the discretion of the Congress. There is no deep or hidden meaning in this plain language for the Supreme Court to debate upon, or discern, or adjudicate. The Constitution simply provides "the Congress" with the power to propose charter changes as long as it obeys the three fourths majority rule.

Thus, it is indubitably Constitutional for the Congress to adopt either VOTING JOINTLY as the House Majority is suddenly insisting upon as a last desperate chachachero dance, or VOTING SEPARATELY as the House and Senate have put in their Rules until this very day! Let me repeat: voting jointly or voting separately complies with the three fourths majority rule, so either mode would be Constitutional.

The important and perhaps subtle point that lots of people have missed, is that the Constitution leaves it entirely up to the Congress HOW it will exercise "constituent power" (the power to propose changes) whilst complying with the numerical majority requirement.

Now for the coup d'grace: although "the Congress" could conceivably decide to adopt the joint voting mode and ignore the difference between Senate and House membership, it can only ever come to this decision by first voting upon it in the default mode by which the Congress does anything--by having the House and Senate separately approve the same by a simple majority vote!

There are in fact a myriad number of ways conceivable for the Congress to approve proposed charter changes whilst complying with the three fourths majority rule. But every single one of these completely Constitutional modes can only be approved by "the Congress" in its default mode: House and Senate voting separately!

So once and for all, ladies and germs: the Supreme Court has nothing to decide or adjudicate in Article 17 Sec. 1. The Constitution is not ambiguous about Charter Change. It gives to the Congress all the powers and prerogatives to decide HOW it will comply with the Constitution when it proposes changes to it.

by JOSE CHAVEZ CAMANO

The sex drama online between Ms. Katrina and Mr. Kho had spilled over the Senate floor and everyone got wet, literally and figuratively. The august chamber on cue from Senator Jamby Madrigal, Committee Chairman on Youth, Women and Family Relations had summoned, on suggestion from Senator Bong Revilla, another movie actor, both artists in the sex video to bare it all, entertain the public and to enlighten the distinguished lawmakers so they can craft a piece of legislation to address sex videos proliferating online involving our young adults as well as not too young adults. It is indicative enough that the Senate has the fortitude and the resolve to address this one vexing issue of pornography online, though hours earlier, the same body was at a loss on how to interpret their ethics rule against one of its member Manny Villar, and would defer to the High Tribunal for guidance. Proficiency in math seems to plague this chamber too that it is likely to ask the same tribunal to determine what constitutes ¾ of the chamber to call for Con-Ass, though in the latter, it is losing steam as of now. Imagine children in gridlock over whose turn it is to wash the dishes and whose turn to play the video games that they have to ask their parents to settle the matter. The only difference is that our lawmakers were no longer immature children, though temperamentally they could still be.

That this august chamber is deficient on something else does not argue against its capacity to fashion a piece of legislation that will address the issue of “voyeurism” or “pornography” online. There seems to be, in this regards, a unanimous perception that the Senate can handle this “sex” investigation in aid of legislation or in aid of its basal interest for raw and prurient desire to look at the “perpetrators” up close and personal.

Let us leave the Senate for a while and look for some substance.

If adults had engaged in some kind of indiscretion, our reflex reaction is to find out if it was consensual on their part. If this encounter was captured digitally frame by frame, our instinctive reaction is to ask if both knew of the capture. If yes on both, we tend to brush everything aside and take a hike. If there is no public interest that is involved, we can sleep tight at night. But how about if this indiscretion was done in an awfully tasteless manner and the entire episode becomes an overnight sensation online as to provoke someone to cry in anger: “masyado akong nababoy”. Now we can see some public outrage, though mistaken and misplaced in part because it was snowballed by the TV-network and the movie industry that had packaged Ms. Katrina both as a sex symbol and a heroine out to save mankind. If Ms. Katrina was advertised as a sex symbol, what is so wrong with her being seen performing an act that she was packaged to deliver? Was it because her director was a doctor and she was unaware of the camera rolling? Was the outrage lies in part because she was not able to deliver her best worthy of a FAMAS title as she was unaware of the camera rolling? Or was it because it was a one-sided portrayal of her as a sex symbol and it was not balanced by her selfless heroine character?

The perplexing personality of Ms. Katrina is only matched by his partner who now claims that his deviant behavior was a result of a childhood trauma. What childhood trauma? He seemed to be upbeat and in high spirit sojourning with his girlfriend, Ms. Belo in another escapade in Singapore until the sex video with Ms. Halili had appeared online. He did not appear to be suffering from any trauma before the video scandal.

The negative reactions from the public was fueled chiefly by GMA-7, Ms. Halili’s employer, whose daily variety show features scantily clad young girls gyrating before TV cameras beamed throughout the country and other parts of the world, which announced that it was standing behind her highly-prized sex kitten, Ms. Katrina. The entire movie industry had rallied behind her as well.

Dr. Kho was overwhelmed by the negative reactions from the public about this video clip that he hired a lawyer to fight tooth and nail for his right over this video which he claimed was released without his permission. He appeared on TV contrite though for his behavior only after his doting mother had made a similar appearance earlier that was a disaster.

The public are being entertained with the cheap kind of circus where one is being portrayed as virtuous and another as a villain. Her virtue centers around her being unaware of the camera rolling while doing sex act; and his villainous act, that of taping the sexual congress and releasing it thereafter. We seem to wallow in the idea that had she been aware of the camera rolling and consented to it, it will cement a character in her person which in the first place was not there. For proper perspective though, the public should see them both as villains.

To illustrate this point, let us put another face instead that of Ms. Katrina’s doing sex with Mr. Kho. This other face is not also engaged to be married with Mr. Kho either because he has his own girl Ms. Belo. We have no problem conjuring up an image of what the local wags would call “Pok-Pok” but in the case of Ms. Katrina, we conveniently put a face of a “victim of injustice”.

In the case of Mr. Kho, the public can easily read perversion from every copy of sexual video he has with his partners to catalogue his conquest and to make money in them in the future.

If you sympathize with either, then we have our priorities wrong and our morality totally upside down. This could be the reason why we can only achieve so much as a nation.