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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

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Location: San Juan, Metro Manila, Philippines

Friday, March 31, 2006

Even The Devil Can Quote Santiago

Charter change proponents and anti-charter change advocates have been invoking the case of Santiago v. Comelec. Essentially, what is this case all about?

Santiago V. Comelec was the test case that defeated the first attempt to amend the 1987 Constitution by way of people’s initiative which was codified into law and knows as Republic Act No. 6735.

Sometime in 1996, a petition was filed to amend the term limits of elective officials. Unfortunately for the petitioners, the Supreme Court dismissed the petition on the following grounds:

a. One cannot revise the 1987 Constitution by way of a people’s initiative;
b. The lifting of term limits is not an amendment but a revision;
c. R. A. No. 6735 is inadequate to conduct a people’s initiative to amend the Constituion;
d. The signatures should be submitted alongside the petition in order to vest validity on the petition;

As a result of the case, the petition to lift the term limits (a strategy employed by FVR) was defeated. Having said that, why are the new proponents invoking R. A. No. 6735 notwithstanding its previous defeat?

a. Because it was a tight decision won only by a single vote;
b. Because the present Chief Justice Panganiban and Justice Puno wrote dissenting opinions advocating that R. A. No. 6735 is adequate to conduct a people’s initiative;
c. Because most of the justices who voted to dismiss the people’s initiative have retired and a new batch of justices of the Supreme Court have taken over;

Given this scenario, it is not surprising that ChaCha proponents are advocating a re-examination of the Santiago case, not because of the strong legal arguments but simply because there is a sufficient number of justices that can reverse Santiago.

But here is my analysis why Santiago cannot be reversed without inviting suspicions that the justices have been co-opted to grant the people’s initiative.

1. The majority opinion written by then Justice Davide quoted the debates of the Constitutional Commission regarding the provision on Amendments and revisions of the Constitution. Strictly stated, the subject of lifting term limits is simply not an amendment just because it referred only to one subject. Since it involves a monumental perpetuation of power for incumbents, the Supreme Court considered that particular subject a qualitative change, not a mere quantitative change.

Therefore, being a qualitative change which can only be done through revision, amendments will not be allowed by way of people’s initiative since the records of the 1987 Constitution showed that a revising the constitution cannot be the subject of a people’s initiative.


2. The majority opinion quoted the debates in the Constitutional Commission as a basis for justifying why R A No. 6735 is inadequate to handle R. A. No. 6735. On the other hand, Justice Puno quotes the debates for R. A. No. 36735. In fact, Justice Panganiban, in his dissenting opinion, did not quote either the records of the Constitution or the records of the debate. Justice Panganiban only spoke of the need to construe R. A. No. 6735 liberally as a principle of statutory construction but had no contextual basis in either the records of the Constitutional Commission or of the debates on R. A. No. 6735 as justification.

What we are looking at is the conflict between the 1987 Constitution and a law, R. A. No. 6735. It would be difficult to reverse the Santiago case because the ratio of the case dealt with the philosophy behind what a revision or an amendment means. In that case, we only had one subject, lifting of term limits, and yet, the Supreme Court considered that as a revision which cannot be amended by people’s initiative. In the present controversy, the proponents claim that there is only subject, parliamentary change, and therefore, can be the subject of a people’s initiative.

But if the Supreme Court justices considered the mere lifting of term limits a matter of revision, and not a mere amendment, how much more when talk is about amending two major Articles of the 1987 Constitution, namely, the articles on the Executive and Legislative Departments? To justify the validity of the present people’s initiative, the justices will have to explain itself, with great difficulty, why Articles 6 & 7 can be amended by a people’s initiative and without giving the impression that they have been co-opted.

Santiago was very clear. People’s initiative can only be used for amendments and not for revision of the constitution. In the present case, assuming for the sake of argument that the present amendment involves only one subject, the argument remains thus: to change the form of government involves a fundamental change in the philosophy of government and therefore, cannot be done by mere people’s initiative.

How the justices can worm themselves away from this fundamental philosophical argument, I cannot fathom. But if the Supreme Court shall reverse itself unconvincingly on this score, the Panganiban Court will be no different from the Fernando Supreme Court of the martial law years.

What little confidence we still have on the Supreme Court given its turtle pace in deciding constitutional cases, I continue to hope that they will do the right thing.

4 Comments:

Blogger Rizalist said...

Ed,
There is a certain sense in which CHACHA is a kind of Constitutional Reset. We know that the Supreme Court must feel the waters rising up all a around it, not only from decisions crying out for action now, but decisions they've made recently. You know the ones I am referring to.

I wonder if the Supreme Court itself is coming to see Chacha as a way out of its troubles, a way to avoid having to reverse some of its own egregious decisions.

That would be very dangerous if, like the Presidency, the Military, the Lower House, and Comelec, the SC sees chacha as a way of sweeping it all under the rug and doing a reboot without being punished for their crimes.

We might not think they are guilty of crimes, but they MUST, else why are they trying so hard to do the wrong things?

3:10 PM  
Blogger Rizalist said...

ED--Justice Davide's Conclusion in Santiago v. Comelec--This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

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


Assuming at some future date an enabling law acceptable to the SC has been passed, can you give an example of an "amendment on the Constitution" that could be considered appropriate for a "mere people's initiative"? I mean, an example of amending the Constitution not a mere "national law, rule or regulation."

8:03 PM  
Blogger Rizalist said...

Ok, now I'm getting MAD too Ed. I just listened to a Director James Jimenez on Ces Drilon's show tonight. He claims the verification task is no big deal, just part of the Comelec's regular work, won't cost much at all...hmmm...he describes the basic task as one of looking at the signature, pulling out the file, comparing the signatures and certifying them as authentic...hmmm sounds kinda technical, and could take a few minutes, at least if you're really trying to do "verification"...now 5.3 million signatures that's a lot of Man-minutes in my book... won't cost much huh?...like i said am getting mad too now coz the comelec guy was SOOOO SMUG. Like he was saying; just try and stop the cha cha choo choo

8:59 PM  
Blogger Edwin Lacierda said...

DJB,

An example of an amendment that can be the subject of a people's initiative is to add another article on the Bill of Rights. That would be an amendment.

In fact, if you recall, the Bill of Rights in the US Constitution were added as amendments.

11:35 PM  

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