THE QUEEN CAN DO NO WRONG?

 

Okay.  Gloria Macapagal-Arroyo should be made answerable for this and that scandal.  She should be investigated and eventually prosecuted for graft and corruption, bribery or maybe even plunder and for all other laws that she and her cohorts may have violated.  Problem is, we cannot do all that while she is the sitting President.  She is IMMUNE FROM BOTH CIVIL AND CRIMINAL SUITS until June 30, 2010.  And whether we agree or not, her presidency has already been declared legitimate by the Supreme Court in 2001 and by the Abalos-Garci Comelec in 2004.  She will not resign and it looks like the AFP under General Esperon is not about to succumb to the wishes of People Power hopefuls.

WHAT THEN DO WE NEED TO KNOW ABOUT A PRESIDENT’S PRIVILEGE OF IMMUNITY FROM SUIT? 

Here are some of the anticipated questions and answers:

1.  What is the historical basis of the doctrine of executive immunity? 

The logical basis for executive immunity from suit was originally founded upon the idea that the “King can do no wrong.”  The concept thrived at the time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and governmental power resides in the throne. During that historical juncture, it was believed that allowing the King to be sued in his court was a contradiction to the sovereignty of the King.  (R.J. Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303, 1959) 

2.  What happened to the medieval concept of the “King can do no wrong” with the advent of democratic thoughts and institutions? 

The Supreme Court said that although the doctrine had lost its moral force, it found its way of surviving in modern political times, retaining both its relevance and vitality. Executive immunity has now become necessary for a variety of reasons.  The doctrine, among others, is rooted in the constitutional tradition of separation of powers (Nixon v. Fitzgerald, 451 U.S. 731, 1982).  The separation of powers principle is viewed as demanding the executive’s independence from the judiciary, so that the President should not be subject to the judiciary’s whim. Moreover, by reason of public convenience, the grant is to assure the exercise of presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention (Soliven v. Makasiar, 167 SCRA 393, 198 . 

3.  How and when did this concept of executive immunity emerge in our jurisdiction? 

The principle first came out in the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield, 16 Phil 534, where the Supreme Court at that time, speaking through Justice Johnson, held that: 

“The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties.” 

The decision, however, failed to mention whether a chief executive is also immune from criminal prosecution during his incumbency.  It only emphasized the possible consequences that may result if a chief executive is deprived of such immunity, such as:  “action upon important matters of state (will be) delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect (would be) engendered for the person of one of the highest officials of the State and for the office he occupies; (there will be) a tendency to unrest and disorder resulting in a way, in a distrust as to the integrity of government itself.” 

4.  Did the 1935 Constitution contain any specific provision on presidential immunity? 

No. The 1935 Constitution was silent on the matter of executive immunity.  

5.  How about under the 1973 Marcos Constitution?  Was there ever a provision on executive immunity? 

Yes.  In 1981, Article VII, Section 17 was amended in this wise: 

“The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. 

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution.” 

The effects of such amendment were that first, the immunity applied to both civil and criminal cases and that second, it covered not only the official acts of the President but also the acts of others who acted upon his specific orders.  The late dictator had probably anticipated a barrage of civil and criminl suits the moment he was no longer in power and true enough, some of those cases are still pending resolution up to this day.  This amendment, if not for his ouster in 1986, would have saved the day for him and Imelda. 

6.  Does the 1987 Constitution have any provision on executive immunity similar to that of the 1973 Constitution? 

No.  The Constitutional Commission created by President Aquino to formulate the draft of the 1987 Constitution did not bother to reenact the provision on executive immunity as found in the 1973 charter.  Fr. Joaquin Bernas, who was one of the commissioners,  saw no need to do so because it is already implicitly recognized in jurisprudence and in the principle of separation of powers that a President, during his tenure, is immune from suit. 

CONCLUSION: 

• A President cannot be prosecuted administratively, civilly and criminally during his tenure except by impeachment under Article XI, Section 2 of the 1987 Constitution; 
• The only reason why a President cannot be prosecuted during his tenure is to allow him to perform the duties of his office without having to attend to possible suits that may arise from such performance; and
• The immunity ceases once a President resigns, is removed from office (either intra-constitutionally or extra-constitutionally) or when his term of office expires. 

But do you agree to the proposition of Ex-Senator Jovito Salonga that while President Arroyo may be immune from suit, she is not immune from investigations? 

What do you think? 

(reference:  Estrada vs. Desierto, G.R. Nos. 146710-15. March 2, 2001)

The MISCONCEPTION about the SEPARATION of CHURCH and STATE

  

In light of the CBCP’s call for Gloria Macapagal-Arroyo to scrap EO 464 (which she did), a call that dismayed the anti-Arroyo crowd who wanted the bishops to issue a stronger statement, i.e. resignation, the question which I believe until now has not been clearly answered is this: 

IS THE SEEMING INTRUSION OF THE CATHOLIC CHURCH INTO THE POLITICAL AFFAIRS OF THE NATION A VIOLATION OF THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE? 

Article II, Section 6 of the Constitution states: 

The separation of Church and State shall be inviolable. 

In the case of Austria vs. NLRC, G.R. No. 124382, August 16, 1999 (involving an illegal dismissal case filed by a Pastor against the Seventh-day Adventist Church), the Supreme Court made the following pronouncement: 

The rationale of the principle of the separation of church and state is summed up in the familiar saying, “Strong fences make good neighbors.”  The idea advocated by this principle is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions.  The demarcation line calls on the entities to “render therefore unto Ceasar the things that are Ceasar’s and unto God the things that are God’s.”  While the State is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters. 

In that case, while the Court explained the meaning of “purely ecclesiastical affairs”, it did not expound on the phrase “purely secular matters”.  Finding out the meaning of these terms is imporant in order for us to know when the two institutions can be said to be intruding into the affairs of the other.  Hence, while an ecclesiastical affair is “one that concerns doctrine, creed, or form or worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership”, there is no such counterpart definition in the decision with respect to what are purely secular matters.  That leaves us, therefore, to determine for ourselves what they are. 

The daily operations of government and the official functions exercised by various government officials are, in my opinion, the matters which the Church should not meddle into. The business of government is better left to the expertise of people who are specially trained in running the day to day affairs of the State.  Ergo, if the Church as a whole (or as a matter of policy) immerses itself in government, e.g. establish a political party, allowing its bishops and priests to be appointed or elected as public servants, then that would be a violation of the constitutional principle. 

Be that as it may, Article II, Section 6 should be read in conjunction with Article III, Section 5 which provides: 

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. 

There are three important principles in the aforecited section.  First, it prohibits the establishment of any official religion by the State.  Second, it guarantees the free exercise of religion.  Third, it prohibits the conduct of religious tests before a person can exercise civil or political rights (like, for example, limiting public offices to those who adhere to a particular religion). 

There are other constitutional provisions that reinforce Article III, Section 5.  They are Article VI, Section 29 (2): 

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 

and Article IX, C, Section 2 (5), 1st paragraph: 

The Commission on Elections shall exercise the following powers and functions: 

x x x 

Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens’ arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. 

From the foregoing, it is clear that the burden is more on the State to ensure, inter alia, that first, it does not intrude into the ecclesiastical affairs of the Church; second, it does not establish any official religion; third, it guarantees the free exercise and enjoyment of religious profession and worship; and fourth, it prohibits any religious test for the exercise of civil and political rights. 

Except for the soft reminder that it should not interfere with “purely secular affairs”, nowhere in the Constitution can you find similar or counterpart burdens imposed on the Church.  Thus, it is wrong to say that the Church is meddling with politics when: 

1. the CBCP or any of its bishops issue pastoral statements attacking or defending the administration of President Gloria Macapagal-Arroyo; or when 

2.  activist priests and pastors hold rallies or stage protest actions against the government;  or when 

3.  you hear priests like Fr. Romeo Intengan blame the Left for the ills of the nation; or when 

4.  you see Pastor Apollo Quiboloy (the self-proclaimed “son of god”) openly declare President Arroyo to be God’s choice; or when 

5.  religious denominations like the Iglesia ni Cristo endorse certain candidates for public office; or when 

6. La Salle brothers and nuns provide sanctuary to NBN witness Jun Lozada; or when 

7.  you see priests holding political masses for former President Corazon Aquino and her followers; or whenever 

8.  you see 17 priests from Pampanga exorcising the evil out of Gloria.   

In all of the above cases, there is no violation of the constitutional principle of separation of church and state. 

Read the statements of: 

Archbishop Angel Lagdameo here and here. 

Archbishop Oscar Cruz here and here. 

Ricardo Cardinal Vidal here. 

Archbishop Gaudencio Rosales here. 

Archbishop Orlando Quevedo here and here.

Q and A on EXECUTIVE ORDER 464

1.  What is the scope of the power of Congress to conduct inquiries in aid of legislation? 

The pertinent provision is found in Article 6, Section 21 of the 1987 Constitution:

SECTION 21.  The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.  The rights of persons appearing in or affected by such inquiries shall be respected. 

In the case of Arnault vs. Nazareno (87 Phil. 29, 45), the Supreme Court had occasion to state that the power of inquiry is an essential component to the legislative function because Congress may not be able to legislate effectively if it is not armed with the necessary information “respecting the conditions which the legislation is intended to affect or change”.  However, the Court in that same case also said that “it would be difficult to define any limits by which the subject matter of its inquiry can be bounded.  Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation.  In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation.” 

Going by the the above ruling, it would seem that the Senate is well-within its powers to make inquiries on the aborted/cancelled/suspended ZTE-NBN broadband deal, not so much for partisan political purposes (as what Malacañang spin doctors are harping about) but more so on the issue of whether or not the deal has complied with the government’s procurement laws that Congress itself has enacted.

2.  What is Executive Order No. 464 in relation to Article 6, Section 22 of the 1987 Constitution?  How did the Supreme Court interpret the controversial executive order? 

The salient features of Executive Order No. 464 are reproduced hereunder, viz: 

SECTION 1. Appearance by Heads of Departments Before Congress. - In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SEC. 2. Nature, Scope and Coverage of Executive Privilege. - 

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution.  Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that public officials and employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1.  Conversations and correspondence between the President and the public official covered by this executive order; 

2.  Military, diplomatic and other national security matters which in the interest of national security should not be divulged; 

3.  Information between inter-government agencies prior to the conclusion of treaties and executive agreements; 

4.  Discussion in close-door Cabinet meetings; 

5.  Matters affecting national security and public order. 

(b) Who are covered. - The following are covered by this executive order:

1.  Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; 

2.  Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; 

3.  Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; 

4.  Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and 

5.  Such other officers as may be determined by the President. 

SECTION 3. Appearance of Other Public Officials Before Congress. - All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.

On the other hand, Article 6, Section 22 of the 1987 Constitution states: 

SECTION 22.  The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. 

The Supreme Court in the relatively recent case of Senate of the Philippines vs. Executive Secretary Eduardo Ermita (G.R. No. 169777) held that Sections 1 and 2(a) of EO 464 are valid while Sections 2(b) and 3 are void. 

According to the Supreme Court, there is really no problem with Section 1 of the executive order as the same relates only to Article 6, Section 22, which refers to the so-called question hour, and not to Article 6, Section 21, which refers to the power of Congress to conduct inquiries in aid of legislation.  In the former, the appearance of department heads in the question hour is discretionary on their part considering that Congress can only request them to do so; or if the initiative to appear comes from the department heads themselves, then they can only appear with the prior consent of the President. 

However, if you examine the provision closely, this so-called question hour finds no application in a presidential system where there is separation of powers among the three branches of government.  It is more akin to a parliamentary system (where there is blending of powers) as this is usually “the period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government, corresponding to what is known in Britain as the question period”. 

The Supreme Court has made it clear that “while attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation.  The High Court further explained: 

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.  x x x 

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. 

3.  What is executive privilege?  How does it affect the power of Congress to compel the attendance of executive officials under Section 21 (inquiries in aid of legislation)? 

In the case above-mentioned, the Court declared that the only way for department heads to exempt themselves from Congressional inquiries in aid of legislation is by a valid claim of executive privilege. 

Executive privilege is basically the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.  Specifically, there are three recognized kinds of executive privilege and they are: 

1.  the state secrets privilege — the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives; 

2.  the informer’s privilege — which refers to the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law; and 

3.  the generic privilege for internal deliberations — this has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.  

But how does one validly invoke a claim of executive privilege? 

The claim of executive privilege must be accompanied by a specific allegation as to the basis thereof, “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.  x x x Otherwise, Congress is left to speculate as to which among them is being referred to by the executive.  x x x Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. x x x Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.” 

Citing the case of U.S. vs. Reyolds, the High Tribunal said: 

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. 

4.  If the President’s formally revoked E.O. 464, what happens, does it mean what the S.C. allowed the President and her officials to invoke, can no longer be invoked? Or can you still invoke the provisions of an executive issuance that has been formally revoked? Specially since Memorandum Circular 108 is still in force? (adopted question from MLQ3) 

President Arroyo does not need EO 464 before she can invoke executive privilege.  Executive privilege, though not expressly mentioned in the Constitution, is nevertheless recognized by the fundamental law with or without said executive order.  The scrapping of EO 464 is practically useless as Romulo Neri can always invoke executive privilege when, in his judgment, or upon the advice of his lawyers, the information sought to be elicited is covered by the principle.  If the Senators disagree, then resort may be had to the Supreme Court to break the constitutional  impasse.  If that happens, then that would buy more time for the President to recover lost ground.  We all know how “long” it takes before the SC comes up with a decision or resolution.

5.  The main arguments in the provisions that were still valid, up to the time of revocation, having been ratified by the court, does a new executive issuance have to be signed, to continue invoking them?

In other words, does revoking E.O. 464 while asserting the right to invoke executive privilege, at this point, and with the particular issues at hand, actually mean anything? (also an adopted question from MLQ3) 

The revocation means nothing.  As far as the “valid” provisions of EO 464 are concerned (Sections 1 and 2a), they are still binding and effective.  Why?  This is so because Section 1 is merely a reiteration of the constitutional provision regarding the discretionary appearance of heads of departments in the question  hour (Article 6, Section 22).  It does not refer to inquiries in aid of legislation which is governed by Article 6, Section 21. 

Section 2a, on the other hand, is merely a discussion on the nature, scope and coverage of executive privilege which, as I said, is already jurisprudentially recognized with or without said EO. 

President Arroyo’s legal advisers were clever enough to scrap the executive order because they know that executive privilege springs not from some EO but from another source which is the Constitution. 

But I like this loaded question of Justice Carpio to Atty. Bautista:  Can executive privilege be invoked to hide a crime?

THE DISTINCTION BETWEEN EDSA 1 AND EDSA 2

A fellow blogger asked this question in one of the comment threads: 

“thanks for explaining about the extra-constitutional nature of the people power. ive been wondering if it is legally binding or not. but will it be ‘legal’ as in 100% recognized by the senate and the courts?” 

In distinguishing  EDSA 1 from EDSA 2, the Supreme Court in the case of Estrada vs. Arroyo had this to say: 

“xxx the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people “in defiance of the provisions of the 1973 Constitution, as amended.” It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.  In her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented political question; EDSA II involves legal questions.”     

In other words, if your concept of “people power” falls under EDSA 1, then there is no need to determine its legality or illegality (legitimacy or illegitimacy).  This is so because EDSA 1 involved a change in the structure of government itself as reflected in the adoption of the 1987 Constitution.  It resulted in the overhaul of the enitre system from the President down to the lowliest ranked public servant. 

On the other hand, EDSA 2 involved only the Office of the President which, as history tells us, led to the forced “resignation” of Joseph Estrada due to pressures from civil society, religious and militant groups and which culminated in the AFP and PNP’s withdrawal of support to their Commander-in-Chief.  Unlike EDSA 1, EDSA 2 did not overhaul the constitutional structure of government as there was only a change of leadership from President Estrada to then Vice-President Arroyo.  The latter, in accordance with the 1987 Constitution, merely succeded the former.  Hence, if your concept of “people power” falls under the circumstances of EDSA 2, then this is where the question of “legitimacy” or “legality” can arise.  This was the reason  why the Supreme Court at that time took cognizance of the case filed by Erap against Gloria that questioned her assumption of the presidency.  To the minds of the Justices, the alleged resignation of Erap presented a legal question which was subject to judicial review.

WRIT OF AMPARO: THE JUDICIARY’S RESPONSE TO THE SENSELESS MURDERS

I remember several bar exams ago that a question was asked in Political Law about the writ of amparo. Although we may have heard or read about it in lectures and publications that mention it in passing, “amparo” is still somewhat novel for lawyers and law students alike. Nope, I am not about to discuss here the etymology or history of the term. Suffice it to say that in Latin American countries, the writ has already been widely used since the 19th century as an effective antidote against oppressive regimes. Little did we realize that the writ with a feminine sounding name is now, in the words of the Chief Justice himself, “the greatest legal weapon to protect the constitutional rights of our people”.

Promulgated pursuant to the recommendations of the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances held last July 16 to 17, 2007 at the Manila Hotel, this rule is seen as the Supreme Court’s response to the alarming spate of human rights violations that have taken place since 2001 which, observers say, comes as a close second to those committed during the Marcos era.

In a nutshell, the petition for the issuance of a writ of amparo is available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof (Sec. 1 of the Rule).

Among the significant portions of the rule are the following: 

1. The petitioner is exempted from the payment of the docket and other lawful fees, thereby giving him full and free access to courts authorized to issue the writ.

2. Technically, the petition can be filed on any day and at any time with the Regional Trial Court of the place where the violation was committed or with the Sandiganbayan, Court of Appeals, or the Supreme Court. 

3. The writ is enforceable anywhere in the Philippines. 

4. The respondent named in the writ, after being served therewith, must not only show in his return that he did not violate or threaten with violation the human rights of the aggrieved party but he must likewise show the steps taken by him to determine the whereabouts of the aggrieved party and the person or persons responsible for the violation. This simply means that a general denial by the respondent of the allegations in a petition for a writ of amparo, unlike in habeas corpus, is no longer sufficient to absolve him from responsibility. 

5. The respondent must raise in his return all possible defenses available to him.  Otherwise, they will be deemed waived. 

6. The hearing of the writ, which is summary in nature, shall be scheduled not later than seven (7) days from the date of its issuance. 

7. The court, upon the filing of the petition, may grant temporary reliefs to the petitioner or the aggrieved party like temporary protection orders, inspection orders, production orders, witness protection orders and the like. 

8. If the respondent happens to be a public official or employee, he cannot evade liability or responsibility by invoking the presumption of regularity in the performance of duty. 

9. The respondent who refuses to make a return or who makes a false return or otherwise disobeys the lawful process or order of the court shall be punished for contempt either by imprisonment or fine. 

In terms of degree of liability, the writ of amparo requires a higher standard of diligence on public officers and employees than on private individuals and entitites. This is but understandable, considering the kind of influence military and police authorities wield on government institutions that may only lead to cover-ups and whitewashed investigations. 

The promulgation of the writ of amparo comes at a crucial period in our history when the administration of President Gloria Macapagal-Arroyo is hounded left and right with accusations of extrajudicial killings and abductions of activists and journalists. Now, this question comes to mind:  is this an indication that President Arroyo has not been doing enough to bring the perpetrators to the bar of justice considering that the initiative had to come not from the executive but from the so-called weakest branch of government which is the judiciary?

Extra-legal murders and abductions whether for personal or political reasons definitely have no place in a democratic country such as ours. It therefore behooves the government, particularly the Chief Executive, to be in the forefront in the campaign to preserve and protect human rights irrespective of political ideology.

While the new rule on the writ of amparo may be the first big step at minimizing violations of human rights, it is only as good as the people tasked to enforce its provisions. Without the sincere and active cooperation of all sectors of society, the efforts of the Chief Justice - no matter how noble - may only go for naught. 

Vigilance is the key.

SC: REBELLION CASE VS. THE BATASAN 6 IS A FIGMENT OF RAUL’S IMAGINATION

Poor Raul. 

The Supreme Court delivered another humiliating blow to the Arroyo administration after it ordered the dismissal of the rebellion cases filed against party-list representatives Crispin Beltran, Satur Ocampo, Teddy Casiño, Joel Virador, Rafael Mariano and Liza Masa. 

Citing the oppressive and hasty manner under which the cases were filed, the Supreme Court laid down the following reasons for its decision, viz: 

 

1.  The inquest conducted on Crispin Beltran for allegedly committing the crime of rebellion was illegal. 

DOJ Circular No. 61 defines inquest as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether or not said persons should remain under custody and correspondingly be charged in court. 

Beltran was actually charged in two cases, one for inciting to sedition and the other for rebellion.  While the High Court did not seem to find any irregularity with respect to the inquest for inciting to sedition, the second inquest for rebellion failed to comply with the rules on warrantless arrests under Section 5, Rule 113 of the 2000 Revised Rules of Criminal Peocedure in relation to DOJ Circular No. 61. 

The joint affidavit of arrest merely implicated Beltran for inciting to sedition, as he allegedly made seditious speeches at a Quezon City rally on the 20th anniversary of the 1986 Edsa Revolution, the day prior to his unlawful arrest in Bulacan.  It never made mention of Beltran committing in their presence the crime of rebellion nor was there any allegation in the said affidavit that the arresting officers had probable cause to believe (based on personal knowledge of facts and circumstances) that Beltran had just committed the crime. 

In other words, there was no basis to hold an inquest for rebellion because the same could only be had if there was a prior valid warrantless arrest under said Section 5.  The Court noted that the prosecutors should have first determined if the warrantless arrest (for rebellion) was effected in accordance with the rules before proceeding with the inquest proper.  Had they religiously followed this basic procedure, there would not have been any inquest in the first place for they would have known by then that there was no ground to further detain Beltran and consequently hold him for trial. 

2.  There was no probable cause to indict Beltran for rebellion. 

As a rule, the determination of probable cause for purposes of filing a case is left to the sound discretion of the investigating fiscal.  Courts do not generally interfere with this prosecutorial function.

In the instant case, however, the Supreme Court took a more active stance.  It exercised its review power under Rule 65 and reversed the prosecutors’ findings.  The Court noticed that the prosecutors gravely abused their discretion when they proceeded to charge Beltran even if the evidence was clearly insufficient to support a finding of probable cause. 

Guess what.  Either the prosecutors were too incompetent to make out a case or they were pressured by the DOJ Secretary to file a purely baseless charge.  As succinctly explained in the decision, nowhere does the evidence point to any of the elements of rebellion under Article 134 of the Revised Penal Code. 

3.  The preliminary investigation of the other party-list representatives, also charged with rebellion, was fraught with obvious irregularities. 

The High Court observed that the procedure in the conduct of preliminary investigations was not “scrupulously” followed by the panel of prosecutors as outlined in Section 3, Rule 112.  And rightfully so, for it would appear that Gloria Arroyo, through the DOJ, is using “the strong arm of the law in an oppressive and vindicative manner” to harrass and get back at her critics by falsely and maliciously accusing them of a crime under a procedure tainted with bias and prejudice. 

The Supreme Court even went as far as castigating the Justice Secretary for his manifest partiality and evident bad faith, reminding him of the court’s earlier pronouncement in the case of Tatad vs. Sandiganbayan: 

We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be public’s perception of the impartiality of the prosecutor be enhanced. 

Will the Justice Secretary heed the Court’s admonition?  Knowing Raul, he obviously won’t.  Yesterday, the Solicitor General already made known her disappointment by saying that “time-honored and well-established principles on criminal law and procedure were seemingly trampled upon” in the High Court’s decision.

Really?  Look who’s talking. 

Click here for the full text of this landmark decision.  (images above taken from zumel.com and anakpawis.com)

THE TERROR LAW

This is the irony. A proposed law that seeks to prevent and curb “terrorism” will instead promote and encourage it. Senate Bill No. 2137, otherwise known as AN ACT TO DETER AND PUNISH ACTS OF TERRORISM AND FOR OTHER PURPOSES now on 3rd reading in the Halls of the Senate, should instead be aptly called THE TERROR LAW OF 2007. My vehement opposition rests on the following:

x

1. The definition of “terrorism” reeks of vagueness and encompasses a broad spectrum of acts that are already punishable under other laws.

Section 3 of the proposed law provides in part:

Sec. 3. Terrorism, How Committed. — Terrorism is committed by any person or group of persons, whether natural or juridical, through premeditated, threatened, or actual use of violence, force, coercion xxx perpetrated against persons, xxx or the government, with the intention of creating or sowing a state of danger, panic, fear or chaos to the general public or a segment thereof by any of the following acts: xxxxx

Again, the definition is vague and all-encompassing. Almost all forms of threatened or actual use of violence — as long as the intention is to create fear, panic, etc. to the public — are covered by the definition whichever way it is interpreted. This is highly dangerous because state authorities are practically given the free hand to determine what constitutes or does not constitute terrorism. Besides, most of the so-called “acts of terrorism” enumerated thereunder have long been declared punishable under other laws, notably the Revised Penal Code. I cannot, therefore, see any cogent reason why another law has to be passed only to parrot what has already been provided. I maintain that our laws are suffcient enough to deal with this kind of problem. Unfortunately, what this country lacks is the political will to implement the penal laws already in place.

x

2. The proposed law smacks of subjectivity and violates the due process clause of the Constitution. x

Let’s take a closer look at both Sections 8 and 9 of the proposed law:

Sec. 8. Proscription of an Organization. — For the purpose of this Act and with the observance of due process, the Anti-Terrorism Council, upon its own initiative, or upon recommendation of the Secretary of Justice may proscribe a group as a terrorist organization if such organization is characterized by any of the following:

x

1. Any member or members thereof openly and publicly declares, xxx to have committed any of the acts punishable under this Act;

2. Any member or members thereof have been convicted for the commission of any act of terrorism as defined and described in Sections 3, 4 and 5 of this Act;

x

3. It is proscribed by the United Nations or international organizations.

x

xxx

x

Any proscribed organization or member thereof may move for de-proscription or de listing before the Department of Justice (DOJ), whose decision is appealable to the Court of Appeals.

x

Sec. 9. Membership in a Terrorist Organization. — Where an organization has been proscribed as a terrorist organization, it shall be unlawful for any person who knowingly,willfully, and by overt acts, affiliates himself, becomes, or remains a member of such activities unless he can prove a lack of personal knowledge of the organization’s activities; or that he has (not?) taken any part in the activities of the organization at any time while it was proscribed; or that he took immediate steps to terminate his membership therefrom as soon as practicable after it was proscribed; or that the organization was not declared a terrorist organization at the time he became a member or begun to profess to be a member. xxx

Don’t be misled. While Section 8 on the surface mentions the words “observance of due process” and “appealable to the Court of Appeals”, a close reading of the entire provision would lead one to conclude that they are merely stated for convenience, that is, to make it appear that the law recognizes a person’s constitutional right to be heard. In truth, however, the Terror Law does not seek to hear before it condemns but first declares a person or group as a terrorist or terrorist organization, giving them the unnecessary burden of proving their innocence by asking for their de-proscription before the Department of Justice. The only time that a court can intervene is when the aggrieved parties will appeal the Justice Secretary’s decision to the Court of Appeals.

x

The essence of procedural due process is the guarantee of procedural fairness. I don’t see anything fair about this whole procedure.

x

3. It increases the risk of police brutality, coercion and intimidation.

The first paragraph of Section 10 thereof states:

Sec. 10. Arrest and Detention. — Any person arrested for violation of this Act, pursuant to Rule 113, Section 5, paragraphs (a) and (b), of the Rules of Court, may be detained for an inquest period of not more than three (3) days following his/her arrest. xxx

By the way, what is Rule 113, Sections 5 (a) and (b)? The rule refers to two of three instances where a peace officer or a private person may arrest a person without warrant:

x

1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; and

x

2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.

x

Hence, when a person is arrested pursuant to the aforestated Rule, the Terror Law gives the arresting officers up to three (3) days or 72 hours to file the necessary charges in court. If no charges are filed beyond that period, they will have to release the person arrested, otherwise, they will be held criminally liable for arbitrary detention. The underlying procedure is still the same as in the Revised Rules of Criminal procedure in relation to the Revised Penal Code. The Terror Law however, seeks to increase the maximum period of detention from 36 to 72 hours.

x

And why do I say that it increases the risk of police brutality, coercion and intimidation? My theory is simple. We hear the cries of people being subjected to torture by police agents in order to extract information or solely to obtain extra-judicial confessions and admissions. If this has been happening even when there is no Terror Law yet in effect, how much more when such a law is enacted? To give more time for state agents to deprive people of their fundamental freedoms even for just a few days might embolden “hoodlums in uniforms” to commit more abuses on those carrying the terrorist tag.

x

4. It weakens constitutional safeguards designed to protect the privacy of communication and correspondence.

x

Section 3 (1), Article 3 of the Constitution provides:

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

Whereas Section 16 (1) and (3) of the Terror Law states:

Sec. 16. Communications Assistance for Law Enforcement Agencies. —

x

1. xxx any peace officer may apply ex parte before the executive judge of any Regional Trial Court for an order, extension of such an order, requiring a provider of wire or electronic communication service to provide intercepted communication and call identifying information to law enforcement agencies, or authorizing or approving the installation, use and/or retrieval of surveillance device, in connection with an investigation for any offense punishable under this Act.

xxx

3. When the peace officer has certified that the information likely to be obtained by such interception, installation or use is relevant to an ongoing investigation for any offense punishable under this Act, the court shall issue an ex parte order requiring a provider of wire or electronic communication service or authorizing the installation, use and/or retrieval of the devices applied for, for a period not to exceed sixty (60) days. Such order shall state one or more of the following- xxx

Again, don’t be misled. There is a marked difference between the manner of court intervention as required by the Constitution and the manner provided for under the Terror Law. Fr. Joaquin Bernas, a noted constitutionalist, is of the opinion that a court may only allow intrusion into private communication if there is probable cause to do so, similar to an instance wherein a judge determines probable cause before issuing a search warrant and/or warrant of arrest. More importantly, it must be determined personally by the issuing judge so much so that mere reliance on the asseverations of police officers will not suffice. Now, what is this legal animal called “probable cause”? Fr. Bernas said and I quote:

“Probable cause means such facts and circumstances xxx that are in themselves sufficient to induce a cautious man to rely upon them. xxx Probable cause xxx would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed xxx.”

By contrast, Section 16 (3) of the Terror Law has reduced the judge into a rubber stamp magistrate. All the peace officer has to do is to certify that “the information to be obtained by such interception is relevant to an ongoing investigation for any offense punishable under this Act”. The court in such a case is left with no option but to forthwith issue the said ex parte order without being given the opportunity to assess whether there is really a need to intrude into the privacy of another. x

5. It can be used by any insecure government as a tool to harrass and repress members of the opposition and militant organizations.

x

Need I say more? Regardless of their motivations (who doesn’t have, anyway?), the statements of Senators Nene Pimentel and Jamby Madrigal are more than enough to emphasize this point.

x

Senate Bill No. 2137 must be scrapped.

SUPREME COURT JUNKS GLORIA’S CHACHA

Reproduced hereunder are the salient portions of the Supreme Court’s decision junking the people’s initiative in Lambino et al. vs. Comelec (G.R. No. 174153 and G.R. No. 174299) :

x

The petitions raise the following issues:
x
1. Whether the Lambino Group’s initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the Constitution through a people’s initiative;
x
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 “incomplete, inadequate or wanting in essential terms and conditions” to implement the initiative clause on proposals to amend the Constitution; and
x
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group’s petition. x
x

THE RULING OF THE COURT

x

There is no merit to the petition.

x

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people’s initiative. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group’s glaring failure to comply with the basic requirements of the Constitution. For following the Court’s ruling in Santiago, no grave abuse of discretion is attributable to the Commision on Elections.

x

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People xxx

x

Clearly, the framers of the Constitution intended that the “draft of the proposed constitutional amendment” should be “ready and shown” to the people “before” they sign such proposal. The framers plainly stated that “before they sign there is already a draft shown to them.” The framers also “envisioned” that the people should sign on the proposal itself because the proponents must “prepare that proposal and pass it around for signature.”
x
The essence of amendments “directly proposed by the people through initiative upon a petition” is that the entire proposal on its face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be embodied in a petition. xxx

x

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on people’s initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the “petition x x x as signatories.” xxx

x

Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the petition contained, or incorporated by attachment, the full text of the proposed amendments. xxx

x

There is not a single word, phrase, or sentence of text of the Lambino Group’s proposed changes in the signature sheet. Neither does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments before this Court on 26 September 2006.

x

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before they are asked to sign the signature sheet. Clearly, the signature sheet is not the “petition” that the framers of the Constitution envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution. xxx

x

In any event, the Lambino Group’s signature sheets do not contain the full text of the proposed changes, either on the face of the signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders the initiative void for non-compliance with the constitutional requirement that the amendment must be “directly proposed by the people through initiative upon a petition.” The signature sheet is not the “petition” envisioned in the initiative clause of the Constitution.

x

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing. They could not have known the nature and effect of the proposed changes, among which are:

x

1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected indefinitely;

x

2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine the expiration of their own term of office;

x

3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further amendments or revisions to the Constitution.

x

These three specific amendments are not stated or even indicated in the Lambino Group’s signature sheets. The people who signed the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the contents of the signature sheets.

x

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However, the text of the proposed changes belies this.

x

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:

Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials…

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections. This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without specifying the year.

x

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word “next” before the phrase “election of all local government officials.” This would have insured that the elections for the regular Parliament would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word “next” allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections.

x

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and even the entire nation.

x

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes. The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the holding in 2007 of elections for the regular Parliament simultaneously with the local elections.

x

The Lambino Group’s initiative springs another surprise on the people who signed the signature sheets. The proposed changes mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy.

During the oral arguments, Atty. Lambino stated that this provision is a “surplusage” and the Court and the people should simply ignore it. Far from being a surplusage, this provision invalidates the Lambino Group’s initiative.

x

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable.

x

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter. xxx

x

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the Constitution. Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the Constitution.

x

However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature and effect of the proposed changes. Certainly, such an initiative is not “directly proposed by the people” because the people do not even know the nature and effect of the proposed changes.

x

There is another intriguing provision inserted in the Lambino Group’s amended petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states:

Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010.

x

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House of Representatives to the exclusion of the present Senators.

x

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets could not have known that their signatures would be used to discriminate against the Senators. They could not have known that their signatures would be used to limit, after 30 June 2010, the interim Parliament’s choice of Prime Minister only to members of the existing House of Representatives.

x

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative must be “directly proposed by the people x x x in a petition” - meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue as amending the nation’s fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and unelected individuals.

x

The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the petition, not after they have signed the petition.

x

In short, the Lambino Group’s initiative is void and unconstitutional because it dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be “directly proposed by the people through initiative upon a petition.”

x

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives

x

A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. xxx

x

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people’s initiative. Section 1 of Article XVII, referring to the first and second modes, applies to “[A]ny amendment to, or revision of, this Constitution.” In contrast, Section 2 of Article XVII, referring to the third mode, applies only to “[A]mendments to this Constitution.” xxx

x

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between “amendment” and “revision” of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose revisions to the Constitution. The framers intended, and wrote, that a people’s initiative may propose only amendments to the Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments. xxx

x

Similarly, in this jurisdiction there can be no dispute that a people’s initiative can only propose amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes prescribed in the Constitution itself.

x

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure compliance with the clear command of the Constitution ― that a people’s initiative may only amend, never revise, the Constitution.

x

The question is, does the Lambino Group’s initiative constitute an amendment or revision of the Constitution? If the Lambino Group’s initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution. xxx

x

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution, while amendment generally affects only the specific provision being amended. xxx

x

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government.

x

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a revision of the Constitution.

x

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the Lambino Group’s proposed changes, it is readily apparent that the changes will radically alter the framework of government as set forth in the Constitution. xxx

x

The Lambino Group theorizes that the difference between “amendment” and “revision” is only one of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called “revisions” because members of the deliberative body work full-time on the changes. However, the same substantive changes, when proposed through an initiative, are called “amendments” because the changes are made by ordinary people who do not make an “occupation, profession, or vocation” out of such endeavor. xxx

x

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had drafted the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the land. xxx

x

The express intent of the framers and the plain language of the Constitution contradict the Lambino Group’s theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent and language. Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group’s position. Any theory advocating that a proposed change involving a radical structural change in government does not constitute a revision justly deserves rejection. xxx

x

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution may be a revision and not an amendment. For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

x

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions allow people’s initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions. xxx

x

3. A Revisit of Santiago v. COMELEC is Not Necessary

x

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a people’s initiative to amend the Constitution. There is no need to revisit this Court’s ruling in Santiago declaring RA 6735 “incomplete, inadequate or wanting in essential terms and conditions” to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution to implement the initiative clause on amendments to the Constitution.

x

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other grounds.

x

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735.

x

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the “petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories.” Section 5(b) of RA 6735 requires that the people must sign the “petition x x x as signatories.”

x

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as counsels for “Raul L. Lambino and Erico B. Aumentado, Petitioners.” In the COMELEC, the Lambino Group, claiming to act “together with” the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.

x

The Lambino Group’s logrolling initiative also violates Section 10(a) of RA 6735 stating, “No petition embracing more than one (1) subject shall be submitted to the electorate; x x x.” The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group’s initiative will still fail. xxx

x

4. xxx

x

5. Conclusion

x

The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself.

x

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country.

x

An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes cast − approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the people’s sovereign will. That approval included the prescribed modes for amending or revising the Constitution.

x

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which means subverting the people’s sovereign will and discarding the Constitution. This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people.

x

Incantations of “people’s voice,” “people’s sovereign will,” or “let the people decide” cannot override the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution ― the people’s fundamental covenant that provides enduring stability to our society ― becomes easily susceptible to manipulative changes by political groups gathering signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation’s stability.

x

The Lambino Group claims that their initiative is the “people’s voice.” However, the Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that “ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.” The Lambino Group thus admits that their “people’s” initiative is an “unqualified support to the agenda” of the incumbent President to change the Constitution. This forewarns the Court to be wary of incantations of “people’s voice” or “sovereign will” in the present initiative.

x

This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people’s sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution. To allow such alteration and desecration is to lose this Court’s raison d’etre.

x

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

x

SO ORDERED.

x

Justices Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Romeo Callejo Sr., Ma. Alicia Martinez, Conchita Carpio-Morales, Adolfo Azcuna and Artemio Panganiban (Chief Justice), concurring.

x

Justices Reynato Puno, Leonardo Quisumbing, Renato Corona, Dante Tinga, Cancio Garcia, Minita Chico-Nazario and Presbiterio Velasco Jr., dissenting.

x

(picture above courtesy of singaw..)

A BOGUS INITIATIVE

The Arroyo administration, in a bid to stay in power at all costs, is now forcing down our throats this poisonous pill called Charter Change. Having failed to gain support from the Senate to transform Congress into a constituent assembly, it is now trying its luck on the so-called people’s initiative, the third mode provided by the 1987 Constitution wherein the people can directly propose amendments to the Constitution. But what really does the Constitution say about the latter mode? Section 2, Article 17 provides:

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

The last sentence of the above article suggests that the constitutional provision is not self-executory. Congress is precisely mandated to enact a law for the implementation of this right.

Q: Did Congress enact a law for a people’s initiative to propose amendments to the Constitution?

A: Yes, it did enact a law — Republic Act No. 6735 (The Initiative and Referendum Act) “providing”, among others, for a system of initiative and referendum on the Constitution.

Q: But is R.A. No. 6735 a full compliance with the power and duty of Congress to provide for the implementation of the exercise of the right?

A: No, the law was subsequently declared by the Supreme Court, in the landmark case of Defensor-Santiago vs. Comelec, as inadequate to provide for a system of initiative and referendum on the Constitution. In that case, the Supreme Court said:

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word “Constitution” in Section 2; (b) defines “initiative on the Constitution” and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of “plebiscite” as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service.

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned.

The Supreme Court further declared:

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.

Q: So what has been embolding the Abalos COMELEC to proceed with the verification of signatures (even before a petition is filed) despite the permanent injunction from the Supreme Court?

A: In the same case, the Supreme Court made this following pronouncement:

The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition; (2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district; (3) to assist, through its election registrars, in the establishment of signature stations; and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters’ affidavits, and voters’ identification cards used in the immediately preceding election.

On its face, it is true that the wording above seems to allow the COMELEC to verify signatures even before a petition to propose amendments to the Constitution is filed. But what Abalos deliberately missed out was that the Supreme Court allows such verification of signatures only under the assumption that there is already an enabling law to provide for the implementation of the system. Stated otherwise, it will only be a waste of time, effort and resources verifying signatures prior to the filing of the petition because the same will only be dismissed the moment it is filed due to the absence, as I said, of an enabling law. It is therefore an exercise in futility. Chairman Abalos plucked out only the favorable portion of the decision and disregarded the others to suit his theory that it is perfectly legal to verify signatures even without an enabling law. The decision must be construed in its entirety, or else two judicial pronouncements in the same case will be rendered contradictory.

Q: But why is the COMELEC so confident that it can hurdle perceived legal obstacles to its entertaining that scrap of paper called Gloria’s initiative?

A: Choose the best answer:

1. It honestly thinks it is correct in its interpretation of the aforecited Supreme Court decision; or

2. It sincerely believes that the ruling in Defensor-Santiago vs. Comelec was a mistake and therefore wants the Supreme Court to revisit its decision; or

3. It is hopeful that chances are better to obtain a favorable decision now than before, owing to the fact that most of the Justices who deliberated on the matter have retired while the ones who are still active today — Chief Justice Panganiban and Senior Associate Justice Puno — believed that RA 6735 met the standards of an enabling law; or maybe…

4. The Commissioners are devotees of St. Jude Thaddeus, the patron saint of desperate, impossible or lost causes or situations!

Q: Why are we so sure that this people’s initiative is a bogus one, a government-sponsored initiative?

A: 1. As early as August of last year, the government has announced and has in fact created a Consultative Commission so obssessed at removing the Senate from the face of the earth, lifting the term limits of members of the new Parliament and local elective officials, and recommending the cancellation of the local and national elections in 2007. Here are some of its disturbing proposals:

Article 7. Parliament–

Section 1. The legislative and executive powers shall be vested in a unicameral Parliament except to the extent as otherwise provided in this Constitution.

Note: Here, the provision speaks of a unicameral parliament which, in essence, abolishes the Senate.

Section 4. The Members of Parliament shall be elected for a term of five years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.

Note: The provision on term limits has been deleted which means that the Congressmen we have today, God forbid, will be the same Congressmen we will have till kingdom come. They can run for re-election for as many times their conscience allows them.

Article 12. Local Governments and Autonomous Territories–

Section 8. The term of office of elective local officials shall be five years except barangay officials, which shall be determined by law.

Note: Again, the provision on term limits for local elective officials has been deleted, which explains why your Honorable Mayor can’t wait any longer for your precious signature to be obtained.

Article 20. Transitory Provisions–

Section 7. The elections scheduled in 2007 shall be cancelled and the terms of office of all elective officials shall be extended to June 30, 2010, coinciding with those of the incumbent President and Vice-President and the twelve Senators elected in 2004. The first elections of Members of the Parliament and the first local elections under this Constitution shall be held on the second Monday of May 2010.

Section 8. Upon ratification of this Constitution, the Senate and the House of Representatives are replaced by an interim Parliament that shall exist immediately and shall continue until the Members of the Regular Parliament shall have been elected and shall have assumed office following an election as provided in the preceding section.

Note: Did I hear Sec. Bunye say that there is no truth to the allegation of no-el? Who is he kidding?

2. The government created the ChaCha Advocacy Commission with Atty. Raul Lambino at the helm, who also happens to be one of the members of the Consultative Commission;

3. The Barangay Assemblies facilitated by the DILG were precisely convened to procure the needed signatures for the so-called people’s initiative;

4. The materials, forms and paraphernalia used in the procurement of signatures were not only identical but were of such quantity and quality that no ordinary group of people or people’s organization would have the financial capacity to produce and distribute the same nationwide;

5. The “peoples organizations” supposedly under the umbrella of Sigaw ng Bayan (to which Atty. Lambino is likewise the Spokesperson) that were previously unheard of suddenly came out of the blue and proudly claimed to all and sundry that they were the “people” behind the moves to directly propose amendments to the Constitution;

6. The local government officials under GMA’s spell, elated with the prospect of no-el, eagerly spearheaded the campaign for signatures without sufficiently explaining to the mostly ignorant masa the pros and cons of the proposed amendments.

But what is appalling are the claims of some that the shift to a parliamentary system of government will SOLVE ALL our political and economic problems. Where in the world did they get that idea? Worse, they peddle their ludicrous belief through cash, freebies and dole outs designed to entice the unsuspecting masa into signing a document they do not fully understand. This is not only against public policy. This is downright immoral.

The Constitution is not the problem. It is Gloria’s stubborn defiance to heed the people’s call.