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Xavier University College of Law Lizanilla J.

Amarga (0928-507-6166)

Category: Other SOUNDING BOARD Gregory Ong By Fr. Joaquin G. Bernas, S.J. Inquirer Last updated 08:38am (Mla time) 05/28/2007 MANILA, Philippines -- The case of Justice Gregory Ong is a law professors dream material for class discussion and analysis. Ong has been extended an appointment to the Supreme Court by the President, but his qualification for the post is being challenged on the ground that he is not a natural-born Filipino citizen. Whats the score? As I see it, Justice Ongs claim to natural-born citizenship is not without foundation. Let me outline the story. From the documents I have seen and from what I know of Philippine jurisprudence, Ongs Filipino citizenship can be traced way back to his greatgrandmother, Maria Santos of Bulacan. Maria Santos was a Filipina through and through. In 1904, she bore a son by a Chinese national, Chan Kin. The child came to be known as Juan Santos, taking the family name of the mother. Since Chan Kin was Chinese, Juan was not born a Filipino (unless the parents were not married). But in 1906, when Juan was 2 years old, the father died. By Philippine jurisprudence (Talaroc vs Uy) Maria Santos regained her Filipino citizenship (on the assumption that she had married Chan Kin and thereby lost her Filipino citizenship by marrying an alien). Her minor son, Juan, followed her citizenship. But Juan did not seem to have known that he had become a Filipino citizen and was therefore registered as an alien. Juan later married Sy Siok Hian. The couple bore several children, one of whom was Dy Giok Santos, born 1933, the mother of Gregory Ong. But on the belief that he was Chinese, Juan mistakenly registered his children as Chinese. In 1958, however, Juan filed a petition for cancellation of his and his childrens registration as aliens. The petition was granted in the same year. However, the petition of Juan did not include the eldest daughter, Dy Giok Santos, Gregorys mother, because she was then already married to Eugenio Onghanseng, a Chinese national. However, in my judgment, being a legitimate daughter of a Filipino, Dy Giok Santos, like her sisters, was a Filipino when she married Eugenio in 1950 even if she was then still incorrectly registered as Chinese. But by her marriage to Eugenio she lost her Philippine citizenship. Thus Gregory Ong was born in 1953 to an alien father and to a woman who had lost her Philippine citizenship by marriage. Under such circumstance can he nevertheless be a natural-born Filipino now? In all fairness and under our Constitution, without going into the other qualifications of Gregory Ong, it is my belief that he is deemed a natural-born Filipino citizen. How do I arrive at this conclusion? I begin with the 1935 Constitution under which Gregory was born and which says that Filipino citizens include those whose mothers are citizens of

the Philippines and, upon reaching the age of majority, elect Philippine citizenship. Does this provision mean that the child must be born while the mother is still Filipino, or is it enough that the mother was Filipino at the time of marriage? If we read this provision as meaning that the child must be born at the time when the mother is still Filipino, the constitutional provision would have no meaning because under our citizenship law, then in effect, a woman lost her Filipino citizenship upon marriage to an alien if she thereby acquired the citizenship of her husband. For the provision to have a meaning, it must be read as referring to children born of mothers who were Filipinos at the time of marriage. This, in fact, is the meaning followed in Co vs House Electoral Tribunal. Thus, Gregory Ong had the right to elect Philippine citizenship upon reaching the age of majority because his mother was Filipino at the time of marriage. Did Gregory avail of the right to elect Filipino citizenship? Gregory did not elect and could not have elected Philippine citizenship when he reached majority because by then he was already a Filipino citizen. How so? In 1964, when Gregory was 11 years old, his father was naturalized and, as a minor, he automatically followed the citizenship of his father. The situation thus placed him on all fours with the case of Co vs House Electoral Tribunal which said: To expect the respondent to have formally or in writing elected citizenship when he came of age is to ask for the unnatural and unnecessary. The reason is obvious. He was already a citizen. Or, as the House Electoral Tribunal said in Co vs House Electoral Tribunal, since the Revised Naturalization Act made him a Filipino citizen when his father was naturalized, it was the law itself that had already elected Philippine citizenship for protestee by declaring him as such. Thus, not only was Gregory a citizen by virtue of the naturalization of his father but also by the perfection, upon reaching the age of majority, of the inchoate citizenship he had received from his mother through the provision of the 1935 Constitution. But did that thereby make him a natural-born citizen of the Philippines? The answer to this last question is found in the 1987 Constitution which says: Those who elect Philippine citizenship in accordance with [the 1935 Constitutional provision] shall be deemed naturalborn citizens. The purpose of this provision, as shown in the deliberations of the 1986 Constitutional Commission, was to equalize the situation of all those descended from a Filipino mother. What is important is that the child descended from a Filipino mother. Finally, can we go back and examine the citizenship of the forebears of Gregory all the way to Maria Santos? Again I quote Co vs House Electoral Tribunal: The Court cannot go into the collateral procedure of stripping [forebears] of citizenship after [their] death and at this very late date just so we can go after the [descendant]. PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 180643 March 25, 2007 ASSOCIATE JUSTICE PRESBITERO J. VELASCO, JR. SEPARATE CONCURRING OPINION ON G.R.

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

NO. 180643 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180643 Agenda for March 25, 2007 G.R. No. 180643 (Romulo L. Neri, in his capacity as Chairman of the Commission on Higher Education and as former Director General of the National Economic & Development Authority (NEDA) v. Senate Committee on Accountability of Public Officers and Investigations, et al.) S E PARATE ON VELASCO, JR., J.: This case turns on the privileged nature of what the petitioner, as then NEDA Director-General, discussed with the President regarding the scuttled ZTE-NBN contract juxtaposed with the authority of respondents Senate committees to look, in aid of legislation, into what was discussed. On September 26, 2007, petitioner, on invitation of the respondents, testified on the ZTE-NBN contract and the bribe dangled in connection thereto. When queried on what he discussed with the President after he divulged the bribe offer, petitioner declined to disclose details of their conversations which he deemed privileged. Anticipating to be asked on the same subject and on order of the President invoking executive privilege, petitioner sent regrets on his inability to appear in the November 20, 2007 hearing. Respondents then asked the petitioner to explain why he should not be cited for contempt. Explain petitioner did, with a request that he be furnished in advance with questionnaires should respondents desire to touch on new matters. The contempt threat, which would eventually be carried out with the issuance of an arrest order, is cast against a backdrop that saw petitioner staying for 11 straight hours with the investigation committees and answering all their questions, save those he deemed covered by executive privilege. Congressional investigations to elicit information in aid of legislation are valid exercise of legislative power, just as the claim of executive privilege is a valid exercise of executive power. In the Philippine setting, the term "executive privilege" means the power of the President to withhold certain types information from the courts, the Congress, and ultimately the public.1 Apart from diplomatic and military secrets and the identity of government informers, another type of information covered by executive privilege relates to information about internal deliberations comprising the process by which government decisions are reached or policies formulated.2 U.S. v. Nixon explains the basis for the privilege in the following wise: The expectation of a President to the confidentiality of his conversation and correspondences, like the claim of confidentiality of judicial deliberations x x x has all the values to which we accord deference for CONCURRING OPINI

the privacy of all citizens. x x x A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express privately. These are the considerations justifying a presumptive privilege for Presidential communications.3 Authorities are agreed that executive privilege is rooted on the doctrine of separation of powers, a basic postulate that forbids one branch of government to exercise powers belonging to another co-equal branch; or for one branch to interfere with the other's performance of its constitutionallyassigned functions. It is partly in recognition of the doctrine that "presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court x x x or executive sessions of either house of Congress x x x cannot be pried open by a co-equal branch of government."4 And as the Court aptly observed in Gudani v. Senga,5 the fact that the executive branch is an equal branch to the legislative creates a "wrinkle" to any basic rule that persons summoned to testify before Congress must do so. So, was the eventual issuance of the assailed citation and arrest order justified when the duly subpoenaed petitioner declined to appear before the respondents' hearing through a claim of executive privilege "By Order of the President"? I turn to the extent and limits of the legislative power of inquiry in aid of legislation. What was once an implicit authority of Congress and its committees to conduct hearings in aid of legislation with the concomitant power necessary and proper for its effective discharge6 is now explicit in the 1987 Constitution.7 And this power of inquiry carries with it the authority to exact information on matters which Congress is competent to legislate, subject only to constitutional restrictions.8 The Court, in Arnault v. Nazareno,9 acknowledged that once an inquiry is established to be within the jurisdiction of a legislative body to make, the investigation committee has the power to require the witness to answer any question pertinent to the subject of the inquiry and punish a recalcitrant or unwilling witness for contempt. But Bengson v. Senate Blue Ribbon Committee10 made it abundantly clear that the power of Congress to conduct inquiries in aid of legislation is not "absolute or unlimited." Section 21, Article VI of the Constitution providing: 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. establishes what we tagged in Senate v. Ermita (Ermita) as "crucial safeguards" that circumscribe the legislative power of inquiry. The provision thus requires the inquiry to: (1) properly be in aid of legislation, else, the investigating committee acts beyond its power; without a valid legislative purpose, a congressional committee is without authority to use the compulsory process otherwise available in the conduct inquiry in aid of legislation;11 (2) be done in accordance with duly published rules of procedure, irresistibly implying the constitutional infirmity of an

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

inquiry conducted without or in violation of such published rules; and (3) respect the rights of persons invited or subpoenaed to testify, such as their right against self-incrimination and to be treated in accordance with the norms individuals of good will observe. The Communications between Petitioner and the President are Covered by Executive Privilege; the Privilege was Properly Claimed by and for Petitioner Executive Secretary Ermita, in line with Ermita, duly invoked, by order of the President, executive privilege, noting, in a letter12 to the Chairperson of the Blue Ribbon Committee that the following questions: (1) Whether the President followed up the (NBN) project? (2) Were you dictated to prioritize the ZTE? and (3) Whether the President said to go ahead and approve the project after being told about the alleged bribe? previously addressed to petitioner Neri, but left unanswered, "[fall] under conversations and correspondence between the President and public officials which are considered executive privilege." And explaining in some detail the confidential nature of the conversations, Sec. Ermita's letter further said: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, [Sec. Neri] cannot provide the Committee any further details of these conversations without disclosing the very thing the privilege is designed to protect. The information the petitioner sought to keep undisclosed regarding the ZTE-NBN project dealt with high-level presidential communications with a subordinate over a matter involving a foreign power. Allowing such information to be extracted in an openended Senate committee investigation after an 11hour grilling Neri was subjected to is tantamount to allowing a substantial, and unreasonable, incursion into the President's recognized right to confidentiality and to candidly interact with her advisers, a right falling under the aegis of executive privilege. The concept and assertion of executive privilege are after all intended, following the Ermita precedent, to protect a basic interest of the President, that is, the necessity that she receives candid and unfettered advice from his subordinates and that the latter be able to communicate freely and openly with her and with each other. Respondents, in their Comment and during the oral arguments, stressed, and correctly so, that executive privilege cannot validly be invoked to conceal a crime, the point apparently being that the President knew of, or worse, was a player in the alleged ZTENBN bribery drama. It ought to be pointed out, however, that it is a bit presumptuous to suppose that what President and the petitioner discussed was

about a crime. And would not executive privilege be reduced into a meaningless concept if, to preempt its application, any congressional committee raises, if convenient, the crime angle? In Ermita, the Court, citing US case law,13 outlined the steps to follow in claiming executive privilege. Foremost of these are: (1) it must be clearly asserted, which petitioner did, and by the Government to which the privilege belongs; (2) there must be a formal claim of privilege, lodged by the head of the department having control over the matter; and 3) the statement of the claim must be specific and the claim must state the reasons for withholding the information. Save for some broad statements about the need to protect military, diplomatic, and national security secrets, all the requirements respecting the proper manner of making the claim have satisfactorily been met. As we explained in Ermita, the Senate cannot require the executive to state the reasons for the claim with such particularity as to veritably compel disclosure of the information which the privilege is designed to protect in the first place. It may be stated at this juncture that respondents committees have certain obligations to comply with before they can exact faithful compliance from a summoned official claiming executive privilege over the matter subject of inquiry. Again, Ermita has laid out the requirements to be met under that given scenario. They are, to me, not mere suggestions but mandatory prescriptions envisaged as they are to protect the rights of persons appearing or affected by the congressional inquiries. These requirements are: First, the invitation or subpoena shall indicate the possible questions to be asked; second, such invitation or subpoena shall state the proposed statute which prompted the need for the inquiry; and third, that the official concerned must be given reasonable time to apprise the President or the Executive Secretary of the possible need for invoking executive privilege. For the purpose of the first requirement, it would be sufficient if the person invited or subpoenaed is, at least, reasonably apprised and guided by the particular topics to be covered as to enable him to properly prepare. The questions need not be couched in precise details or listed down to exclude all others. Annex "B" of the Petition, or the subpoena ad testificandum dated November 13, 2007 addressed to the petitioner literally makes no reference to any intended legislation. It did not also accord him with a fair notice of the questions likely to be asked. As it were, the subpoena contained nothing more than a command for the petitioner to appear before the Blue Ribbon Committee at a stated date, then and there to "testify on what [he] know[s] relative to the subject matter under inquiry." And lest it be overlooked, it is not clear from Annex "B" what matters relating to a proposed bill, if there be any, cannot be addressed without information as to the specifics of the conversation between the President and the petitioner. In net effect, the subpoena thus issued is legally defective, issued as it were in breach of what to me are mandatory requirements. Accordingly, the noncompliance with the subpoena is, under the premises, justifiable. Similarly, respondent committees are precluded from imposing sanctions against the person, petitioner in this instance, thus

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

subpoenaed should the latter opt not to comply with the subpoena. Grave Abuse of Discretion tainted the issuance of the Order of Arrest The perceived obstructive defiance of the subpoena (Annex "B", Petition) triggered the issuance of the assailed contempt and arrest order. It behooves the Court to now strike the said order down, not only because its existence is the by-product of or traceable to, a legally infirm subpoena, but also because the Senate Rules of Procedure Governing Inquiries in Aid of Legislation does not authorize the arrest of unwilling or reluctant witness not before it. Surely, respondents cannot look to Sec. 18 of the rules of procedure governing legislative inquiries as the arrest-enabling provision since it only speaks of contempt in the first place. Sec. 18 reads: Sec. 18. Contempt. The Committee, by a majority vote of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members xxx Such witness may be ordered by the Committee to be detained in such place at it may designate under the custody of the Sergeant-at-Arms until he agrees to produce the required documents or to be sworn or to testify, or otherwise purge himself of that contempt. I may even go further. Internal rules of procedure cannot plausibly be the source of the power to issue an arrest order and, as has been the practice, for the security unit of the Senate to enforce the order. There must, I submit, be a law for the purpose and where the security unit is given the enforcing authority. The power to issue an order of arrest power is such an awesome, overreaching prerogative that the Constitution, no less, even sets strict conditions before a warrant of arrest will issue against a suspected criminal.14 The Court is very much aware that Sec. 3(c) of the Rules of the Senate empowers the Senate President to "sign x x x orders of arrest." It cannot be overemphasized, however, that the order for the petitioner's arrest was a joint committee action which naturally ought to be governed by the Rules of Procedure Governing Inquiries in Aid of Legislation, not the Rules of the Senate. It would be a sad commentary if Senate committees can choose to ignore or apply their very own rules when convenient, given that violation of these rules would be an offense against due process.15 But conceding for the nonce the authority of the respondents to order an arrest, as an incident to its contempt power, to be effected by their own organic security complement, the assailed order would still be invalid, the same not having been approved by the required majority vote of the respective members of each of the three investigating committees. Respondents veritably admitted the deficiency in votes when they failed to document or otherwise prove despite a commitment to do so during the oral arguments the due approval of the order of citation and arrest. And unable to comply with a promised undertaking, they offer the lame excuse that the matter of approval of the citation and arrest order is a non-issue.

Philippine jurisprudence remains unclear on what Congress may do should a witness refuse to obey a subpoena. Fr. Bernas has stated the observation, however, that there is American jurisprudence which recognizes the power of Congress to punish for contempt one who refuses to comply with a subpoena issued by a congressional investigating body, albeit the practice seems to be that the Congress asks a court to directly order compliance with a subpoena.16 Conclusion In sum, petitioner had not acted in a manner to warrant contempt, arrest and detention. Far from it. He appeared before respondents committees in the hearing of September 26, 2007 which, to repeat, lasted for 11 hours where he answered all the questions not requiring, in response, divulging confidential matters. Proper procedures were followed in claiming executive privilege, as outlined in Ermita. In due time, he replied to the show-cause order the respondents issued. Considering the circumstances, as discussed, under which it was issued, the assailed January 30, 2008 order should be struck down as having been issued in grave abuse of discretion. I, therefore, vote to grant the petition.

PRESBITERO J. VELASCO, JR. Associate Justice Footnotes 1 Senate v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1. 2 Id. 3 418 U.S. 683 (1974); cited in Almonte v. Vasquez, G.R. No. 95367, May 23, 1995, 244 SCRA 286. 4 Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152, 188-189. 5 G.R. No. 170165, August 15, 2006, 498 SCRA 671. 6 Sabio v. Gordon, G.R. No. 174340, October 17, 2006, 504 SCRA 704; citing McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 7 Art. VI, Sec. 21. 8 Briggs v. MacKellar, 2 Abb. Pr. 30 (N.Y.) 1864), cited in Sabio v. Gordon, supra. 9 87 Phil. 29 (1950). 10 G.R. No. 89914, November 20, 1991; 203 SCRA 767, citing Arnault. 11 Bengson v. Senate Blue Ribbon Committee, supra. 12 Sec. Ermita's letter dated Nov. 15, 2007 to Sen. Alan Peter Cayetano, Annex "C," Petition.

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

13 U.S. v. Reynolds, 345 U.S 1, 73 S. Ct. 528. 14 Art. III, Sec. 2 of the Constitution provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched or the persons and things to be seized. 15 Bernas, The 1987 Constitution of the Philippines: A Commentary (2003), p. 740 16 J.G. Bernas, "Sounding Board: Shielding the President." Philippine Daily Inquirer, February 11, 2008. The Lawphil Project - Arellano Law Foundation Sounding Board Banana planters vs City of Davao By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 02:20:00 01/26/2009 THE City of Davao passed an ordinance prohibiting aerial spraying in all plantations within the province and criminally penalizing violation of the ordinance. Obviously it was a health measure. The ordinance was to take effect three months after approval. The banana planters challenged the constitutionality of the ordinance mainly on two basic grounds: (1) they claimed the ordinance was oppressive and confiscatory and (2) it violated equal protection of law. The argument of oppressiveness was based on a number of factual arguments: (1) the impossibility of switching to other forms of spraying within three months and the enormous cost it would take to accomplish the switch; (2) the harm to the health of workers who would do the manual spraying; (3) and the lack of scientific proof that aerial spraying was harmful to health. As to equal protection, the ordinance was challenged on the argument that it prohibited all forms of aerial spraying. The Court of Appeals based in Cagayan de Oro City, by a vote of 4 to 1, upheld the contention of the planters that the ordinance was unconstitutional. I am sure, however, that the CAs decision will not be the end of the story. As the feisty editor of SunStar Davao said, it will be a long haul. I believe that when the case goes to the Supreme Court , it will give the Court the opportunity to elaborate on how the due process and equal protection clauses of the Constitution operate. The case in essence is a conflict between the right to property and the right to life. The accepted jurisprudence is that in the hierarchy of rights life normally prevails over property. This principle will certainly play a role in any review of the Court of Appeals decision. Strangely, while the challengers of the ordinance expressed concern about the health of farm workers

doing manual spraying, no similar concern was expressed about the health of the other people in the vicinity. On the battle about the impossibility of carrying out the switch from aerial spraying within the three-month period set by the ordinance, the challengers set out a parade of experts. Contrary assessments were also presented by the City of Davao, but the Court of Appeals belittled the effort of the City saying that it betrays its lack of technical understanding on the intricacies of the engineering works required for the efficient operation of banana plantations, and exposes its indifference to the corporeal rights [sic] of banana planters to protect and enhance their investments. Will the Supreme Court accept this conclusion or will it send the matter back for further factual evaluation? It is also interesting that the Court of Appeals itself did not find itself satisfied with the evidence on whether the sprays being used were safe or not. It said: We are skeptical of the foregoing claims on the seemingly fool proof safety of pesticides or fungicides, both as chemical substances and in terms of human exposure to the same, since petitionersappellant already admitted that the pesticides or fungicides they used would prejudice the health of their workers if manually sprayed. The admission would sensibly mean that exposure to such substances, even in the diluted form, poses danger to the human health. The CA continued: Our opinion is not necessarily a categorical indictment against the degree of safety in the usage of these substances. However, without preponderant and actual empirical proof of the testimonies of petitioners-appellants witnesses, no conclusion can be reached as to whether or not the use of pesticides or fungicides is safe. On the other hand, the court also said that the respondents did not prove that the aerial spraying of substances is the proximate cause of the various ailments (itchiness and irritation of skin, contraction and tightening of chest, minimal tuberculosis, recurring stomachaches, nausea and lost appetite) they allegedly suffer. On the basis of these two uncertainties the court decided to favor the planters. This raises the issue whether in a conflicting situation like this where the court is uncertain as to who is wrong and who is right a court should substitute its judgment for that of the legislator. Apparently the legislator had made its judgment on the basis of evidence it had found and on labels on the solutions saying, as the editor of SunStar Davao enumerates: Harmful if absorbed through the skin, may cause nose, throat, eyes and skin irritation. Do not breathe dust of spray mist. This pesticide is toxic to fish. Drift and runoff from treated areas may be hazardous to aquatic organisms in neighboring areas.

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

During aerial application, human flaggers must be in enclosed cabs. What of the lack of equal protection? The argument is that the ordinance prohibits the use of all sprays without distinction. Here again I am sure that the Supreme Court will have the opportunity to explain how the equal protection clause operates. But first, does the ordinance prohibit all forms of spray solutions or only those currently being used in the plantations? In making allowable classifications, jurisprudence uses two possible approaches: the strict scrutiny approach and the liberal or rational approach. The strict scrutiny approach is used to measure classifications based on race, national origin, religion, alienage, denial of the right to vote, interstate migration, access to courts and other rights recognized as fundamental. The liberal or rational approach is used in economic matters: briefly, if the legislator finds a rational basis for making the classification, even if not conclusive, the court will accept it as valid. Did the Court of Appeals use the strict scrutiny approach? In conclusion, I agree with the editor of SunStar Davao that the dispute will be a long haul. Sounding Board A balanced and healthful ecology By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 02:18:00 02/02/2009 A PROVISION in the 1987 Constitution, which once some saw as unnecessary, has been gradually gaining attention. Section 16 of Article II says: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. In tandem with it is Section 15, which says: The State shall protect and promote the right to health of the people and instill health consciousness among them. Section 16 is unusual among those found in Article II in that, whereas almost all the other provisions in the Article are not self-executing but need implementing legislation to make them effective, Section 16 has been recognized by the Supreme Court as selfexecuting like the provisions in the Bill of Rights. As early as 1993 the Supreme Court already recognized it, in conjunction with the right to health, as anchoring the right of a group of minors to challenge logging practices in the country. The minors, speaking for themselves and for generations yet unborn under the concept of inter-generational justice, asked the Court to order a stop to the harmful effects flowing from deforestation. The Court upheld their right to raise the challenge as flowing from their right to a balanced and healthful ecology and the correlative duty to refrain from impairing the environment. Not long after that the Court upheld the right of the Laguna Lake Development Authority to be responsible for the ecological protection of Laguna Lake against the claimed authority of the local governments around the lake. The Supreme Court linked Section 16 with the Universal Declaration of Human Rights and the Alma Conference Declaration

of 1978. Along a similar vein, in 2007 the Supreme Court upheld the validity of an ordinance of the City of Manila requiring the oil companies to close and transfer the Pandacan Terminals to another location within a specified period. The latest on this subject came out only last December. In Metropolitan Manila Development Authority v. Residents of Manila Bay, the Supreme Court ordered various agencies of government to clean up Manila Bay. All these have come about because of the desire of the state as enunciated in the Constitution to ensure for the people a healthy environment. This constitutional policy, even if already self-executing, has been injected with an element of urgency through various laws. The latest development on the subject is an ordinance promulgated by the City of Davao ordering a stop to aerial spraying of fungicides in the plantations of Davao. I wrote about this last week saying that this is unfinished business. The ordinance was brought to court and one of the issues was whether conclusive evidence existed to prove that aerial spraying was the cause of ailments reported as affecting some people in the area. The Court of Appeals found no conclusive evidence and saw this as one of the reasons why the ordinance should be invalidated. (Another reason was the alleged impossibility and enormous cost of switching to a different method of speeding fungicides.) About the issue of lack of evidence, Fr. Jett Villarin, S.J., president of Xavier University in Cagayan de Oro and a scientist whose area of expertise is environmental matters, made some interesting observations in a letter he sent me. He says: Environmental laws and regulations must abide by the precautionary principle. This principle simply holds that uncertainty in the science should not be an obstacle or excuse to postpone mitigating action. It is a conservative principle which in the case of scientific uncertainty places the burden of proof on the polluter, not on the affected, i.e. the polluter has the responsibility to prove that what is being spewed into the environment is not harmful. [The Court of Appeals had said that the planters had failed to do this.] Corollary, it is not the responsibility of the affected to prove that the effluent is poisonous. In view of scientific uncertainty, the presumption is that the chemical is harmful. Aerial spraying is better deployed in advanced countries where there is mechanized agriculture and land buffers are maintained. In the Philippines and other developing countries, communities live close to the plants and the land they till. The degree of harm depends on the lifetime, human exposure and concentration levels of the chemical. These will depend on the state of the atmosphere. Greater control of the dispersion of chemicals is possible in stable atmospheres. Tropical atmospheres are frequently unstable and less predictable. You only need to ask a fisherman who knows how locally unpredictable amihan can be these days.

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

If I were a banana plant manager, I would seriously weigh the marginal cost of mitigating the impact of aerial spraying or the total cost of adopting another technology alongside the externality costs of possible medical, rehabilitation, and legal class action in the future. If three months are not enough to change systems, I would negotiate for a protracted withdrawal schedule. Time, like air, can dilute costs. If I were a banana farmer, I would try to convince my amo that people are better than planes. People can say thank you. Planes can only fly. As a priest, I hope that our judges and our agriculturists see that heaven might be an aerial place and that Gods bottom line might be different from theirs. Of course, the last two paragraphs are neither science nor law. But they can be of greater significance than either science or law, or bananas. Sounding Board More on Davao ecology By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 02:08:00 02/09/2009 RECENTLY I received a letter-comment on what I have written about the Davao aerial spraying controversy. Since it was not sent as a letter to the editor, I do not feel at liberty to disclose its authorship. Nevertheless, I feel free to comment on some of the points raised. In one of my columns I wrote that the issue in the controversy was basically a conflict between the right to property and the right to life. The letter writer characterized this as unfair and even bordering on bad faith, stacking the cards before the members of the high court. I doubt that the members of the high court will see the characterization as stacking the cards because I am sure that the members of the high court do not have a narrow view of the meaning of the right to life. The right to life is not just about keeping body and soul together. It includes the right to a good and healthy life. This is the whole point of Article II, Section 16 when it says: The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. One need not worry that talking about a conflict between the right to property and the right to life will warp the minds of magistrates. Magistrates are called magistrates because they are familiar with developments in jurisprudence, including environmental law. I would be unfair to them if I were to assume that they have not heard about developments in jurisprudence. Some of the most eloquent statements on environmental protection have come from magistrates. To cite only two examples, the International Court of Justice said in the Danube Dam Case: The protection of the environment is a ... vital part of contemporary human rights doctrine, for it is a

sine qua non for numerous human rights such as the right to health, and the right to life itself. Speaking of environmental protection, US Supreme Court Justice William Douglas wrote: A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use addressed to family needs ... The police power is not confined to eliminating filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion, and clean air make the area a sanctuary for people. So much about magistrates. The letter to me also says: Aerial spraying has been practiced in the pioneering banana plantations in Davao City for more than four decades now. Perhaps, the most eloquent evidence for us is that there have been no outbreaks or preponderant incidences of illnesses caused by aerial spraying over the years. But the point is: Must the City of Davao wait for outbreaks and preponderant incidences before it can be allowed to act? The whole point of the precautionary principle is that police power must act before harm happens. The Rio Declaration of 1992, one of the growing number of examples of soft law on environmental protection, already says: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Is there already a basis for precaution in the situation of the Davao banana farms? I can only answer this question with what the Court of Appeals said after its examination of the evidence presented. The Court said: We are skeptical of the foregoing claims on the seemingly foolproof safety of pesticides or fungicides, both as chemical substances and in terms of human exposure to the same, since petitioners-appellant already admitted that the pesticides or fungicides they used would prejudice the health of their workers if manually sprayed. The admission would sensibly mean that exposure to such substances, even in the diluted form, poses danger to the human health. Unfortunately four magistrates of the Court of Appeals do not seem to accept the validity of the precautionary principle. Hence they are willing to wait for outbreaks and preponderant incidences to happen. The letter also faults me for saying that the planters seem to be concerned only with their workers and not with the larger community. I based this observation on my examination of the evidence summarized in the Court of Appeals decision. Apparently my reading of the evidence summarized by the Court of Appeals does not reflect the factual situation as to intention. As my letter writer says to me, A closer reading of our court submissions shows that to be utterly false. We are equally concerned not only with the health of our own workers but also the residents in communities near our plantations and the

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

environment. Ones life is no more important than the other. Clearly, all our contentions are meant for the protection of public health in general and the preservation of the environment that we all share. It is not my intention to question the love of neighbor practiced by planters. I only wish they would express their love differently. http://opinion.inquirer.net/inquireropinion/columns/vie w/20090209-188187/More-on-Davao-ecology *Sounding Board : Three emergency situations * * From: "pong" <pong944@xxxxxxxx> * Date: Mon, 27 Feb 2006 17:00:38 -0800 First posted 04:56am (Mla time) Feb 27, 2006 By Fr. Joaquin G. Bernas, S.J. Inquirer *Editor's Note: Published on page A15 of the February 27, 2006 issue of the Philippine Daily Inquirer * IN 2002 NATIONAL SECURITY ADVISER ROILO Golez set alarm bells ringing when he came out of a Malacaang conference, announcing that President Macapagal-Arroyo was ready to declare a state of emergency in General Santos. The announcement conjured up visions of arbitrary arrests and indefinite detention. Then, as now, we had not yet recovered from the martial law trauma. Hence the alarm bells had to be doused immediately. Golez himself clarified that a state of emergency is a "generic term" which enables the government to choose from a menu of options. Last Friday, when Malacaang first hinted at a possible declaration of a national state of emergency, alarm bells erupted. It again conjured up visions of arbitrary arrests and indefinite detention. And a glib Malacaang spokesperson did not help to assuage fears. Neither did the excessive zeal of some minions of the law. The excessive zeal only continues to threaten public safety. What is a state of emergency all about and what additional powers, if any, does it give the executive arm? There are in the Constitution three situations in which government is called upon to deal with emergency; but in none of the texts is emergency defined. In fact, in the most severe of these situations, dealt with by Article VII, Section 18, the word emergency is not even mentioned. It is simply described. Article VII, Section 18 speaks of "lawless violence, invasion or rebellion" which challenge "public safety." These are situations

which threaten law and order and national security. They are situations which call for immediate action. Clearly they are emergency situations. And it is the President who is authorized to make the initial assessment whether these situations exist. Moreover, having verified their existence, she is authorized by the Constitution to deal with them through a platter of graduated powers. The most important is the power to impose martial law which broadens the police power of the President. Less in severity is the power to suspend the privilege of the writ of habeas corpus which authorizes the executive to limit physical liberty. The mildest is the power to call on the Armed Forces to come to the aid of the police in the prevention or suppression of lawless violence or rebellion. It is this last which President Arroyo used when she issued Proclamation 1017. And to all appearances, her minions are reading it as a declaration of war. Does calling on the Armed Forces give the President additional executive powers? In substance, no; but it does give her more vigor in the enforcement of law and order which is her daily duty anyway. In the exercise of her law enforcement power, she can make use of all the legal instruments available for law enforcement and within the limits prescribed by the Constitution. Calling on the Armed Forces does not authorize her to cross constitutional demarcation lines. But the danger of abuse is significantly enhanced. Now the iron fist is more and more showing behind the mask. Another provision on emergency is Article VI, Section 23(2) which says: "In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy." Here, war is certainly considered a national emergency situation but it is not the only emergency situation envisioned. The provision also covers emergency situations mentioned by Article VII, Section 18 as well as situations created by epidemics, typhoons, earthquakes or other natural calamities. But Congress must first agree that a national emergency exists, and the extent and the duration of the powers conferred on the President are determined by Congress. The third emergency situation is found in Article XII, Section 17 which says: "In times of national emergency, when the

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." In trying to understand this provision, which among other things leaves "national emergency" undefined, it is important to recall its provenance. It was born during the martial law regime. You don't find a similar provision in the 1935 Constitution. Moreover, the only time it was used was during martial law. In fact, this provision got into the 1973 Constitution, inspired by Marcos' Letter of Instruction (LOI) No. 2, dated 22 September 1972. This LOI instructed the Secretary of National Defense to take over "the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways ... for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency." It was done in the exercise of martial law powers and it was among the executive acts which the Constitutional Convention wanted ratified through Section 3(2), Article XVII of the 1973 Constitution. In my view, therefore, Article XII, Section 17 embodies a martial law power of the President. It is noteworthy, however, that in referring to Article XII, Section 17, Ms Arroyo, in 1017, simply used it as a springboard for declaring a national state of emergency; she did not attempt to exercise the power embodied in the provision. In fact, she omitted citing the power that the provision embodies. But it is a veiled threat which PNP chief Arturo Lomibao has unveiled. ======================================== ==== G.R. NO. 174153 RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED VOTERS, petitioners, versus THE COMMISSION ON ELECTIONS, respondent. TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors, RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors, SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,

WORKERS ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS, petitioners-intervenors,

ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors,

ALTERNATIVE LAW GROUPS, INC., oppositorintervenor, ATTY. PETE QUIRINO-QUADRA, oppositorintervenor, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA, GABRIELA WOMENS PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors, LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-BARAQUEL, oppositors-intervenors, LUWALHATI ANTONINO, oppositor-intervenor, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-intervenors, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. OSMENA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors, JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-intervenors, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L. SALVADOR AND RANDALL C. TABAYOYONG, oppostorsintervenors, SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor; G.R. NO. 174299 MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG, petitioners, versus COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR. AND COMMISSIONERS RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE AND PETER DOE, respondents.

PHILIPPINE TRANSPORT AND GENERAL

Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

ed: 25, 2006

Promulgat October

x----------------------------------------------------------------------------------------x CONCURRING OPINION SANDOVALGUTIERREZ, J.: Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in choosing ones battlecry, lest it does more harm than good to ones cause. In its original context, the complete version of this Latin phrase means exactly the opposite of what it is frequently taken to mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, nec audiendi qui solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit, meaning, And those people should not be listened to who keep on saying, The voice of the people is the voice of God, since the riotousness of the crowd is always very close to madness.[1] Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon petitioners and their allies that they may reflect upon the sincerity and authenticity of their peoples initiative. History has been a witness to countless iniquities committed in the name of God. Wars were waged, despotism tolerated and oppressions justified all these transpired as man boasted of Gods imprimatur. Today, petitioners and their allies hum the same rallying call, convincing this Court that the peoples initiative is the voice of the people and, therefore, the voice of God. After a thorough consideration of the petitions, I have come to realize that man, with his ingenuity and arrogance, has perfected the craft of imitating the voice of God. It is against this kind of genius that the Court must guard itself. The facts of the case are undisputed. In 1996, the Movement for Peoples Initiative sought to exercise the power of initiative under Section 2, Article XVII of the Constitution which reads: 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 exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam Defensor Santiago, et al., entitled Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding members of the Peoples Initiative for Reforms, Modernization and

Action (PIRMA), respondents.[2] The case was docketed as G.R. No. 127325. On March 19, 1997, this Court rendered its Decision in favor of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. A majority of eight (8) Justices fully concurred with this ruling, while five (5) subscribed to the opposite view. One (1) opined that there is no need to rule on the adequacy of R.A. No. 6735. On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1) filed an inhibition and the other one (1) joined the minority opinion. As a consequence, of the thirteen (13) Justices who participated in the deliberation, six (6) voted in favor of the majority opinion, while the other six (6) voted in favor of the minority opinion.[3] A few months thereafter, or on September 23, 1997, the Court dismissed a similar case, entitled Peoples Initiative for Reform, Modernization and Action (PIRMA) v. Commission on Elections[4] on the ground that the COMELEC did not commit grave abuse of discretion when it dismissed PIRMAs Petition for Initiative to Propose Amendments to the Constitution it appearing that that it only complied with the dispositions in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC) promulgated on March 19, 1997, and its Resolution of June 10, 1997. Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise that the case at bar is not the proper vehicle for such re-examination. Five (5) Justice opined otherwise. This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local Authorities of the Philippines (ULAP), have gathered signatures in support of the proposed amendments to the Constitution, which entail a change in the form of government from bicameral-presidential to unicameral-parliamentary, thus: A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows: Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member. (2) Each Member of Parliament shall be a naturalborn citizen of the Philippines, at least twenty-five years old on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his district for a term of five years without limitation as to the number thereof, except those under the party-list system

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

which shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from the parliamentary districts. B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows: Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program of government. C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of government, there shall be a new Article XVIII, entitled Transitory Provisions, which shall read, as follows: Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament. (2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and responsibilities of Prime Minister under Article VII as amended. Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatium up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to Congress, Senate, House of Representatives and Houses of Congress shall be changed to read Parliament; that any and all references therein to Member(s) of Congress, Senator(s) or Member(s) of Parliament and any and all references to the President and/or Acting President shall be changed to read Prime Minister. Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references therein to Congress, Senate, House of Representatives

and Houses of Congress shall be changed to read Parliament; that any and all references therein to Member(s) of Congress, Senator(s) or Member(s) of the House of Representatives shall be changed to read as Member(s) of Parliament and any and all references to the President and/or Acting President shall be changed to read Prime Minister.

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are heads of executive departments. (2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among themselves. (3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June 2010. (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. Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be delegated to him by the incumbent President. (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. The duty elected Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of the incumbent President and Vice President. Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the abstract of the proposed amendments, quoted as follows: Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution, changing the form of government from the present bicameralpresidential to a unicameral-parliamentary system of government, in order to achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions for the orderly shift from one system to another?

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the COMELEC a Petition for Initiative to Amend the Constitution.[5] Five (5) days thereafter, they filed an Amended Petition alleging that they are filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on the signature sheets attached thereto. They claimed that the signatures of registered voters appearing on the signature sheets, constituting at least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per cent (3%) of all the registered voters, were verified by their respective city or municipal election officers. Several organizations opposed the petition. [6] In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as basis this Courts ruling in Santiago, permanently enjoining it from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system. Hence, the present petition for certiorari and mandamus praying that this Court set aside the COMELEC Resolution and direct the latter to comply with Section 4, Article XVII of the Constitution, which provides: Sec. 4 x x x Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition. I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the COMELEC Chairman and Commissioners be required to show why they should not be punished for contempt[7] of court for disregarding the permanent injunction issued by this Court in Santiago. I Respondent COMELEC did not act with grave abuse of discretion Without necessarily brushing aside the other important issues, I believe the resolution of the present petition hinges on this singular issue -- did the COMELEC commit grave abuse of discretion when it denied Lambino, et al.s petition for initiative to amend the Constitution on the basis of this Courts Decision in Santiago v. COMELEC? In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick is the attendance of grave abuse of discretion on the part of the COMELEC. Jurisprudence teaches that an act of a court or

tribunal may only be considered as committed in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.[8] The Resolution of respondent COMELEC denying due course to the petition for initiative on the basis of a case (Santiago) decided by this Court cannot, in any way, be characterized as capricious or whimsical, patent and gross, or arbitrary and despotic. On the contrary, it was the most prudent course to take. It must be stressed that in Santiago, this Court permanently enjoins respondent COMELEC from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted. It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As succinctly stated by Chief Justice Artemio V. Panganiban (then Associate Justice) in his Separate Opinion in the subsequent case of PIRMA vs. COMELEC:[9] x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decisions ratio decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as grave abuse of discretion and contumacious disregard of this Courts supremacy as the final arbiter of justiciable controversies. It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts, tribunals and administrative bodies exercising quasijudicial functions are obliged to conform to its pronouncements. It has the last word on what the law is; it is the final arbiter of any justifiable controversy. In other words, there is only one Supreme Court from whose decisions all other courts should take their bearings.[10] As a warning to lower court judges who would not adhere to its rulings, this Court, in People v. Santos,[11] held: Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on the matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his duty to apply the law as interpreted by the Highest Court of the Land, and that any deviation from a principle laid down by the latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And if despite of what is here said, a Judge still believes that he cannot follow Our rulings, then he has no other alternative than to place himself in the position that he could properly avoid the duty of

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having to render judgment on the case concerned (Art. 9, C.C.), and he has only one legal way to do that. Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of Lambino, et al. for it merely followed this Courts ruling in Santiago. Significantly, in PIRMA vs. COMELEC,[12] a unanimous Court implicitly recognized that its ruling in Santiago is the established doctrine and that the COMELEC did not commit grave abuse of discretion in invoking it, thus: The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its resolution on June 10, 1997. Indeed, I cannot characterize as a grave abuse of discretion the COMELECs obedience and respect to the pronouncement of this Court in Santiago. II The doctrine of stare decisis bars the re-examination of Santiago It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as against five (5) Justices) concurred in declaring R.A. No. 6735 an insufficient law. When the motion for reconsideration was denied via an equally-divided Court or a 6-6 vote, it does not mean that the Decision was overturned. It only shows that the opposite view fails to muster enough votes to modify or reverse the majority ruling. Therefore, the original Decision was upheld.[13] In Ortigas and Company Limited Partnership vs. Velasco,[14] this Court ruled that the denial of a motion or reconsideration signifies that the ground relied upon have been found, upon due deliberation, to be without merit, as not being of sufficient weight to warrant a modification of the judgment or final order. With Santiago being the only impediment to the instant petition for initiative, petitioners persistently stress that the doctrine of stare decisis does not bar its re-examination. I am not convinced. The maxim stare decisis et non quieta movere translates stand by the decisions and disturb not what is settled.[15] As used in our jurisprudence, it means that once this Court has laid down a principle of law as applicable to a certain state of facts, it would adhere to that principle and apply it to all future cases in which the facts are substantially the same as in the earlier controversy.[16] There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness. Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the evenhanded administration of justice in the courts.[17] That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice: The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.[18] Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior decisions, It is x x x a fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This policy x x x is based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.[19] Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law. Here, petitioners failed to discharge their task. Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years ago. During that span of time, the Filipino people, specifically the law practitioners, law professors, law students, the entire judiciary and litigants have recognized this Courts Decision as a precedent. In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even the legislature has relied on said Decision, thus, several bills have been introduced in both Houses of Congress to cure the deficiency. I cannot fathom why it should be overturned or set aside merely on the basis of the petition of Lambino, et al. Indeed, this Courts conclusion in Santiago 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 remains a precedent and must be upheld. III The proposed constitutional changes constitute

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revisions and not mere amendments Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus: Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of threefourths of all its members; or (2) A Constitutional Convention.

Revision. xxx xxx xxx MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield to a few questions? MR. DAVIDE: President. With pleasure, Madam

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 votes, of which every legislative district must be represented by at least three per centum of the registered voters therein. x x x. (Emphasis supplied) At the outset, it must be underscored that initiative and referendum, as means by which the people can directly propose changes to the Constitution, were not provided for in the 1935 and 1973 Constitutions. Thus, under these two (2) Constitutions, there was no demand to draw the distinction between an amendment and a revision, both being governed by a uniform process. This is not so under our present Constitution. The distinction between an amendment and a revision becomes crucial because only amendments are allowed under the system of peoples initiative. Revisions are within the exclusive domain of Congress, upon a vote of three-fourths of all its members, or of a Constitutional Convention. The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers only amendments, thus: The sponsor, Commissioner Suarez, is recognized. MR. SUAREZ: Thank you, Madam President.

MR. MAAMBONG: My first question, Commissioner Davides proposed amendment on line I refers to amendments. Does it not cover the word revision as defined by Commissioner Padilla when he made the distinction between the words amendments and revision? MR. DAVIDE: No, it does not, because amendments and revision should be covered by Section 1. So insofar as initiative is concerned, it can only relate to amendments not revision MR. MAAMBONG: Thank you.[20]

Considering that the initiative on the Constitution only permits amendments, it is imperative to examine whether petitioners proposed changes partake of the nature of amendments, not revisions. The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The Executive Department). It further includes Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from the bicameralpresidential to a unicameral-parliamentary form of government. Succinctly, the proposals envision a change in the form of government, from bicameral-presidential to unicameral-parliamentary; conversion of the present Congress of the Philippines to an Interim National Assembly; change in the terms of Members of Parliament; and the election of a Prime Minister who shall be vested with executive power. Petitioners contend that the proposed changes are in the nature of amendments, hence, within the coverage of a peoples initiative. I disagree. The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986 Constitutional Commission, characterized an amendment and a revision to the Constitution as follows: An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the document to determine how and to what extent they should be

May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2: The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters. This completes the blanks appearing in the original Committee Report No. 7. This proposal was suggested on the theory that this matter of initiative which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or

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altered.[21] Obviously, both "revision" and amendment" connote change; any distinction between the two must be based upon the degree of change contemplated. In Kelly v. Laing,[22] the Supreme Court of Michigan made the following comparison of the two terms: "Revision" and "amendment" have the common characteristics of working changes in the charter, and are sometimes used in exactly the same sense but there is an essential difference between them. "Revision" implies a reexamination of the whole law and a redraft without obligation to maintain the form, scheme, or structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine the whole subject and to prepare and submit a new instrument whether the desired changes from the old are few or many. Amendment implies continuance of the general plan and purpose of the law, with corrections to better accomplish its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail. Although there are some authorities which indicate that a change in a city's form of government may be accomplished by a process of "amendment," the cases which so hold seem to involve statutes which only distinguish between amendment and totally new charters.[23] However, as in Maine law, where the statute authorizing the changes distinguishes between "charter amendment" and "charter revision," it has been held that "(a) change in the form of government of a home rule city may be made only by revision of the city charter, not by its amendment."[24] In summary, it would seem that any major change in governmental form and scheme would probably be interpreted as a revision and should be achieved through the more thorough process of deliberation. Although, at first glance, petitioners proposed changes appear to cover isolated and specific provisions only, however, upon careful scrutiny, it becomes clear that the proposed changes will alter the very structure of our government and create multifarious ramifications. In other words, the proposed changes will have a domino effect or, more appropriately, ripple effect on other provisions of the Constitution. At this juncture, it must be emphasized that the power reserved to the people to effect changes in the Constitution includes the power to amend any section in such a manner that the proposed change, if approved, would be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose.[25] This is clearly not the case here. Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined doctrine of separation of powers of government, embodied in our Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a Parliamentary form of government, the Executive Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as

expressed through a vote of confidence. To my mind, this doctrine of separation of powers is so interwoven in the fabric of our Constitution, that any change affecting such doctrine must necessarily be a revision. In McFadden vs. Jordan,[26] the California Supreme Court ruled as follows: It is thus clear that that a revision of the Constitution may be accomplished only through ratification by the people of a revised constitution proposed by a convention called for that purpose x x x. Consequently, if the scope of the proposed initiative measure now before us is so broad that if such measure became law a substantial revision of our present state Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention. x x x. Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment, but is in actuality a revision, as set forth in Adams v. Gunter[27]: The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of government, which has been in existence in the United States Congress and in all of the states of the nation, except one, since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a Senate is basic in the American form of government. It would not only radically change the whole pattern of the government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry on government. Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially, with the inclusion of the following omnibus provision: C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameralParliamnetary form of government, there shall be a new Article XVIII, entitled Transitory Provisions which shall read, as follows:

Section 3. Upon the expiration of the term of the incumbent President and Vice-President, with the exceptions of Section 1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby amended x x x x x x and all other Sections of Article VII shall be retained and numbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary system of government x x x xxx .xxx xxx xxx Section 4. (1) x x x (3) Within forty-five days from ratification of these amendments, the Interim Parliament shall convene to propose amendments to, or revisions of, this

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Constitution, consistent with the principles of local autonomy, decentralization and a strong bureaucracy. The above provisions will necessarily result in a ripple effect on the other provisions of the Constitution to make them conform to the qualities of unicameral-parliamentary form of government. With one sweeping stroke, these proposed provisions automatically revise some provisions of the Constitution. In McFadden, the same practice was considered by the Court to be in the nature of substantial revision, necessitating a constitutional convention. I quote the pertinent portion of its ruling, thus: There is in the measure itself, no attempt to enumerate the various and many articles and sections of our present Constitution which would be affected, replaced or repealed. It purports only to add one new article but its framers found it necessary to include the omnibus provision (subdivision (7) of section XII) that If any section, subsection, sentence, clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection, sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the proposed intitiative measure now before us is so broad that if such measure become law a substantial revision of our present state Constitution would be be effected, then the measure may not properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention.[28] Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only affect the Articles or Sections sought to be changed. Rather, they are in the nature of revisions which will affect considerable portions of the Constitution resulting in the alteration of our form of government. The proposed changes cannot be taken in isolation since these are connected or interlocked with the other provisions of our Constitution. Accordingly, it has been held that: If the changes attempted are so sweeping that it is necessary to include the provisions interlocking them, then it is plain that the plan would constitute a recasting of the whole Constitution and this, we think, it was intended to be accomplished only by a convention under Section 2 which has not yet been disturbed.[29] I therefore conclude that since the proposed changes partake of the nature of a revision of the Constitution, then they cannot be the subject of an initiative. On this matter, Father Bernas expressed this insight: But why limit initiative and referendum to simple amendments? The answer, which one can easily glean from the rather long deliberation on initiative and referendum in the 1986 Constitutional Commission, is practicality. In other words, who is to formulate the revision or how is it to be formulated? Revision, as concretely being proposed now, is nothing less than a rebuilding of the Philippine constitutional structure. Who were involved in formulating the structure? What debates ensued? What records are there for future use in interpreting the provisions which may be found to be unclear? In a deliberative body like Congress or a Constitutional Convention, decisions are reached after much purifying debate. And while the

deliberations proceed, the public has the opportunity to get involved. It is only after the work of an authorized body has been completed that it is presented to the electorate for final judgment. Careful debate is important because the electorate tends to accept what is presented to it even sight unseen.[30] IV R.A. No. 6735 is insufficient to implement the Peoples initiative Section 2, Article XVII of the 1987 Constitution reads: 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. On its face, Section 2 is not a self-executory provision. This means that an enabling law is imperative for its implementation. Thus, Congress enacted R.A. No. 6735 in order to breathe life into this constitutional provision. However, as previously narrated, this Court struck the law in Santiago for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress neither amended it nor passed a new law to supply its deficiencies.

Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3) justifications why R.A. No. 6735 must be considered a sufficient law, thus: 1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes to the Constitution; 2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as instrument to implement the peoples initiative; and 3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative intent to use it as instrument to implement peoples initiative. I regret to say that the foregoing justifications are wanting. A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives on national and local legislation. Its references to initiatives on the Constitution are few, isolated and misplaced.

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Unlike in the initiatives on national and local legislation, where R.A. No. 6735 provides a detailed, logical, and exhaustive enumeration on their implementation,[31] however, as regards initiative on the Constitution, the law merely: (a) mentions the word Constitution in Section 2;[32] (b) defines initiative on the Constitution and includes it in the enumeration of the three systems of initiative in Section 3;[33] (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;[34] (d) reiterates the constitutional requirements as to the number of voters who should sign the petition;[35] and (e) provides the date for the effectivity of the approved proposition.[36] In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may be accomplished. This is not the enabling law contemplated by the Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc., since the promulgation of the Decision in Santiago, various bills have been introduced in both Houses of Congress providing for a complete and adequate process for peoples initiative, such as: Names, signatures and addresses of petitioners who shall be registered voters; A statement of the provision of the Constitution or any part thereof sought to be amended and the proposed amendment; The manner of initiation - in a congressional district through a petition by any individual, group, political party or coalition with members in the congressional district; The language used: the petition should be printed in English and translated in the local language; Signature stations to be provided for;

vi The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article XVII of the Constitution and R.A. No. 6735 I shall discuss the above issues together since they are interrelated and inseparable. The determination of whether petitioners are proper parties to file the petition for initiative in behalf of the alleged 6.3 million voters will require an examination of whether they have complied with the provisions of Section 2, Article XVII of the Constitution. To reiterate, Section 2, Article XVII of the Constitution 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. (Underscoring supplied) The mandate of the above constitutional provisions is definite and categorical. For a peoples initiative to prosper, the following requisites must be present: 1. It is the people themselves who must directly propose amendments to the Constitution; 2. The proposed amendments must be contained in a petition of at least twelve per centum of the total number of registered voters; and 3. The required minimum of 12% of the total number of registered voters must be represented by at least three per centum of the registered voters of every legislative district. In this case, however, the above requisites are not present. The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two registered voters. As shown in the Verification/Certification with Affidavit of Non-Forum Shopping contained in their petition, they alleged under oath that they have caused the preparation of the petition in their personal capacity as registered voters and as representatives of the supposed 6.3 million registered voters. This goes to show that the questioned petition was not initiated directly by the 6.3 million people who allegedly comprised at least 12% of the total number of registered voters, as required by Section 2. Moreover, nowhere in the petition itself could be found the signatures of the 6.3 million registered voters. Only the signatures of petitioners Lambino and Aumentado were affixed therein as representatives of those 6.3 million people. Certainly, that is not the petition for peoples initiative contemplated by the Constitution. Petitioners Lambino and Aumentado have no authority whatsoever to file the petition as

Provisions pertaining to the need and manner of posting, that is, after the signatures shall have been verified by the Commission, the verified signatures shall be posted for at least thirty days in the respective municipal and city halls where the signatures were obtained; Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to be filed with the COMELEC and decided within sixty (60) days from the filing of said protest. None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating its incompleteness and inadequacy. V Petitioners are not Proper Parties to File the Petition for Initiative

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representatives of the alleged 6.3 million registered voters. Such act of representation is constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to the Constitution shall be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters. Obviously, the phrase directly proposed by the people excludes any person acting as representative or agent of the 12% of the total number of registered voters. The Constitution has bestowed upon the people the right to directly propose amendments to the Constitution. Such right cannot be usurped by anyone under the guise of being the peoples representative. Simply put, Section 2 does not recognize acts of representation. For it is only the people (comprising the minimum of 12% 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) who are the proper parties to initiate a petition proposing amendments to the Constitution. Verily, the petition filed with the COMELEC by herein petitioners Lambino and Aumentado is not a peoples initiative. Necessarily, it must fail. Cororarilly, the plea that this Court should hear and heed the peoples voice is baseless and misleading. There is no peoples voice to be heard and heeded as this petition for initiative is not truly theirs, but only of petitioners Lambino and Aumentado and their allies. VII The issues at bar are not political questions. Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) [t]he validity of the exercise of the right of the sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters indicated their support of the Petition for initiative is a purely political question; and (2) [t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to exercise their right to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a political question. The political question doctrine was first enunciated by the US Supreme Court in Luther v. Borden.[37] Faced with the difficult question of whether the Supreme Court was the appropriate institution to define the substantive content of republicanism, the US Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that the sovereignty in every State resides in the people, as to how and whether they exercised it, was under the circumstances of the case, a political question to be settled by the political power. In other words, the responsibility of settling certain constitutional questions was left to the legislative and executive branches of the government. The Luther case arose from the so-called Dorr Rebellion in the State of Rhode Island. Due to increased migration brought about by the Industrial Revolution, the urban population of Rhode Island increased. However, under the 1663 Royal Charter which served as the State Constitution, voting rights were largely limited to residents of the rural districts.

This severe mal-apportionment of suffrage rights led to the Dorr Rebellion. Despairing of obtaining remedies for their disenfranchisement from the state government, suffrage reformers invoked their rights under the American Declaration of Independence to alter or abolish the government and to institute a new one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a new State Constitution, submitted the document for popular ratification, and held elections under it. The State government, however, refused to cede power, leading to an anomalous situation in that for a few months in 1842, there were two opposing state governments contending for legitimacy and possession of state of offices. The Rhode Island militia, under the authority of martial law, entered and searched the house of Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a militiaman. Before the US Supreme Court, Luthers counsel argued that since the States archaic Constitution prevented a fair and peaceful address of grievances through democratic processes, the people of Rhode Island had instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as an oppressive government. The US Supreme Court deemed the controversy as non-justiciable and inappropriate for judicial resolution. In Colgrove v. Green,[38] Mr. Justice Felix Frankfurter, coined the phrase political thicket to describe situations where Federal courts should not intervene in political questions which they have neither the competence nor the commission to decide. In Colgrove, the US Supreme Court, with a narrow 4-3 vote branded the apportionment of legislative districts in Illinois as a political question and that the invalidation of the districts might, in requiring statewide elections, create an evil greater than that sought to be remedied. While this Court has adopted the use of Frankfurters political thicket, nonetheless, it has sought to come up with a definition of the term political question. Thus, in Vera v. Avelino,[39] this Court ruled that properly, political questions are those questions which, under the Constitution, are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. In Taada and Macapagal v. Cuenco,[40] the Court held that the term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. In Aquino v. Enrile,[41] this Court adopted the following guidelines laid down in Baker v. Carr[42] in determining whether a question before it is political, rather than judicial in nature, to wit: 1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or 2) there is a lack of judicially discoverable and manageable standards for resolving it; or 3) there is the sheer impossibility of deciding the matter without an initial policy determination of a kind

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clearly for non-judicial discretion; or 4) there is the sheer impossibility of the Courts undertaking an independent resolution without expressing lack of respect due the coordinate branches of government; or 5) there is an unusual need for unquestioning adherence to a political decision already made; or 6) there exists the potentiality of embarrassment arising from multifarious pronouncements by various departments on one question. None of the foregoing standards is present in the issues raised before this Court. Accordingly, the issues are justiciable. What is at stake here is the legality and not the wisdom of the act complained of. Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it is not precluded from resolving them under its expanded jurisdiction conferred upon it by Section 1, Article VIII of the Constitution, following Daza v. Singson.[43] As pointed out in Marcos v. Manglapus,[44] the present Constitution limits resort to the political question doctrine and broadens the scope of judicial power which the Court, under previous charters, would have normally and ordinarily left to the political departments to decide. CONCLUSION In fine, considering the political scenario in our country today, it is my view that the so-called peoples initiative to amend our Constitution from bicameralpresidential to unicameral-parliamentary is actually not an initiative of the people, but an initiative of some of our politicians. It has not been shown by petitioners, during the oral arguments in this case, that the 6.3 million registered voters who affixed their signatures understood what they signed. In fact, petitioners admitted that the Constitutional provisions sought to be amended and the proposed amendments were not explained to all those registered voters. Indeed, there will be no means of knowing, to the point of judicial certainty, whether they really understood what petitioners and their group asked them to sign. Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.[45] The Court then ruled that This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect, although it had notice that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified by the people in accordance with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the Citizens Assemblies was and is null and void ab initio. That was during martial law when perhaps majority of the justices were scared of the dictator. Luckily at present, we are not under a martial law regime. There is, therefore, no reason why this Court should allow itself to be used as a legitimizing authority by the so-called peoples initiative for those who want to perpetuate themselves in power. At this point, I can say without fear that there is nothing wrong with our present government structure. Consequent1y, we must not change it. America has

a presidential type of government. Yet, it thrives ideally and has become a super power. It is then safe to conclude that what we should change are some of the people running the government, NOT the SYSTEM. According to petitioners, the proposed amendment would effect a more efficient, more economical and more responsive government.

Is there hope that a new breed of politicians, more qualified and capable, may be elected as members and leaders of the unicameral-parliament? Or will the present members of the Lower House continue to hold their respective positions with limitless terms? Will the new government be more responsive to the needs of the poor and the marginalized? Will it be able to provide homes for the homeless, food for the hungry, jobs for the jobless and protection for the weak? This is a defining moment in our history. The issue posed before us is crucial with transcendental significance. And history will judge us on how we resolve this issue shall we allow the revision of our Constitution, of which we are duty bound to guard and revere, on the basis of a doubtful peoples initiative? Amending the Constitution involving a change of government system or structure is a herculean task affecting the entire Filipino people and the future generations. Let us, therefore, entrust this duty to more knowledgeable people elected as members of a Constitutional Convention. Yes, the voice of the people is the voice of God. But under the circumstances in this case, the voice of God is not audible. WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299. [2] G.R. No. 127325, March 19, 1997, 270 SCRA 106. [3] Resolution dated June 10, 1997, G.R. No. 127325. [4] G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its founding members, spouses Alberto Pedrosa and Carmen Pedrosa. [5] Entitled In the Matter of Proposing Amendments to the 1987 Constitution through a Peoples Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary System. [6] Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr., Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmea III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-

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Estrada, and Jinggoy Estrada, Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel, Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Womens Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas, and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong. [7] Grounds for contempt

[10] Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA 59; Albert v. Court of First Instance of Manila (Branch VI), L-26364, May 29, 1968, 23 SCRA 948. [11] 56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch VI), id. [13] Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23, 1997. [14] 234. G.R. No. 109645, March 4, 1996, 254 SCRA

3. From the time the so-called Peoples Initiative (hereafter PI) now subject of Lambino v. Comelec, was initiated, respondents did nothing to stop what was clearly lawless, and even arguably winked at, as it were, if not condoned and allowed, the waste and misuse of its personnel, time, facilities and resources on an enterprise that had no legal basis and in fact was permanently enjoined by this Honorable Court in 1997. Seemingly mesmerized, it is time to disenthrall them. 3.1. For instance, undersigned counsel happened to be in the Senate on August 29, 2006 (on other business) when respondent Chair sought to be stopped by the body from commenting on PI out of prudential considerations, could not be restrained. On contentious issues, he volunteered that Sigaw ng Bayan would not cheat in Makati as it was the opposition territory and that the fact that out of 43,405 signatures, only 7,186 were found authentic in one Makati District, to him, showed the efficiency of Comelec personnel. He could not appreciate 1) that Sigaw had no choice but to get the constitutionalityrequired 3% in every district, [Const., Art. VII, Sec. 2] friendly or otherwise, including administration critics turfs, and 2) that falsus in 36,319 (93.30%) falsus in omnibus, in an exercise that could never be free, orderly, honest and credible, another constitutional requirement. [Nothing has been heard about probing and prosecuting the falsifiers.] 3.2. It was excessively obvious to undersigned and other observers that respondent Chairman, straining at the leash, was lawyering for Sigaw ng Bayan in the Senate! It was discomfiting that he would gloss over the seeming wholesale falsification of 96.30% of the signatures in an exercise with no credibility! Even had he been asked, he should have pled to be excused from answering as the matter could come up before the Comelec for an official collegial position (different from conceding that it is enjoined). x x x x x x x x x 4. Respondents Commissioners Borra and Romeo A. Brawner, for their part, even issued widelypublicized written directives to the field, [Annex C, as to Commissioner Brawner; that as to Commissioner Borra will follow.] while the Commission itself was trying to be careful not to be explicit in what it was abetting implicitly, in hypocritical defiance of the injunction of 1997. [8] Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No. 72424, February 13, 1989, 170 SCRA 246. [9] Supra.

[15] Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 CSRA 307, citing Moreno, Philippine Law Dictionary (1988), 3rd ed. (citing Santiago v. Valenzuela, 78 Phil. 397, [1947]). [16] Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999, 305 SCRA 303, citing Government v. Jalandoni, No. 837-R, August 30, 1947, 44 O.G. 1840. [17] Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale University Press, 1921), pp. 33-34. [18] William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice Hall Inc.,) 1973, p. 49. [19] Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 296. [20] July 9, 1986. Records of the Constitutional Commission, No. 26. [21] Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996 Ed., p. 1161. [22] 242 N. W. 891 259 Mich 212.

[23] State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55.

[24] City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134. [25] [26] [27] [28] Adams v. Gunter Fla, 238 So. 2d 824. 196 P.2d 787. Adams v. Gunter Fla. 238 So.2d 824. Mc Fadden v. Jordan, supra.

[29] Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958). [30] Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION, Philippine Daily Inquirer, September 25, 2006. [31] See Sections 8-12 for national initiative and referendum, and sections 13-19 for local initiative and referendum.

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[32] Section 2. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. [33] Section 3. Definition of terms.xxx a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution; xxx [34] See Section 3(e).

shall be limited to citizens of the Philippines or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution... This was the regalian doctrine translated into republican terms. It meant that anyone claiming ownership of any portion of the natural resources must be able to produce title granted by the Republic or the prior sovereign. Although this provision had the effect of perpetuating the doctrine of the Novisima Recopilacion, its main thrust was the nationalist objective of keeping natural resources in the hands of Filipinos. Thus the provision was no obstacle to the wave of lowland Filipinos of Luzon and the Visayas from seeking green pastures in the wide spaces of Mindanao. Through the instrumentality of the Public Land Act and the Torrens system large tracts of Mindanao lands passed to the hands of lowland Filipinos who in turn transformed them into rich productive enterprises. Meantime, too, the national government ate up some of the land for national development projects. Inevitably these movements displaced several indigenous peoples from their lands. The 1973 Constitution adopted the same regalian doctrine. But among its General Provisions was one which said: The State shall consider the customs, traditions, beliefs, and interests of national cultural communities in the formulation and implementation of State policies. It marked the entry of cultural minorities into constitutional discourse. It was a recognition of the constitutional right of tribal Filipinos to preserve their way of life. The provision gave birth to some government devices, among them the much criticized Panamin, designed to protect the welfare of indigenous communities. Significantly, President Marcos promulgated PD No. 410, the Ancestral Lands Decree, which provided a mechanism for members of cultural communities to obtain land occupancy certificates. The mechanism was meant to provide a way of resolving land problems involving tribal Filipinos. These measures, however, were not enough to protect natives from the incursions not only by government but also by large corporations. The scholarly literature on this subject is rich with details not only about eviction of indigenous peoples from their land but also about the reduction and destruction of their natural environment. The 1987 Constitution has also retained the regalian doctrine. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State.... Scattered among various articles of the Constitution, however, are provisions assuring the protection of the rights of indigenous cultural communities. They range

[35] Section 5 (b) A 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, of which every legislative district must be represented by at least three per centum (3%) of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years thereafter. xxx [36] Section 9 (b) The proposition in an initiative on the Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite. [37] [38] [39] [40] 7 How (48 US) 1 (1849). 328 US 549 (1946). 77 Phil. 192 (1946). 103 Phi. 1051 (1957).

[41] G.R. No. 35546, September 17, 1974, 50 SCRA 559. ========================== Ancestral domain vs regalian doctrine (2) By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 20:46:00 09/29/2008 Filed Under: Constitution, indigenous people, Construction & Property (Continued) Last week I concluded with the question whether ancestral domain and regalian doctrine can stand together. I believe they can. The 1935 Constitution said: All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization

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from a general statement about recognizing and promoting the rights of cultural communities, to assuring them a place in the party-list system, to applying the principles of agrarian reform when dealing with the rights of indigenous communities to their ancestral lands. But the most important of these is Article XII, Section 5 which says: The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain. This is a constitutional recognition of the rights of tribal Filipinos to their ancestral domains and ancestral lands. This guarantee eventually led to the passage of the Indigenous Peoples Rights Act whose constitutionality was upheld in a divided decision of the Court eight years ago. It is in this Act that ancestral domain and ancestral lands are defined. Senator Flavier was the principal author of this Act. The thrust of the law was well expressed in his sponsorship speech: The Indigenous Cultural Communities, including the Bangsa Moro, have long suffered from the dominance and neglect of government controlled by the majority. Massive migration of their Christian brothers to their homeland shrunk their territory and many of the tribal Filipinos were pushed to the hinterlands. Resisting the intrusion, dispossessed of their ancestral land and with the massive exploitation of their natural resources by the elite among the migrant population, they became marginalized. And the government has been an indispensable party to this insidious conspiracy against the Indigenous Cultural Communities (ICCs). It organized and supported the resettlement of people to their ancestral land, which was massive during the Commonwealth and early years of the Philippine Republic. Pursuant to the Regalian Doctrine first introduced to our system by Spain through the Royal Decree of 13 February 1894 or the Maura Law, the government passed laws to legitimize the wholesale landgrabbing and provide for easy titling or grant of lands to migrant homesteaders within the traditional areas of the ICCs. (To be continued) Tuesday, March 15, 2005 State Terrorism From: SOUNDING BOARD By: JOAQUIN G. BERNAS, SJ We should not forget that states can perpetrate more horrifying terror. Remember Samar, Dresden, Hiroshima. Our real task in the coming period is to devise a pattern of relationships which will permit us to maintain this position ofdisparity [US militaryeconomic supremacy]. . . To do so, we will have to dispense with all sentimentality and daydreaming. . . . We should cease to talk about vague and. . . unreal objectives such as human rights, the raising of the

living standards, and democratization. Theday is not far off when we are going to have to deal in straight power concepts. The less we are then hampered by idealistic slogans, the better." -- George Kennan, Director of Policy Planning, US StateDepartment, 1948. Terrorism is a favorite topic especially after 9/11 when more than 3,000 innocent lives perished in a flash in New York. It was terrorism perpetrated by nonstate agents. We should not forget that states can perpetrate more horrifying terror. The other night I watched the The Fog of War, an award-winning documentary where former US secretary of defense Robert McNamara was the main actor. It was a reminder of the horrors of World War II. Early in the documentary McNamara narrated how in 1962 the UnitedStates was within a hair-breadth away from nuclear war where one ofthe options was the complete annihilation of Cuba. Fortunately, diplomacy prevented it. But we need to recall horrors that had happened before. Remember Dresden. In February 1945, within less than 14 hours Dresden, a defenseless German city, was scorched by military bombers killing about a third of its inhabitants, possibly half-a-million innocent lives. Remember Tokyo and other Japanese cities. Thousands of people perished under rain of firebombs dropped by US bombers. This was even beforeNagasaki and Hiroshima. When Hiroshima and Nagasaki's time came150,000 died instantly and thousands more by the slow, horrible death from radiation. The US won the war. Japan surrendered. Germany, too, was defeated. Military leaders of Germany and Japan were tried for war crimes. ButRobert McNamara himself observed that, if the United States had lost the war, American leaders would have been tried for war crimes! It was happening even before World War II. In 1899 Filipinos fought American soldiers equipped with superior firepower. The death toll among Filipinos was enormous, and some provinces had horror stories to tell. Samar, for instance, had a General Smith. A historian reports the testimony of a Marine Major: "The major said that General Smith instructed [a soldier] to kill and burn, and said that the more he killed and burned the better pleased he would be; that it was no time to take prisoners, and that he was to make Samar a howling wilderness. "Major Waller asked General Smith to define the age limit for killing, and he replied 'Everything over ten." Mark Twain commented: "We have pacified some thousands of the islanders and buried them; destroyed their fields; burned their villages, and turned their widows and orphans out-of-doors; furnished heartbreak by exile to some dozens of disagreeable patriots; subjugated the remaining 10 millions by benevolent assimilation, which is the pious new name of the musket; we have acquired

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property in the 300 concubines and other slaves of our business partner, the Sultan of Sulu, and hoisted our protecting flag over that swag. " And so, by these Providences of God -- and the phrase is the government's, not mine -- we are a World Power." Is terrorism just brutal, unthinking violence? "No. Experts agree thatthere is almost always a strategy behind terrorist actions. Whether it takes the form of bombings, shootings, hijackings, or assassinations, terrorism is neither random, spontaneous, nor blind; it is a deliberate use of violence against civilians for political or religious ends." And states can be the more dangerous terrorists. ### Posted by AUPWU Manila at 8:07 AM 0 comments Links to this post ================================ Courts and the economy By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 02:37:00 04/23/2007 Filed Under: Economy, Business & Finance MANILA, Philippines - It is not unusual for dissatisfied litigants to accuse the courts, particularly the Supreme Court, of intruding into the domain of economic policymakers. True it is that there have been instances, even in the recent past, when the Supreme Court could justifiably be seen as having gone beyond the scope of its constitutional authority. But the prevailing position of the Supreme Court now is that it will steer clear of economic policy decisions except in instances when there has been a clear violation of law. The boundaries between judicial power and political power, however, are not always easily determinable. For this reason the Philippine Judicial Academy, with the assistance of the British Embassy, saw fit to organize a roundtable discussion among jurists, economists and academicians. A good portion of the discussion expectedly touched on the constitutional parameters of the subject. In his opening statement, Chief Justice Reynato Puno pointed out that the Constitution does not prescribe a religion, and neither does it prescribe an economic doctrine. These two non-prescriptions are good points with which to start a discussion. There is an important difference between the two non-prescriptions. The non-prescription of religion is total. As the non-establishment clause has been understood to mean, the state may not favor one religion, or prefer one religion over others, or even support or adopt all religions indiscriminately. There are, of course, various nuances to the nonestablishment clause but, in general, the prohibition is total. The non-prescription of any economic doctrine, however, is not a prohibition but a liberation. The state is free to adopt any economic theory. But as with all freedoms, this freedom is not total. It is subject to a combination of broad guidelines and firm rules. It is in this area that problems arise. Firm rules, such as the nationalistic 60-40 rule on the operation of public utilities or the 60-40 rule on the

acquisition of land and the exploration and development of natural resources can be applied by the courts with some degree of facility once they have been well understood. The courts do not have to grapple with cost and benefit factors. They simply have to see what the law is, verify the proportion and apply the law. They are not at liberty not to apply it. It is different, however, when it comes to the broad guidelines. The principal constitutional guidelines for the development of the economy are found in the article on the National Economy and Natural Resources. The very first article contains three general guidelines addressed to Congress and the executive. These are (1) a more equitable distribution of opportunities, income, and wealth; (2) a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and (3) an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. Added to these is the command that the State should "give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." And, of course, there is the requirement that laws must serve the general welfare. These are rules and guidelines whose implementation is the responsibility primarily of the legislative and executive departments. Laws arise out of these. And when laws begin to operate, inevitably there are "winners" and "losers." Constitutional challenges can arise either against the law itself or against the manner in which the law is being implemented by the executive department. It is then that the courts find themselves burdened with the task of deciding whether there has been a violation of the Constitution or an actionable breach of procedure. But since the constitutional guidelines are just that guidelines - and not clear-cut commands, and the implementing statute itself might give to the executive department a measure of flexibility in implementation, the courts do not have an easy handle for deciding challenges. They can only rely on the requirements of due process. But due process is a rule of reasonableness and in economic matters, even experts in the field can disagree about what is reasonable or unreasonable. There may be instances also when the Court might ask whether there has been "grave abuse of discretion amounting to lack or excess of jurisdiction" and, therefore, enough ground to invalidate legislative or executive action. But the Supreme Court itself has narrowed the meaning of this type of abuse to mean "such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility." It is for these reasons that the Supreme Court may

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choose to defer to the judgment and discretion of economic policymakers, namely Congress and the executive. The Court, after all, is also aware that all it has is "judicial power" and there can be no exercise of judicial power when there is no applicable law. But when there is and it has clearly been violated, the Court will not and should not hesitate to strike down legislative or executive action. ================================ Of amnesty and libel By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:45:00 03/26/2007 Filed Under: Politics, Government, Media MANILA, Philippines Why write about amnesty and libel? The answer is simple: they have been front-page material in the past few days. For a while some people were suggesting that Rep. Satur Ocampo might use as his defense the amnesty granted by President Corazon Aquino and later by President Fidel Ramos. But it now turns out that Representative Ocampo did not avail of the amnesty; not only that, he would not even want to avail of it. Why so? The answer lies in the hazards of amnesty as jurisprudence has explained it. Amnesty is defined as the grant of general pardon to a class of political offenders. Under the Constitution, it may be granted by the executive only with the concurrence of the legislature. It is therefore both an executive and a legislative act. However, unlike pardon which can be granted only after final conviction, amnesty may be granted either after conviction or even before the charges are filed. It may thus be seen as more generous than pardon. But there is a hitch which makes people hesitate to avail of amnesty. To avail of amnesty, one must admit guilt. The accepted doctrine prevailing today was first pronounced by Justice Pedro Tuason, who said: The writer of this decision maintained in previous decisions, contrary to the view of the majority of the Court, that it is rank inconsistency for one to justify an act, or seek forgiveness for an act, which according to him, he has not committed; that amnesty presupposes the commission of a crime and that when an accused says he has not committed a crime he cannot have any use for amnesty; that where an amnesty proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such conditions; that a petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the pleader has to confess the allegations against him before he can be allowed to set out matters which, if true, would defeat the action. This is now the prevailing doctrine. Quite obviously, Ocampo has refused to admit guilt. What about libel? First Gentleman Mike Arroyo has been firing libel suits left and right. What are the chances that he can win the cases he has filed? We must look at this in the light of what jurisprudence has in recent years accepted. The impression I have is

that it is very difficult to win libel cases, especially for public officials and public figures. Libel is usually understood as a malicious and public, defamatory imputation against a person. To win a libel case, malice must be shown. The general rule, moreover, is that every defamatory imputation is presumed to be malicious. Thus the accuser does not have to prove malice. It is the accused who must prove that there was no malice in the imputation. But over the years, a new doctrine developed: if the object of the defamatory imputation is a public officer or a public person, such person must prove actual malice if he is to win a libel suit. And actual malice is defined as defamatory imputation that is made with knowledge that it is false or with reckless disregard of whether it is false or not. Public officers have the burden of proving actual malice against their defamers. One reason given for shifting the burden to them is that they have the resources to contest the accusation against them. You would therefore think that this doctrine would apply only to relatively high ranking officers. But our Supreme Court has applied the doctrine even to a lowly barangay captain! What about public figures? Why include them in the new rule if they are private persons? The answer that has been given is this: If a matter is a subject of public interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not voluntarily choose to become involved. The publics primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participants prior anonymity or notoriety. And again: We honor the commitment to robust debate on public issues . . . by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous. But who are public figures? Does Mike Arroyo come under the category of a public figure? The court will have to decide this before it begins to look into the evidence. Jurisprudence distinguishes between the pervasive public figure and the limited public figure. The pervasive public figure is one whose name has become a household word. It is thought that such a personality has access to media to rebut defamatory attacks and has voluntarily thrust himself into the public spotlight. The limited public figure, however, is not easily identified. One view that is followed sets down two requirements. First, the defamatory imputation must involve public controversy. Thus, for instance, imputation of adultery is not a matter of public controversy unless, perhaps, it is related to public office. Second, the persons involvement in the controversy must be voluntary. In my view, Mike Arroyo will easily qualify as a pervasive public figure and will bear the burden of proving actual malice on the part of those he has accused. His lawyers will be kept busy.

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

======================================== ===== A letter to the Holy Father By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:44:00 03/19/2007 Filed Under: Churches (organisations), Politics, Government MANILA, Philippines - No, I did not communicate with the Holy Father. Rather, I have been furnished a copy of a letter asking His Holiness to educate the members of the hierarchy about their duty not to get mixed up in political matters. I will not mention the names of the purported letter-writers because I did not bother to verify the signatures. Besides, my interest is not in the authorship but in the content of the letter. The letter implicitly admits what I have always maintained, namely that there is nothing in the Constitution to prevent bishops and priests from getting involved in politics. The free exercise clause and the prohibition of religious tests for the exercise of political rights take care of that. As to separation of Church and State, the constitutional command is addressed to the State and not to the church. Thus, the writers have appealed instead to the authority of the Pope over bishops and priests. In other words, you might call it a form of "forum shopping" which lawyers are not allowed to do in secular litigation. But forum shopping is strategically appropriate in the case of the letter- writers because the letter is dated Jan. 10, 2007, or weeks after the Oct. 25, 2006 and Nov. 21, 2006 Supreme Court pronouncements junking the initiative and referendum petition for the revision of the Constitution. If you can't win it in one forum, try another one! The Ginebra team would call that the "Never Say Die!" spirit. What did the letter say? It said that the current reform drive involves a shift from presidential to parliamentary, electoral and political reforms, more autonomy leading to federalism, and economic liberalization. All these may have been contained in the report of the Preparatory Committee formed by President Macapagal-Arroyo, but even the House of Representatives simply chose to "archive" it, which is a polite way of filing it in a circular cabinet. In fact, however, the main drive has been for a shift from a presidential to a parliamentary form of government - first, through initiative and referendum (which the Supreme Court declared to be not constitutionally allowed); and second, through a unilateral act of the House of Representatives (which the House itself abandoned as absurd). The letter wanted the Holy Father to tell the bishops not to oppose a movement which the Court itself had declared illegal and which the House had abandoned in the face of opposition by the Senate. Do you really expect the Holy Father to pay attention to such a letter? If you look at the draft of the House and the draft for initiative and referendum, the only reforms included in them are the shift from presidential to parliamentary and some political reform leading to the extension of

the term of the current power holders and the strengthening of the President. To bolster the thrust of the letter, the writers quote from the recent Encyclical of Benedict XVI, "Deus est Caritas." But what they quote is supportive of the action taken by the hierarchy: "A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring openness of mind and will to the demands of the common good is something which concerns the Church deeply." There you have it. What the Catholic Bishops' Conference of the Philippines has been doing through its pronouncements and exhortations is "to bring about openness of mind and will" of all, including those of the letter-writers. The letter-writers next quote "Deus est Caritas" again as saying that "the formation of structures is not directly the duty of the Church . . . . The Church has an indirect duty . . . to contribute to the purification of reason and to the reawakening of the moral forces without which just structures are neither established nor prove effective in the long run." This is what the CBCP has been doing: performing its duty to contribute to the purification of reason and to the reawakening of the moral forces without which just structures are neither established nor prove effective in the long run. The writers also quote a passage from "The Social Doctrine of the Church" (I am not sure which document this is) which says that the "Church has no particular area of competence concerning the structures of the political community." True enough; but, aside from the fact that quite a number of churchmen have placed their own competence in the social and political fields of learning in the service of the Church, we cannot overlook the duty of the Church "to contribute to the purification of reason and to the reawakening of the moral forces without which just structures are neither established nor prove effective in the long run." "Gaudium et Spes," the pastoral letter of Vatican II on "The Role of the Church in the Modern World" puts it clearly: "Christ, to be sure, gave His Church no proper mission in the political, economic or social order. The purpose which He set before her is a religious one. But out of this religious mission itself comes a function, a light and an energy which can serve to structure and consolidate the human community according to the divine law. As a matter of fact, when circumstances of time and place produce the need, she can and indeed should initiate activities on behalf of all men, especially those designed for the needy, such as the works of mercy and similar undertakings." We are in those "circumstances of time and place" which cry for action by the Church. Do not expect Benedict XVI to revise "Gaudium et Spes" on the basis of a forum-shopping letter. ======================================== ========= A time of testing By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:25:00 02/26/2007 Filed Under: Elections, Religion & Belief

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

THREE THINGS COME TOGETHER AT THIS period of our history. We are celebrating the rebirth of democracy as we remember Edsa; we are confronted with the task of choosing the men and women who will lead the nation through the next few years; we are entering the Lenten season so dear to our people. The three have something in common: they all signify a period of testing. Ash Wednesday, which ushered in Lent, was not a holy day of obligation. But churches last Wednesday were packed. There is something appealing about the symbolism of the cross drawn on the forehead. It draws people to reflect on the meaning of life and to think of what happens after we turn to dust, especially now when we, as a people, are being put to the test. Yesterday, the first Sunday of Lent, the gospel reading was also about a period of testing. It was about the 40 days and 40 nights our Lord spent in the desert wilderness where He was put to the test by the devil. It can serve as a framework for how Christians might reflect on what is happening to us today. The desert wilderness where Jesus was put to the test was not a romantic place. It was a place replete with danger. It was inhabited by wild animals. It was the refuge of bandits and the discards of society. And it was believed to be the abode of demons. You and I, therefore, might be tempted to compare it with the political situation in the Philippines 21 years after Edsa. But that might be an exaggeration. The important point I would emphasize, however, is that the desert was a place of testing for Israel, and Israel failed the test. Jesus chose it as his place of testing, and He, unlike Israel, passed the test. Twenty-one years ago we were tested and we did not fail. Once again we are being tested. This years election can be make or break for us. How can we make sure that, like Jesus in the desert, we will pass the test? Let us look at how Jesus passed his triple test. The first thing to notice is that, according to the gospel narrative, Jesus had emerged from the river Jordan filled with the Holy Spirit. He entered the battle arena armed with the Spirit of God. What this tells us is that, if we hope to pass our test, we too should arm ourselves with the Spirit of God. The struggle we are going through is not just against human and material obstacles but also against principalities and powers stronger than our unaided selves. The first temptation Our Lord confronted was a temptation to rely on bread. Bread, of course, assuages hunger. The temptation to bread recalls the hunger of the Israelites in the wilderness and how God sent down manna. The devil tempted Jesus to perform a repeat of the same. If you are the Son of God, turn these stones into bread. It was a temptation to rely on material instruments, on wealth, on technology, a temptation we also are prone to. Our Lords answer was simple: Not by bread alone does man live but by every word that comes from the mouth of God. Wealth alone and progress and technology will not save us unless we also obey the word of God, unless we are faithful to His commandments.

The second temptation was for Jesus to worship the devil in exchange for power. All these things will I give you if you but fall down and worship. Jesus asks us today: What price will you pay to be able to win power, to win an election, to regain control of government and its resources, or to win a case in court? Are you willing to sell your soul? Election time is a period when the devil is out to buy souls. Our Lords answer to the temptation was: You shall worship the Lord, your God, and Him alone shall you serve. Is your soul for sale? Is your candidate selling his or her soul? The third temptation was an attempt to force the hand of God, a temptation to showmanship. If you are the Son of God, throw yourself down from here, for it is written: He will command His angels concerning you, to guard you, and with their hands they will support you, lest you dash your foot against a stone. Jesus said to him in reply, Scripture also says, you shall not put the Lord, your God, to the test. Three times the devil tried; three times he failed. But he has not given up. The testing continues among us. The same temptations go onto value bread more than the commandments, to worship the devil in exchange for power, to force the hand of God. The goals of a temptation may appear admirable feed the hungry, bring the world under the control of good, trust in Gods power to protect usbut we often choose to accomplish them through means that are not admirable. We begin the Lenten season by being reminded that we cannot accomplish victory on our own. We will probably be planning to do things for Lent. But Lent is not so much a time for doing things as much as a time for allowing God to transform us. And in transforming ourselves we transform the nation. As the reading last Ash Wednesday said, Even now, says the Lord, return to me with your whole heart. And as the responsorial Psalm today says: Be with me, Lord, when I am in trouble. It is only Gods power and mercy that can extricate us from the wilderness we are in. Let us allow God to play a lead role in our personal and national lives. =================================== University rankings By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 03:13:00 02/19/2007 Filed Under: Education I UNDERSTAND THAT SOME ATENEO PARENTS, and prospective Ateneo parents, were disturbed or discouraged by the announcement that the Ateneo did not sail with flying colors in the recently released THES-QS World University Rankings. The rankings, as a matter of fact, have been a hot topic among university personnel in various parts of the world, and many questions have been asked about the methodology used. In an effort to explain the rankings and to answer many questions, Ben Sowter, QS head for research, and Mandy Mok, QS regional director for Asia Pacific, met with various Philippine university officials, both jointly and separately. This is what we found.

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

The ranking of the different universities is based on four key themes: Graduate Employability, International Commitment, Teaching Quality, and Research Quality. What did we find? First, the good newsfor both students and parents. Among the Philippine universities, the Ateneo ranked highest in Graduate Employability. This was drawn from Recruiter Review based on the responses of recruiters in the QS database and media and university referrals. The other criteria are simple inputs of quantitative data that QS was able to gather either directly from the universities, from the website, or from previous years data. The highest rank in Recruiter Review means that from the point of view of the world outside, Ateneo graduates are the most sought-after in terms of employment. Not so encouraging are the results of Peer Review, worth 40 percent. But how does Peer Review work? The score for Peer Review was determined by the responses of active academics. Each academic was asked to select the 30 best universities in their subject area (Arts and Humanities, Engineering and IT, Life Sciences and Biomedicine, Natural Sciences, Social Sciences) in their chosen region (North America, Europe, Asia, etc.). There were equal weights given to the five subject areas. The Peer Review, which has the biggest weight, provides some real challenges that must be understood and overcome. One of these is the absence of Ateneo from the ranking in the Arts and Humanities, an area traditionally identified as a strong point of Ateneo. This suggests that Ateneo will have to work to be better known by colleagues abroad. However, there are also questions about the accuracy of the survey. Only about 1 percent of those surveyed returned the questionnaire, yet this accounts for 40 percent of the score. The Ateneo also ranked low in the area of studentfaculty ratio. But there is serious question about the comparability and accuracy of the data used and how they were sourced. There is more good news, however. In the area of International Faculty and International Students, the Ateneo ranked highest, thus placing the Ateneo on top in internationalization. But this comes as no surprise considering that Ateneo has been a pioneer in providing students with a global perspective through its Junior Term Abroad in 39 institutions in 11 countries (Australia, China, Japan, Singapore, South Korea, Taiwan, France, Spain, Germany, Norway, and the United States), and through its China and Europe study tours. Indeed, the rankings pose questions that need further study and introspection. One question that has already been repeatedly raised even by other top universities is how seriously these rankings should be taken, although they have been used for recruitment purposes and bragging rights. While they provide some measure of comparison, how do they relate to the mission and goals of the university? To what extent should measures be taken to improve the rankings and at what cost? Clearly, the survey hardly delves into what Ateneo

does best: the total formation of students. There is nothing in the instrument that shows how a university deliberately puts systems in place so that its students may become nurturing persons, life-long learners and heroic leaders, and that there have been positive outcomes reflected in its graduates. This formation for leadership is what makes Ateneo the highly regarded university that it has been for almost 150 years. In an earlier article of Ateneo president Fr. Bienvenido F. Nebres, S.J., he points out: Rankings in the Times survey are important because they measure how the world perceives us. But just as a person has to take what people think of them in the context of their own values and priorities, we, too, have to reflect on these perceptions and measures within our own view of our vision and mission. Thus, while we will work on strengthening our research and publications in ISI journals we need to do this in a way that does not move us away from our vision/mission and our traditional strengths: leadership formation and contribution to national development. These have to continue to be our priorities as a Jesuit university committed to the service of faith and the promotion of justice; and as a university in a Philippines whose greatest challenge is overcoming poverty and national development. P.S. To my colleagues in the law school: Law did not seem to figure in the survey at all. But secure as we are of our place in the Philippine legal firmament, I am sure there is a lot more we can do. ==================== The dismissal epidemic By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 03:03:00 02/12/2007 Filed Under: Local authorities, Government MANILA, Philippines -- The dismissals and suspensions of local elective officials seem to be reaching the level of an epidemic. And, of all things, I am being blamed by some because long, long ago the Ombudsman was my student. But those were the days before the 1987 Constitution, and Republic Act 6770 (the Ombudsman Act) and RA 7160 (the Local Government Code). Besides, it is not unusual for a disciple to surpass the master. At any rate, what seems to be the score? One cry being raised against the Ombudsman is that, according to the Constitution, the power of the Ombudsman is merely investigatory and recommendatory. Copious quotations from the Record of the 1986 Constitutional Commission are cited in defense of that proposition. Indeed, it was for this reason that the Ombudsman was referred to by the late Commissioner Soc Rodrigo as a toothless tiger. But, as I recall, it was in response to that criticism that the Constitutional Commission decided to give to the Ombudsman the power to perform such functions or duties as may be provided by law. As Commissioner Christian Monsod put it during the deliberations of the 1986 Constitutional Commission, With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

with the direction of the thinking of Commissioner Rodrigo. We do not think that at this time we should prescribe this, but we leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman would need in order that he be more effective. This is not foreclosed. Thus it was that the Ombudsman Act of 1989 expanded the powers of the Ombudsman. Sec. 21 of the Act gives to the Ombudsman disciplinary authority over elective and administrative officials, and Sec. 25 gives the Ombudsman the power to suspend or dismiss such officials. Are these constitutional? This issue has been taken up by the Supreme Court in a number of cases involving administrative officials, and the power has been upheld in those cases. As early as 1995, the Court already recognized that the powers enumerated in the Constitution are not exclusive; and that the framers of the Constitution had given Congress the leeway to prescribe, by subsequent legislation, additional powers to the Ombudsman. But is the power of the Ombudsman to remove public officials still applicable to elective officials? I believe that this has to be looked into very carefully. When Congress grants a power to an official, it does not mean that the power can never be taken away. There is no such thing as an irrepealable law. Any law may be repealed by subsequent law either expressly or impliedly. Has the power to dismiss elective officials given by the Ombudsman Act of 1989 been repealed? The powers given by the 1989 Ombudsman Act to the Ombudsman by Sec. 25 include the power to impose penalties ranging from suspension to dismissal. In 1991, however, in the implementation of the guarantee of local autonomy for local governments, Congress passed the Local Government Code. Sec. 60 enumerates grounds for disciplinary action against elective officials. The last paragraph of Sec. 60 says: An elective local official may be removed from office on grounds enumerated above by order of the proper court. What effect does this have on the older provision found in the Ombudsman Act? Can the two provisions live together? I have not found any Supreme Court case involving an attempted removal of an elective official by the Ombudsman. But in 1996, the Court already ruled that even the Office of the President is without any power to remove elective officials, since such power is exclusively vested in the proper courts as expressly provided in the last paragraph of Sec. 60 [of the Local Government Code]. Again in 2002, although obiter, the Court said: It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts . . . The law on suspension or removal of elective officials must be strictly construed and applied, and the authority on whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage.

Although obiter, it is significant because the conclusion was drawn from the Congressional Record on the debates about the Local Government Code. The important point made is that the power to remove elective officials has been made exclusively judicial. The Ombudsman does not belong to the judiciary. There is, moreover, another limitation on the power of the Ombudsman pointed out by the Court even in those cases where the Ombudsman has jurisdiction. The law says that where the penalty imposed is censure or reprimand, or suspension of not more than one month, or a fine not equivalent to onemonth salary, the decision is final and unappealable. All other penalties imposed by the Ombudsman are not final and unappealable and are not immediately executory. And execution must await decision on the appealed case. This limitation has been affirmed in at least two 2006 decisions. I trust that the Court decisions so far cited should be enough for those responsible for the epidemic to arrest its spread. ======================================== An afternoon at Holy Angel University By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 21:54:00 02/04/2007 Filed Under: Education, University MANILA, Philippines--HOW IMPORTANT are private schools to the life and progress of the nation? I am not referring to what are sometimes called "elite schools," which are generally affordable only to the relatively wealthy. I am rather referring to colleges and universities (especially in the provinces)--schools which are within the reach of the middle class or even poorer Filipinos. The incoming president of the Holy Angel University, Dr. Arlyn Sicangco-Villanueva, DBA, who was installed as the institution's eighth president, answered my question in an eloquently convincing and warm manner. But first, what was I doing in Holy Angel U? The simple but fortuitous answer is: its new president happens to be the spouse of my boss, Dean Cesar Villanueva of the Ateneo Law School and the mother of one of the coeds in my Constitutional Law class. Hence, I merited an invitation. But I also discovered another link with Holy Angel U. I found out that the co-founders of the university were Don Juan Nepomuceno, patriarch of the Nepomucenos who are an Ateneo family; and Fr. Pedro Santos, who later became Bishop Pedro Santos and co-founder and important benefactor of the Ateneo de Naga where I finished high school. I was told that the facades of Ateneo de Naga and Holy Angel U are similar due to the fact that Bishop Santos engaged the same architect for both. (The bishop was residing next door to the Ateneo de Naga when I was in high school. We used to throw stones at the bishop's dogs which roamed the Ateneo campus. But an elderly Jesuit did us better. After downing one of the bishop's dogs with a hunting rifle, he said, "Sorry, I did not see the episcopal red cap on

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

the dog's head." So much about episcopal dogs.) The bishop had the foresight to see the need for quality but affordable schools, a need now emphasized in the current Constitution. Holy Angel U grew out of that foresight. It was started as "an academy envisioned to offer quality but affordable Catholic education to boys and girls of what was then the municipality of Angeles." Seventy-five years later, the new president could say in her inaugural speech that the seed planted years before had "grown into a giant tree, with a student population of 15,000 and a strong work force of 800, the biggest school in the region and the biggest employer in the city." Number and size, of course, are not everything. What is more important is meaning. What has the school meant for Angeles City and its environs? We answer this question in the context of a nation which, unlike our Asian neighbors, does not financially support private schools; and not only that, it even taxes them and imposes restrictions on their capacity for growth. Holy Angel U, like other similarly situated schools, has to rely only on the tuition and fees that students can afford to pay and on the generosity of benefactors who appreciate the importance of the mission of schools. And as the new president put it, "In all those years [that I studied in and served the school], I shared in the lives of countless young men and women, mostly Kapampangans, who sought the Filipino dream, not of fabulous fortune or fame, but rather of a decent life, with a good job and a wonderful family, with time to worship God and enjoy with relatives and friends, the blessings bestowed, the small crises allowed, and the few surprises given during this brief moment we call 'life on earth.'" And what has Holy Angel U achieved? President Villanueva summed it up neatly: "The Holy Angel diploma is a respected credential, whether it be among the manufacturing and production companies for its engineers, in the top auditing firms for its accountants, banking institutions for its finance and management graduates, educational institutions for its teachers, hotel and service industries for its HRM graduates, IT companies for its computer technology, and soon in hospitals for its nursing graduates. But more importantly, the Holy Angel diploma is displayed proudly by owners and proprietors of many small and medium businesses, of entrepreneurs whose daily toils contribute to the prosperity of our country, for Holy Angel has always been a school that offers good education to the poor and emerging middle class." Holy Angel, like many in the area, suffered from the Pinatubo eruption. But it rebounded with energy and enthusiasm and has since won autonomous status from the government, Level 3 accreditation from Paascu for almost all its programs, and recognition as a Center of Excellence. Holy Angel U takes particular pride in its Kapampangan Center, whose mission is to preserve and enhance the Kapampangan culture. It is common knowledge that the nation is undergoing a severe crisis in education. Rescue efforts are being made both by the government and by the private sector. In the midst of all this, it is good to know that there are schools like Holy Angel throughout the country, striving in the face of adversity to deliver quality but affordable education to Filipinos whom

public education has not served. We wish Dr. Arlyn Sicangco-Villanueva, and other private school presidents similarly situated, all success in their efforts to provide oases of learning for millions of Filipinos. ================================ Watching Saddam die By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:50:00 01/29/2007 Filed Under: Laws, Belief (Faith), Punishment MANILA, Philippines--The execution of Saddam Hussein should bring us to reflect anew on the place of death penalty in our legal system. President Macapagal-Arroyo has vowed that, during her watch, no one will be executed. But the death penalty law is still in our books. As Judge Munir Haddad told BBC, the execution of Saddam was not a pretty sight. The man was defiant to the end, but those around behaved like beasts themselves. Video shots, stolen with a cell phone camera, recorded an angry exchange between onlookers hurling insults at the prisoner and the prisoner himself turning around to mock his tormentors. The event took place in a compound known to Americans as Camp Justice, in the Baghdad suburb of Khadimiya where Saddam himself had authorized the execution of many dissidents. The man was in a white shirt and black suit and overcoat, and he was surrounded by men in black ski masks. He had a Koran in his hands. This is how Judge Haddad described what happened after the sentence was read: One of the guards present asked Saddam Hussein whether he was afraid of dying. Saddams reply was that I spent my whole life fighting the infidels and the intruders, and another guard asked him: Why did you destroy Iraq and destroy us? You starved us and you allowed the Americans to occupy us. His reply was, I destroyed the invaders and the Persians, and I destroyed the enemies of Iraq ... and I turned Iraq from poverty into wealth. He said: This is my end ... this is the end of my life. But I started my life as a fighter and as a political militantso death does not frighten me. After his handcuffs were removed, he was brought to the top of the gallows, his hands tied behind his back and his feet shackled. According to Judge Haddad his last words were: God is great! Down with the Americans! Down with the invaders! Were going to heaven and our enemies will rot in hell! The trap door swallowed him before he could finish his last sentence: There is no God but Allah, and I testify that Mohammad is the messenger of God. There is no God but Allah and I testify that Mohammad ... Judge Haddad concluded: He was killed instantly and I witnessed the impact of the rope, and it was a horrible sight. Of course, we try to humanize executions. Death by

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

lethal injection is supposed to be a painless transition to the afterlife. But the heinousness of it is not just in the manner of carrying out the sentence but in the very assault on the human dignity of the person. In the coming months, our legislators will almost certainly be faced with the challenge of reviewing our law on the subject and with the question of whether the death penalty should be totally removed from our books. Those of them who favor the abolition of the death penalty will be looking for arguments. Of course, there are secular reasons for rejecting the death penalty. But I hope that legislators who oppose the death penalty will not be embarrassed to borrow arguments from the teaching of the Christian faith on the value of human life. Even the secular reasons are ultimately rooted in our religious belief, in the inalienable dignity of the human person. Valuable guidance can be found in the moral teachings of the Church on the subject. The Catechism of the Catholic Church teaches that the only time Church teaching permits the use of the death penalty is when the execution of the offender is an absolute necessity, because it is the only possible way of defending human lives against the unjust aggressor. The teaching goes on to add that such situations are practically nonexistent. I cannot think of a possible situation which would make the death penalty the only recourse against aggressors in the Philippines. Was the execution of Saddam perhaps an example of a situation where the death penalty was an absolute necessity as the only way of defending human lives against unjust aggressors? It might be argued that in the situation of Iraq, it was perfectly possible for a group of insurgents to free Saddam and then restore him to power, especially after a withdrawal of US forces from the country. This possibility, however, has not prevented world leaders, including the Catholic Church, from judging that the execution was a tragic cause for sadness. It is clear that the execution of Saddam has not put an end to the ongoing violence and killings in Iraq. The aftermath of the execution, together with other events in Iraq, has forced the authorities behind the occupying forces to look for alternative ways of solving the Iraq problem. There is a growing recognition that the continuing disorder in Iraq is the product largely of the manner in which the belligerent occupation is being conducted. Among the issues now being looked into are those that touch on the teaching of the 1907 Hague Regulations and of the 1949 Geneva Convention, and the apparent departures from these by the belligerent occupants. It is hard to see the execution of Saddam as the path to peace. Nor will executions solve our criminal problems here. As Vatican put it: The killing of the guilty is not the way to rebuild justice and reconcile society, rather there is a risk of nourishing the spirit of revenge and inciting fresh violence. -------------------------------Davides ad interim appointment By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:06:00 01/22/2007

Filed Under: Politics THERE REALLY IS NOTHING UNUSUAL ABOUT ad interim appointments. And there should be nothing unusual about the ad interim appointment of former Chief Justice Hilario Davide as ambassador to the United Nations. But, I guess, what is significant is that Davide presided at the impeachment trial of President Joseph Estrada and administered the oath of office on Gloria Macapagal-Arroyo as successor to President Estrada. These facts make him memorable in the mind of Estradas son who is a member of the Commission on Appointments. But let us just look at the legalities of the matter. First, what are ad interim appointments? There are certain important government offices, an appointment to which normally needs confirmation by the Commission on Appointments. But the Commission on Appointments operates only when Congress is in session. The Constitution therefore has provided for situations when vacancies must be filled while Congress is in recess. When the Constitutional Commission of 1986 was deliberating on the appointment power of the President, the original proposal on the subject did not contain a provision for appointments during congressional recess. But when it was remembered that the 1935 Constitution had such provision, an addition was introduced. It now reads: The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. This is the power which the President exercised when she appointed and swore in former Chief Justice Davide as ambassador to the United Nations. What is the nature of such an appointment? Jurisprudence is now very clear on the subject. In terms of legitimacy, it is as good as an appointment confirmed by the Commission on Appointments. As the Supreme Court put it in a 1948 decision: An ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the [1935] Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The current Supreme Court confirmed this in 2002 saying: The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. I understand that the appointment of Davide will be challenged or has now been challenged in the United Nations itself. I believe that such a challenge is an exercise in futility and can only embarrass the challenger. I do not anticipate that anything will come

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

out of that challenge. International authorities accept the legality of decisions of de jure local authorities within their jurisdiction under what is known in law as the act of state doctrine. There are only two ways in which an ad interim appointment may be terminated. First, it is terminated when Congress bypasses it, that is, when Congress adjourns without any action on the subject by the Commission on Appointments. But then, if so bypassed, the President can renew the ad interim appointment. There is no constitutional limit on the number of renewals. Second, it is terminated when disapproved by the commission. Disapproval is the definitive signal that the appointment should end and not be renewed. What are the chances of a disapproval of Davides appointment? It seems to me that, the fact that the appointment has been sitting there without unfavorable action may be an indication that the majority of the commission does not intend to disapprove it. But why is it not being approved? What does it take to approve it? In the answer to this question, we see how politicians behave. The law on the subject is that the commission, by constitutional command, acts by a majority vote. This means that a majority vote of Yes or a majority vote of No should end the suspense. The Senate president presides over a body of 12 senators and 12 representatives. If the body does not vote to disapprove and neither votes to approve, it can only mean that the body wants to approve but does not wish to displease a commission member or some other influential person. So no action is taken and meanwhile the officer stays in office. Would you call that a win-win situation? Alas, the beauty of politics! --------------------------------------Court packing By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 02:40:00 01/15/2007 Filed Under: Judiciary (system of justice) THERE is now one vacancy in the Supreme Court resulting from the appointment of Justice Reynato Puno as Chief Justice. There will be another vacancy in May upon the retirement of another justice. Once the President has filled these vacancies, the Court, in terms of numbers, will be dominated by President Gloria Macapagal-Arroyos appointees. I emphasize in terms of numbers because dominance in numbers does not necessarily mean dominance over thought. Being appointed should not necessarily mean being enslaved. I recall the case of the late Justice Cecilia Muoz Palma. At the time when she was being considered for appointment to the Supreme Court -- she was then in the Court of Appeals -- she visited me in my office, which was then in the Ateneo Law School along Padre Faura Street in Manila, and she told me that one qualifying question she was being asked was whether she was loyal. Well, she gave a proper answer and she was appointed. But she never surrendered her independence. Her Supreme Court opinions attest to that.

I have never attended a hearing conducted by the Judicial and Bar Council (JBC) where prospective appointees to the judiciary are interviewed. Nor do I know how sharp and probing are the questions the JBC members ask. But the issue of personal or partisan loyalty, which is distinct from ideological position, is something that is very much a valid area for inquiry. The Court must be insulated from dominance by extraneous forces. And it is the solemn duty of the JBC to do everything needed to make sure that the Supreme Court, as its title signifies, remain supreme. It might be good to recall a moment in the history of the Federal Supreme Court of the United States when it was threatened by executive dominance. President Roosevelts quarrel with the Supreme Court, however, was not about partisan politics but about social philosophy. Roosevelts animosity toward the Supreme Court arose early during his first term, when his New Deal of social and economic reform could not pass muster before a Supreme Court dominated by conservative old men. Six justices were then aged 70 or over and the youngest was 61. Under the US Constitution there was, even as now, no retirement age. To neutralize the power of the old men, Roosevelt drafted a bill to reorganize the judiciary. The bill called for all justices over 70 to retire and, should they fail to do so, the President would be authorized to appoint another justice to sit in tandem with each justice older than 70. For the Supreme Court, it would have meant that the President could appoint six new justices. The proposal was doomed from the beginning. It was opposed by both political foes and friends, and by conservatives and liberals alike. The draft bill died. Biographers of Roosevelt agree that his court packing scheme robbed him of much of the political capital he had won in landslide election victories. It also weakened his war against poverty. But eventually the Courts social philosophy underwent change. In the end, too, the final winner was the American people. With the emphatic rejection of the court packing scheme, no similar plan has ever been presented again. Roosevelt sought to achieve his court packing scheme through Congress. I have never heard of anything like it being presented to the Philippine Congress. But there was a time when the President could pack the Supreme Court at will. Under the 1973 Constitution, the President alone decided who should go to the Supreme Court. So, too, under the Revolutionary Government which took over after the ouster of President Ferdinand Marcos. President Corazon Aquino could appoint whomsoever she pleased. When the time came for the drafting of a new Constitution in 1986, there was debate about whether appointments to the judiciary should go through the Commission on Appointments as under the 1935 Constitution. It was the revered former Chief Justice Roberto Concepcion who proposed the alternative that we now have. Appointments to the judiciary can only be made from a list of at least three nominees presented to the President by a Judicial and Bar Council.

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Now it is being asked how effective the JBC is or can be in assuring the nation that the recommendees for appointment are the councils independent choices and not those of the President. Consider the composition of the JBC. It is chaired ex officio by the Chief Justice. Other ex officio members are the justice secretary and a representative of Congress. Four other members are appointed by the President with confirmation by the Commission on Appointments: a representative of the Integrated Bar of the Philippines, a law professor, a retired Supreme Court justice and a representative of the private sector. Significantly, the council operates under the supervision of the Supreme Court. It is said that the proof of the pudding is in the eating. How would you rate how the appointing process has performed so far? How will it continue to perform? -----------------------------------------The Smith case, once more By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:09:00 01/08/2007 Filed Under: Government, Judiciary (system of justice) YES, WE MUST HONOR THE TREATIES WE have entered into. Pacta sunt servanda states a fundamental obligation of any civilized nation. Frankly, however, I do not understand how our government reads the treaty. But it must also be admitted that the matter is complicated by the fact that the Smith case is not an ordinary criminal case; it is one which also involves foreign relations. And foreign relations are primarily under the direction of the President. Hence there is a need to make the delicate and difficult balance between law and order on the one hand, and foreign relations on the other. What the government and the Court of Appeals did was to attempt to strike a balance but with results that are far from felicitous. Let us begin with the complications arising from the treaty itself. A key provision says: In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. Our government has taken the position that the judicial proceedings referred to by this provision did not end with the conviction of Smith but carries into the period of appeal. Hence, the proceedings are not yet over. But what do you make of the sentence that immediately follows, which says: The one-year period will not include the time necessary to appeal. What is the consequence of our governments position? Again we must look to the text of the treaty. It says: . . . the United States shall be relieved of any obligation under this paragraph . . . And what, pray, is the obligation of which the United States has been relieved? Again we go to the text: to make such personnel available to [Philippine] authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In simple terms, since our government has agreed

that judicial proceedings were not terminated within one year, our government in effect agrees that the United States no longer has any obligation to produce Smith. It so happened, however, that Smith was in the custody of Philippine authorities. Should the government allow the bird in hand to fly back to the bush? That the government did, and dramatically. In a supreme act of generosity, our government spirited Smith out of the Makati City Jail and surrendered him to the US Embassy. In other words, the government is equivalently saying to the United States, He is your baby; you have no obligation to give him back to us. You can send him to Okinawa for all we care. As Alice in Wonderland would put it, things have gotten curioser and curioser. Our government made it conveniently easy for the United States. The American government did not have to resort to what it did in the Alvarez-Machain extradition case. In that case, Mexico refused to extradite Dr. Alvarez-Machain to the United States; but the latter managed to have the person kidnapped and brought to the United States where he was arrested. In our case, Smith did not have to be kidnapped! He was surrendered on a silver platter. Other curious things have been happening about this case. Recall that the Presidents legal adviser said that she had nothing to do with the transfer of Smith. The good adviser seems to have forgotten a basic principle which every first year law student has to recite, namely that the acts of department heads in the ordinary performance of their functions are presumed to be the acts of the President unless she expressly reprobates them. The advisers announcement makes one wonder who really is running the Philippine show. But the President eventually came out to contradict her adviser and say that the transfer was her call after all. Still we must ask: Who is really calling the shots? Comes now the Court of Appeals. Its decision is being described as Solomonic. The Court ruled that Judge Benjamin Pozon ordered correctly that Smith be confined temporarily in the Makati jail. But Pozon himself had said that he would honor whatever agreement the Philippine government and the United States might reach on the place of Smiths confinement as provided for in the Visiting Forces Agreement. But the Court of Appeals did Pozon one better: the Court found nothing wrong in the fact that the government spirited Smith away in the dead of night without waiting for the decision of the Court of Appeals which had been sought by the government itself. The Court did not seem to care that the executive department had thumbed its nose at the judiciary. Note that earlier Malacaang had said that the government would wait for the Courts decision. Again, one might ask: Who is really calling the shots? Comes now the executive director of the Presidential Commission on the RP-US Visiting Forces Agreement (VFACom). He accuses the government, not implausibly, of taking the law into its own hands. In reaction, the government not only threatens to fire him but also to disband the VFACom. It is the Charles Lamb principle at work: Burn the house to roast a pig!

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The whole affair would be funny if it were not painful for the people concerned. Holmes did say that hard cases make bad laws. But it would not have been a hard case if the treaty had been in less sloppy shape. The root of the comedic affair is the ambiguities in the treaty itself. The Executive Homer nodded in negotiating the treaty and the Senate Homer likewise nodded in ratifying it and the government just decided to muscle its way through. Marvelous! Meanwhile, the Court of Appeals simply pleaded that the judiciary, without money or guns, is the least dangerous branch. =========================== Constitutional Convention in 2007? By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 03:32:00 01/01/2007 Filed Under: Politics, Constitution Published on page A13 of the January 1, 2007 issue of the Philippine Daily Inquirer. THE MOVEMENT TOWARD CHARTER CHANGE refuses to die. But what Charter change needs is not speed but careful deliberation in an atmosphere of mutual respect. If we have to face it, the crucial questions to ask are: What changes must be made? How do we achieve the changes? And when should they be made? All three questions are intimately linked with each other. Changes can be achieved through initiative and referendum, or through Congress as a constituent assembly, or through a constitutional convention. Initiative and referendum is very limited in its usefulness. It can be used only for simple changes of individual provisions which do not affect other provisions. Theoretically, Congress as a constituent assembly or a constitutional convention has the authority to formulate and propose minor and major changes. But there are important differences between the two which must be considered when deciding which method to choose. In terms of cost, a constituent assembly is less expensive than a constitutional convention. Supporting a constitutional convention would be equivalent to supporting a second and, perhaps, larger legislative body. However, Congress, aside from not having been elected for the purpose of revising the Constitution, consists of people who currently hold political power and might be less inclined to make changes that can diminish their power. A constitutional convention, on the other hand, consists of members chosen by the sovereign people precisely for the purpose of reviewing an existing constitution. The constitutional convention law which will prescribe the manner of electing or appointing the delegates and the qualifications needed for membership can set parameters which can assure, to the extent humanly possible, that the delegates will act with independence and unselfish concern for the welfare of the nation. Indeed, delegates might already harbor in their hearts the ambition to hold office under a new constitution, but their relation to public office is more remote than what the present members of Congress already have.

Considering these differences between Congress as a constituent assembly and a constitutional convention, I would suggest that if the intent is a radical change in the constitutional structure, such as a shift to a unicameral parliamentary form of government, the task of evaluating or formulating such a change should be entrusted to a study by a constitutional convention. Minor changes, and even important changes, but which do not involve a radical change in the structure of government, can be sought through Congress as a constituent assembly. But these latter kind of changes do not have to be done in one fell swoop. They can be attended to gradually over the years. Concretely, what are the changes being bruited about these days? The most radical of them is the shift to a unicameral parliamentary form of government. It is being said that separation of powers and checks and balances under a presidential system have become outmoded. But the fact that the Senate has stood up to the blandishments of the executive is proof that separation of powers and checks and balances are alive. So has the fact that the Supreme Court has held its ground against the political departments. It is also being said that separation of powers results in unwanted gridlocks. But separation of powers was never meant to be principally an instrument for efficiency; it has mainly been meant for the prevention of tyranny. That function is still being performed, to the dismay of those who want more power. As for efficiency, the principal instrument for governmental efficiency is the administrative process. Most of the serious problems we have now can be alleviated or solved by wise and well-implemented administrative process. Is a parliamentary system really the solution? The best proof so far that it is not is the way the current House of Representatives, the principal advocate of a parliamentary system, has shamelessly behaved. We are not politically prepared for a parliamentary system that clearly exhibits authoritarian tendencies. Is there really an urgent need to review the nationalistic economic policies of the Constitution? If there is, this is something that can be done more economically by Congress as a constituent assembly. But even now we have learned to deal with them by ordinary legislation. Moreover, there is so much that the administrative process can do for the economy even without altering the Constitution. The bigger obstacle it seems is not the Constitution but the bureaucracy. But the bureaucracy and the red tape it weaves are largely a problem for the administrative process. Are the Cha-cha advocates saying that constitutional reform will solve the corruption problem? But corruption is preeminently an administrative problem. It is not solved by changing constitutional rules but by implementing laws in a more vigorous exercise of political will. We will not find solutions in constitutional reform if we do not have the political will to implement administrative and criminal lawsor, even just the simple traffic laws. Should we then embark on a constitutional convention? We must face the reality that a large segment of the

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population, rightly or wrongly, has been conditioned to expect constitutional reform soon. This cannot be ignored. It can, however, be dealt with through the constitutional provision which authorizes Congress to present the question to the people themselves in a plebiscite for the purpose. The Constitution says: The Congress may ... by a majority vote, submit to the electorate the question of calling such a [constitutional] convention. This can coincide with the May 2007 elections. =============================== An invitation to involvement By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 22:18:00 12/24/2006 Filed Under: People, Politics, Customs & Traditions Published on page A13 of the December 25, 2006 issue of the Philippine Daily Inquirer His future coming was proclaimed by all the prophets. The virgin mother bore Him in her womb with love beyond all telling. John the Baptist was His herald and made Him known when at last He came. In His love, Christ has filled us with joy as we prepare to celebrate His birth, so that when He comes He may find us watching in prayer, our hearts filled with wonder and praise. From the Advent Preface BUT CHRISTMAS COMES TO US THIS YEAR colored with messages of darkness. Where are the hearts filled with wonder and praise? Open the daily papers or watch television news, and you grow more and more aware of threatening darkness. Bad news has become daily fare. Reports of almost daily assassinations carry dire foreboding of a bloody election year. Famine and destruction abound. We feel the suffering in Palestine, Africa, Sri Lanka and Iraq. Like the Apostles in the time of Jesus, we might want to see at Christmas not a helpless infant but a conquering hero ready to rule, to smite, to heal and to triumph over injustice and violence or even just to miraculously transform hardened hearts. But such a conquering hero did not come even with the first Christmas. The movie The Nativity Story is now showing in local theaters. It tells the story of a first Christmas surrounded by darkness. Jesus came among a people suffering under Roman occupation. He came among a people ruled by an insecure Herod fearful of prophecies that could strip him of power. The reality then was not the sentimental and idyllic scenes portrayed in Christmas cards. The reality was of a ruler hungry for power, sending his minions to hunt out the baby that might replace him; and Joseph and Mary in flight to live a life of homeless refugees. And the life of the child ended in crucifixion. The life story of the Savior born in Christmas Day tells us that He did not come to be a conquering hero. What then? As the writer Sally Cunneen puts it, Still, incredible as it may seem, the appearance of Gods son as a vulnerable human baby bringing light to out darkness suggests that the Creator wants human help in the ongoing work of creation. Just as Yahweh asked Moses to lead his people out of Egypt, and

Mary to cooperate in the birth of his Son, we are being asked today to accept this shared responsibility. In this call for shared responsibility, He leads the way. For that reason, He was born in history. Luke is careful to situate his arrival in a concrete historical moment of uncertainty. In those days a decree went out from Caesar Augustus that the whole world should be enrolled. This was the first enrollment, when Quirinius was governor of Syria. So all went to be enrolled, each to his own town. And Joseph too went up from Galilee from the town of Nazareth to Judea, to the city of David that is called Bethlehem, because he was of the house and family of David, to be enrolled with Mary, his betrothed, who was with child. While they were there, the time came for her to have her child, and she gave birth to her firstborn son. She wrapped him in swaddling clothes and laid him in a manger, because there was no room for them in the inn. The call to us to be involved in the ongoing work of creation comes at a concrete moment in our history during the presidency of Gloria Macapagal-Arroyo, during the Senate presidency of Manny Villar and the Speakership of Jose de Venecia, as a new chief justice begins his term, as war rages in Mindanao and terrorism threatens the nationand also at a time when the wealthy are enjoying more wealth and the poor are becoming poorer. We usually look at Christmas as vacation season, a season of disengagement. But when we look at the first Christmas, we see it telling us not to disengage but to engage. Christ thrust Himself into the history of Roman occupation, into a world of hunger and sickness, into a world of hatred and violence, into a world of injustice and poverty. He was not an escapist. And the Word was made flesh, and dwelt among us. Christmas is not a season of escape; it is a season to begin or renew engagement. It is an invitation from God who became human to look at our human condition through the lens of God, and to be involved in it. We are invited to look with new eyes at people we tend to ignore: the street children begging at street intersections, the beggars huddled under overpasses ignored by speeding motorists, the scavengers in garbage dumps and the obscure victims of injustice and oppression. These are people we tend to remember only in time of calamities. The Word was made flesh and dwelt among us, John tells in his prologue during Christmas Day Mass. What is the God-message through the Word spoken to us? It is this: Receive Him; be with Him. But more than that: imitate Him and be involved. =============================== ]The Lance Corporal Smith case

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By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 02:58:00 12/18/2006 Filed Under: Judiciary (system of justice), Diplomacy Published on page A15 of the December 18, 2006 issue of the Philippine Daily Inquirer LANCE CPL. DANIEL SMITH, CONVICTED OF rape by Judge Benjamin Pozon, is being pulled in opposite directions. The US Embassy, for which our secretary of justice is now lawyering, wants him in the custody of the US government. Their argument is this: Since the case is still on appeal, the judicial proceedings have not yet been terminated, and by the terms of the Visiting Forces Agreement, he should be under US custody. Judge Pozon, for his part, holds that the judicial proceedings referred to by the VFA ended with the judgment of conviction, after which the place of detention should be a matter for agreement between the US and RP governments. Ambassador Kristie Kenney, it seems, agrees; she signed an agreement to that effect. Judge Pozon, however, contends that Justice Secretary Raul Gonzalez was the wrong person to enter into such an agreement. Who is right? Let me share with you my two bits on the matter. It is always good to begin with the text of the law itself which, in this case, is the treaty. Incidentally, I disagree with those who say that the VFA is not a treaty because it was not concurred in by the US Senate. Our Constitution only requires that, for purposes of foreign military presence in the Philippines, the agreement must be recognized as a treaty by the other contracting party. The US government recognizes the VFA as a treaty. It is not for the Philippines to say what the American authorities should recognize as a treaty. The answer to the controversy, therefore, must be sought in Sec. 6 and Sec. 10 of Article V of the VFA. Sec. 6 says: United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged. In extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the oneyear period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so. Under this section, initial custody must belong to the United States, unless in extraordinary circumstances, the Philippines should ask for custody. The Philippines did not ask for custody

during trial; hence Smith stayed in the US Embassy. But when does US custody last? Sec. 6 also says that if the Philippine judicial proceedings are not completed within one year the United States shall be relieved of the responsibility to make the accused available for investigative or judicial proceedings. The contention of the US government is that judicial proceedings include the period of appeal and, since the case is on appeal, the proceedings are not yet terminated. Therefore, Smith should still be enjoying the comforts of the US Embassy. Moreover, if the appeal is not terminated within the prescribed oneyear period, the United States is relieved of the obligation to produce Smith. Note that the one-year period endedif I am not mistakenyesterday, Dec. 17. If Smith is returned to US custody, will the United States be free to ship Smith to Okinawa? Is this what the Filipinos who negotiated the treaty and the Senate, which concurred in the treaty, meant? But Sec. 6 itself says that the one-year period shall not include the time necessary to appeal; neither will it include delay in trial procedures attributable to the United States. When you put together all the above specifications, the implication is that the one-year period, after which the Philippines loses the right to hold custody of the accused, applies only during the trial period. I am sure that those who negotiated the treaty knew that while trials can be speeded up, appeals can take forever. The appeal is now with the Court of Appeals and may eventually go to the Supreme Court. It is for this reason that Judge Pozon holds that the applicability of Sec. 6 ended with the conviction and sentencing and that the applicable provision now is Sec. 10. And what does Section 10 say? The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. There are two sentences here. The first sentence is about the agreed place of detention. The second sentence tells us what this detention is, that is, detention while serving sentence. Smith has started serving sentence. Hence, the Philippines and the United States have to agree where he should be detained. Judge Pozon agrees that the place of detention should be a subject of agreement. But he questions the authority of the secretary of justice to enter into this agreement which partakes of the nature of an executive agreement. The judge must be thinking of the list of those who, under the Vienna Convention on Treaties, have the power to represent a State in agreements. Article 7 of the Vienna Convention on Treaties does not include the secretary of justice among those who have ex officio authority to enter into agreements. This is crucial because a waiver of custody can mean a waiver of sovereignty. -------------------------Saving face, eggs on face By Fr. Joaquin G. Bernas, S.J.

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Inquirer First Posted 02:22:00 12/11/2006 Filed Under: Constitution, Government Published on page A15 of the December 11, 2006 issue of the Philippine Daily Inquirer IT COULD ONLY BE THAT JOSE DE VENECIA and his army saw the futility of their cause both legally and politically. The House Con-ass resolution was dead in the water. A face-saving devise had to be sought. He thought an ultimatum to the Senate would do. He got eggs instead. But why was their cause hopeless in this liturgical Season of Hope? Simple. Let us look at the matter soberly. Never mind that there may have been hysterical reaction all around. Begin with what the House of Representatives did in the dead of night. The House amended its own rules dispensing with the requirement that proposals for constitutional amendment should go through the wringer of three readings. It was a rejection of rationality. Three readings, as denizens of Congress know, means that a proposals title is read on first reading and assigned to a committee for study. The committee report is next discussed on second reading where every provision is debated upon and voted on. On third reading a clean copy of everything that has been approved on second reading is presented for final approval. No more debates take place on third reading. That is how rational beings behave. What the House approved was to short-circuit everything into one reading. Committee study would be dispensed with and instead plenary debate would take place immediately on ready-made proposals. Definitely this would shorten the process and facilitate railroading. I agree that the House can amend its own rules. The Supreme Court does it with its rules. The Judicial and Bar Council does it. In every case the issue is not so much legality as propriety or fairness or even morality. But it is important to note that, whether legal, improper, or immoral, what are amended are just the rules of the House, nothing more. Hence, because only the internal operation of the House is involved, the House may legallyeven if immorally dispense with the requirement of three readings. This, after all, is a rule made by the House itself for the constituent process, even if three readings are required by the Constitution for the legislative process. What became obvious, however, was that, by amending its internal rules, the House planned to dispense with the participation of the Senate. That, to my mind, would have been an unwarranted long jump fit for a spot in Doha. Dispensing with the participation of the Senate would involve a change not just of the House rules but also of the constitutional provision on Charter change. The Constitution gives the authority to propose amendments to Congress. Congress has two houses. Both must take part in the process. I am sure

that the bright lawyers of the House knew this. But they did it just the same with full knowledge and consent. In my book, that would be mortal sin. But they did not seem to care because they expected absolution from the almighty Palace and were hoping for one from the Supreme Court. Will a mere invitation from the House addressed to individual senators make the exercise a joint enterprise of House and Senate? Again I am sure that the bright lights in the House knew in their sober moments that it will not. What is needed is a resolution of the majority of the Senate indicating the desire to participate. The claim that refusal to participate would mean a waiver of Senate prerogative is hogwash. And I am sure the bright lights of the House knew this. Let us suppose, however, that the Senate resolves to participate. Must the two houses be in joint session? I have always maintained that there is nothing in the Constitution which commands them to be in joint session or prohibits them from being in joint session. They can be in one place in joint session or they can do their thing where they are as they are. But joint session or not, what the Constitution commands is at least joint action. Both must agree to participate in a constituent process. Without one or the other, there is no constituent assembly; just as without one or the other, there is no Congress. The issue of whether there should be joint or separate voting is distinct from the issue of whether there should be joint action or not. It is only after both chambers have decided to act as a constituent assembly that they can debate about whether they should vote jointly or separately. What I seem to be hearing is that the House wants to dispense with the participation of the Senate and effectively also exclude them from the vote. Its a double-barreled shotgun! Are the bright lights serious or speaking tongue-in-cheek? What is my take on the issue of joint or separate voting? I have expressed my view on this in earlier columns. My view is that separate voting is of the essence to a bicameral Congress. The structure of Congress demands it. Separate voting therefore is the rule. This can be dispensed with only if there is a specific constitutional provision prescribing joint voting, as the Constitution does in the matter of martial law declaration by the President. I appeal to the House for rationality. If you are thinking that the Supreme Court will support whatever Gloria Macapagal-Arroyo and De Venecia want, please do not insult the members of the Supreme Court. Do not think that the new Chief Justice will sacrifice his reputation on the altar of GMA. Justices who have nothing or little to lose might, but not the Chief. He said recently something about apples and oranges. As the scholastics would put it, verbum sap sat (a word to the wise is enough). ====================================== The JBC on the dock By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 01:59:00 12/04/2006 Filed Under: Judiciary (system of justice), People

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

Published on page A15 of the December 4, 2006 issue of the Philippine Daily Inquirer THE JBC, OF COURSE, IS THE JUDICIAL AND Bar Council, recently rebuffed by five senior Supreme Court justices nominated for consideration as chief justice. But first let us talk about the beginnings and the reason for the existence of the JBC. It will be recalled that, under the 1935 Constitution, all appointees to executive offices and to the judiciary had to get confirmation by the Commission on Appointments of Congress; the only officers not covered were inferior officers exempted by Congress. But all judges and justices had to go through the process. Under the 1973 Constitution, there was no extrinsic check on the Presidents appointing power. Lucky him! The JBC was designed by the 1987 Constitution for appointments to the judiciary. The institution was fathered by former Chief Justice Roberto Concepcion, who saw the JBC as a way of insulating appointments to the judiciary from politics. During the deliberations of the 1986 Constitutional Commission, horror stories were told about individual experiences of commissioners before the former Commission on Appointments. These experiences were probably exceptions to the rule, but the stories were enough to convince a majority of the commissioners to vote for the creation of a JBC. But what is the anatomy of what was created? The JBC consists of seven members with the Chief Justice acting as ex officio chair, and the secretary of justice and a member of Congress as ex-officio members, together with a representative of the Integrated Bar, a retired Supreme Court justice, a practicing lawyer and a representative of the private sector. The latter four are appointed by the President with confirmation by the Commission on Appointments. The primary responsibility of the JBC is to screen persons being considered for appointment to the judiciary and to give to the President a list of at least three nominees for every vacant position in the judiciary. The President can choose only from among those in the list. But there is nothing in the Constitution which prevents the President from rejecting those in a first list and from asking for a fresh list et sic ad infinitum until the expectations of the President are met. There is a JBC created rule which requires prospective appointees to appear for interview. I am not sure when this rule started. But it was only this year that the JBC required prospective appointees to the position of chief justice to appear for public interview. Five justices being considered for nomination declined to appear. What next? The first thing I would note is that the five justices did not apply for the position. Rather, the JBC on its own considered them as included in the list being considered for submission to the President. Should they then be compelled to appear? Or should their non-appearance be construed as a rejection of the position?

Secondly, the five are incumbent holders of very public positions. Their legal thoughts, whether in majority opinions or dissents, are required to be published. Their biases can also be perceived from their writings. I would assume that the members of the JBC can easily familiarize themselves with these. As the secretary of justice put it, what more can you legitimately get out of them in 30 minutes of controlled interviews? I believe in the dictum entia non sunt multiplicanda sine necessitate. Dont clutter the world with useless things. I dont think interviews will yield much, if at all. Thirdly, the fact that applicants to lower positions or applicants from outside are required to appear does not violate the equal protection clause because the incumbent justices are dissimilarly situated from others. Distinctions are allowed where there are real differences. I might even say that the fact that only five justices are automatically listed by the JBC discriminates against the other incumbent justices. Seniority in the judiciary is not a substantial distinction. I am all for transparency. But it is not as if the professional qualifications of the five justices are shrouded in opacity. True, it may be that there are grounds for disqualification that are not public. It may be that substantial and relevant objections have been brought to the attention of the JBC. In such cases, the JBC should make these objections public and ask the nominees to make a public answer, if they care to answer. If they have an answer or if they do not care to answer, then the JBC should be in a position to weigh the importance or lack of importance of the objections. To disqualify the five justices for the sole reason that they declined to appear in a hearing held to determine their suitability for a position for which they had not applied would, to my mind, smack of petulance. True, there are rules. But these are JBC-made rules. Like the Rules of the House and the Rules of the Senate and the Rules of Court, they can be dispensed with by the authors if fairness and wisdom demand it. I believe that there are valid reasons for not applying the rule to incumbent justices. This brings me to my view of the JBC vis--vis appointments to the Supreme Court. When this matter was deliberated upon by the 1986 Constitutional Commission, I voted in favor. On hindsight, I would now reconsider. For purposes of screening appointments to the Supreme Court, I find the JBC too narrow in composition and too vulnerable to manipulation. Briefly, for all the defects of a Commission on Appointments, I would like a return to the 1935 rule for purposes of appointments to the Supreme Court. Who says I am against amending the Constitution? =================================== Enough already muna By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 02:58:00 11/27/2006 Filed Under: Politics, Constitution, Elections

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

Published on page A15 of the November 27, 2006 issue of the Philippine Daily Inquirer PARDON THE BAD IDIOM, BUT IT IS A PITHY way of expressing a very valid sentiment. The sight of the highest leaders of the land announcing a make-or-break final push for the revision of the current Constitution is tragic. It is not that the current Constitution is perfect and beyond improvement or even revision. There is no such thing as a perfect constitution. It is just that a constitution deserves more careful consideration than just a make-or-break rush job to catch a deadline borne out of self-interest. Lets face it. The national leaders advocating Charter change were rebuffed by the Supreme Court in their effort to sneak in a sloppily drafted and handled revision through initiative and referendum. Some of them have not yet fully given up on this and have seen a ray of sunlight in the decision of the Supreme Courtthat Republic Act 6735 is sufficient after all. (I myself have held that RA 6735 is sufficient.) But since the Court has said that revision is not a proper subject for initiative and that what the advocates of initiative were proposing is a revision, the sufficiency or insufficiency of RA 6735 has become irrelevant for Sigaw ng Bayan and company. Speaker Jose de Venecia sees this and so he has come up with his final-push campaign. Charter change will now be through a constituent assembly. But under what circumstances? First, it will be a race toward the start of the campaign for the 2007 elections. True, it may be possible for a small group of legislative experts to slap together a draft for a new Constitution. But the product will not be just that, a draft. It will still have to be submitted for debate within a constituent assembly consisting of people whose attention may well be focused on the coming elections and not on Charter change. Second, the constituent assembly that is envisioned will most certainly encounter a constitutional obstacle. The constituent assembly envisioned by the Constitution is Congress. Congress consists of two houses which means, if it is to be Congress, the Senate and House must both agree to act as a constituent assembly. The Senate, to say the least, is reluctant to act now. If the Senate as a body does not decide to join, then you dont have a legitimate constituent assembly. This will be a matter for the Court to decide and it is unlikely for the Court to arrive at a decision before the De Venecia deadline. Thirdly, even if the Senate decides to join, there will be a big battle about the manner of voting, that is, whether jointly or separately. It is not likely that the Senate will agree to a joint voting. Hence, this will again have to go to the Supreme Court. I doubt that a solution desired by the advocates or even by the President will be achieved by packing the Court with friendly appointees. Aside from the fact that apparently friendly appointees can turn out to be staunchly independent after all, the very idea of packing the Court with friends will be seen as an attempt to convert the Court into a personal tool or fiefdom. Justices are likely to find this highly offensive.

Finally, who will orchestrate this final push? It will be orchestrated and supported by legislators who have manifested their interest in changes that will benefit their own position. They are hardly the ideal authors to whom the nation should entrust the crafting of a fundamental document that will govern the nation for years to come. What then? Elections are due in roughly six months. We will then elect members of the House of Representatives and 12 senators. The voters have been exposed to the debates about the need or lack of need to revise the current Constitution. Voters know that there can be no revision of the Constitution, whether through a constituent assembly or a constitutional convention, without the initial approval of Congress. If Congress decides not to act as a constituent assembly, it is still Congress that decides whether to call a constitutional convention or not. Let those who will run for Congress in the coming elections manifest to the people what their sentiments are about revising the Constitution. There is an alternative which Congress, whether this Congress or the next, can do for the people. Let the people decide whether there should be a constitutional convention instead of Congress acting as a constituent assembly. The Constitution says that Congress, by a majority vote of all its members, may submit to the electorate the question of calling a constitutional convention. Some people who have vigorously supported initiative and referendum or even a constituent assembly also accuse critics of the initiative movement of being opposed to change. It is pointless to try to disabuse such thinking. The fact of the matter, however, is that there has been no time for debate on the changes being advocated. Rather, those who oppose initiative now or even a constituent assembly have trained their guns not against change as such but against the process being employed. Should a rational and honest process get started, there will be plenty of time for rational debate about what changes to make. There may even be much agreement. ===================================== The fault is in RA 7941 By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 00:48:00 04/16/2007 Filed Under: Elections, Laws MANILA, Philippines - I join the clamor for the release of the names nominated for the party-list system. I am not sure, however, if "barking" at the Commission on Elections alone would be an adequate approach to the problem. The clamor should be addressed also to the party-list organizations themselves and, if this fails, to the judiciary. Why do I say that barking at the Comelec alone may not work? My reason is: While Sec. 7 of RA 7941 (The Party-List System Act) commands the Comelec to publish a certified list of parties and organizations which have applied for participation in the party-list system, it also categorically tells the Comelec: "The names of the party-list nominees shall not be shown on the certified list."

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

Under our system of law, this command is presumed to be valid and it effectively ties the hands of the Comelec. The Comelec, of course, may challenge the validity of this provision. But I have the impression that for reasons about which everyone is free to speculate, the Comelec is content to have its hands tied. Hence, don't expect help from the as-yetunredeemed Comelec. However, is there logic in this prohibition imposed on the Comelec by RA 7941? To my mind, none. It is not the object of the electoral exercise to place parties and organizations in the House of Representatives. As RA 7941 says, a party and organization merely submits "a manifestation of its desire to participate in the party-list system." The object of the electoral exercise is to place in Congress people, meaning, party-list representatives. Of what use is knowing what groups may participate in the party-list elections if the voters do not know what kind of people they seek to place in Congress? The significance of the vote cast for a party is not that it is a vote for an organization but that it is a vote for the nominees of the parties or organizations. The system, after all, is intended, in the language of Section 2 of RA 7941, to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack welldefined political constituencies . . . to become members of the House of Representatives. This is in keeping with the desire of the Constitution that the party-list system serve as a vehicle for giving voice to the traditionally voiceless. The voters, therefore, should be enabled to assess whether the nominees can contribute to the formulation and enactment of appropriate legislation that will benefit the underprivileged and not just the nominees themselves or the ruling elite. Is it possible that a party-list organization may, as a matter of fact, become a vehicle for the elite? Yes, because while Sec. 6 of RA 7941 empowers the Comelec to scrutinize the qualities of the parties or organizations for purposes of qualifying or disqualifying them, no duty is imposed on the Comelec to scrutinize the qualities of the nominees. Scrutinizing them is the prerogative of voters. Moreover, the party-list organizations are not only free to choose whom to nominate but they also determine the ranking of their nominees. Winners are proclaimed by the Comelec in the order of party-list ranking. Sec. 13 says, "Party-list representatives shall be proclaimed by the Comelec based on the list of names submitted by the respective parties, organizations, or coalitions to the Comelec according to their ranking in said list." The top ranking nominees can very well be self-interested persons or agents of the existing power elite. For this reason, there is evidence now of elitist efforts to buy top seats in party-list nominations. But, as I said, the hands of the Comelec are effectively (and to the Comelec's apparent satisfaction) tied by RA 7941. Is there a way of unbinding the ties? I believe there is, even if circuitously. Parties and organizations, upon their registration for

participation in the electoral system, clothe themselves with a public character. They no longer are simply private organizations. What they do, what they are and what they stand for become matters of public interest subject to public scrutiny. They are subject to the Constitution's demands for transparency. And they are not bound by the secrecy rule of RA 7941. The secrecy rule is addressed only to the Comelec. The Constitution's demand for transparency is superior to the non-disclosure command of RA 7941. Where can we find the constitutional demands for transparency? To begin with, there is Sec. 28 of the Constitution's Declaration of Principles: "Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest." More important, however, is Sec. 7 of the Bill of Rights: "The right of the people to information on matters of public concern shall be recognized." Knowing who the candidates are is a matter of highest public concern. How can this right be enforced? By mandamus filed in court against the Comelec and against party-list organizations hiding behind the Comelec. Through these provisions, as explained in existing jurisprudence, a court can compel the Comelec and the secretive organizations to reveal the names of their nominees. Jus standi is not a problem. Jurisprudence has held that the right to be informed belongs to every citizen by the simple fact of being a citizen. ========================= Churchmen and politics (Part I) By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 00:09:00 03/05/2007 Filed Under: Elections, Politics, Churches (organisations) MANILA, Philippines-AS THE ELECTION PERIOD HEATS UP, VOICES will once again be heard from the pulpit, and the charge of violation of separation of Church and State is bound to follow. It should be remembered, however, that the non-establishment clause of the Constitution, like the other provisions of the Bill of Rights, is a command addressed to the State. Thus only the State can violate it. As far as the churches are concerned, they can be beneficiaries of the States violation of the non-establishment clause but they cannot be the violators. Thus when politicians decry a violation by the Church and churchmen of the Church and State separation principle, what they are really doing is violating not only free exercise but also freedom of speech and expression. The key provision on free exercise is found, like the provision on non-establishment, in Article III, Sec. 5. No law shall be made . . . prohibiting the free exercise thereof. Not content with that, Sec. 5 adds two other clauses: 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

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

civil or political rights. A violation of the free exercise clause by the State can come in the form of either prohibition or compulsion. Philippine cases on free exercise of religion are relatively few but not uninteresting. Let me just focus on the prohibition of religious test for the exercise of civil or political rights. This prohibition is a corollary of the guarantee of religious liberty. The purpose of this provision is to render government powerless to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have or, perhaps more properly, profess to have a belief in some particular kind of religious concept. When the religious test that is imposed by law is overt and clear, the constitutional problem it presents is easy to resolve. For instance, if belief in the existence of God should be required as a qualification for public office, the violation would be clear. But there can be subtler ways of violation. Not too long ago, the Supreme Court was asked to prohibit Jaime Cardinal Sin, Mike Velarde and other religious leaders from giving directions to their adherents on how to vote. The case was dismissed on technical grounds. But the substantive question remains alive, although no one of substance is pushing it. One person who expressed in very strong language his opposition to religious involvement in politics was Barry Goldwater. The occasion was when the Moral Majority leader Jerry Falwell criticized the nomination of Sandra Day OConnor to the Supreme Court. Goldwater said: The great decisions of government cannot be dictated by the concerns of religious factions . . . We have succeeded for 205 years in keeping the affairs of the state from the uncompromising idealism of religious groups, and we mustnt stop now! Eloquent the words may be, but the second sentence could not have been more inaccurate historically. If you measure it against history, whether American or Philippine, the statement is false. Churches have influenced American politics from the days of Thomas Jefferson down to the prophetic preaching of Martin Luther King and the pastoral letters of the American bishops. Likewise, in the Philippines, religion has been involved in politics from the days of Fathers Gomez, Burgos and Zamora down to the pastoral letters on social justice and on the conduct of elections. I do not see this involvement coming to an end. Depending on circumstances, it can even intensify. Thus it is legitimate to ask how religion fits into the Philippine political culture. The issue can be broken down into several questions: (1) In their sermons and homilies, should religious leaders limit themselves to teaching general moral ideas, or should they draw specific political conclusions? (2) Should they oppose or support particular political parties or candidates? (3) Should they refrain from running for public office? (4) Should they engage in movements (e.g., lobbying and demonstrations) that put pressure on political officials? (5) Should they advocate specific policy conclusions or should they limit themselves to

general recommendations? (6) When engaging in debate on public issues, should they use religious arguments or only secular arguments? These are some of the questions that come up when one analyzes the objections to religious involvement in politics. The questions invite discussion, and I shall attempt to present my own thinking on the subject. First of all, it is not enough to say the Constitution guarantees the freedom of expression of the clergy. The issue transcends mere constitutionality. Neither is it enough to assert that through the centuries Judaism and Christianity have firmly held that religious duty includes active involvement in politics and that the Scripture indicates that God cares about justice and public morality. I too firmly believe that the pursuit of justice and morality is a religious obligation for all believers. Moreover, I also believe that, when it comes to contests for the formation of public policy, individuals cannot effectively deal with the vastness and complexity of issues. There is therefore need for organized action. But whether engaging in individual or in organized action, the questions I have enumerated need to be dealt with. (To be continued) Churchmen and politics (Part 2) By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 03:44:00 03/12/2007 Filed Under: Politics, Churches (organisations) MANILA, Philippines-FOR ME, THE SIMPLEST AMONG THE QUEStions is whether a member of the clergy, particularly one who runs a parish or a diocese, should run for public office. Constitutionally, the prevailing view is that there is no constitutional obstacle for a cleric running for office. As to the obstacle arising from Canon Law prescription, it is not insurmountable. What remains, therefore, is a question of prudence or propriety. My view on this is that combining public office and religious ministry can strain Church-State relations and community unity. I would therefore follow the principle that one must choose between being fully a church minister or a public official. Combining the two can be both religiously and politically unhealthy. Another important question touches on the substance of preaching by the clergy and religious. By preaching I do not simply refer to sermons and homilies in church. I include any public or semi-public pronouncements. Should the clergy and churches limit themselves to teaching general moral ideas, or may they advocate as conclusions specific political actions? Certainly no one will deny the clergy the right to preach about morality. That is their task and they would be remiss in their duties if they habitually avoid moral issues. Thus, no one should deny them the right to discuss publicly whether abortion is moral or immoral, or that the rich should or should not help the poor, or that employers should or should not pay workers a living wage, or that homosexual acts are or are not sinful, or that wars are or are not morally wrong. This is all part of ordinary religious preaching. It is a different matter, however, when out of general

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

moral teachings, specific public positions are advocatedsuch as impeachment, Charter change, or even the closure of videoke bars. Of course, there are specific conclusions that flow naturally from general positions. For instance, if a priest believes that consensual sexual acts of homosexuals done in the privacy of their bedrooms are not harmful to the public, the natural conclusion will be that they should not be criminalized. But specific practical conclusions do not always come out naturally. The fact that an act is clearly sinful does not lead to the easy conclusion that it should be penalized. If it were, our prisons would be more crowded than they already are. Why is it that people sometimes do not want their religious leaders to tell them what specific actions they should take or what political conclusions they should make? I believe that it is all part and parcel of being a citizen of a democracy. I have my own mind. Dont insult me. Let me draw my own conclusion! This is a perfectly legitimate attitude. To avoid alienating people who have such an attitude, a cleric must carefully and respectfully present his conclusions. If the practical conclusions are presented as the product of ones own study and are presented for people to agree or disagree with, then no one should feel insulted or offended. Another objection to specific pronouncements by clerics is that their competence and their access to needed facts for drawing conclusions are limited. Rarely is their expertise related to economics, law, sociology, or politics, etc. But specific conclusions about the morality of economic or political decisions can depend very much on the dynamics and nuances of these specialized fields. If the cleric has competence in these fields, then his conclusion can be more persuasive. But it is also good to remember that the people whose task it is to make important decisions that impact on the lives of people, e.g., lawmakers, do not always have the needed expertise on what they may be talking about. Some lawmakers easily talk through their hat. But this is no reason for a cleric to be reckless. While a cleric, however, should not be reckless in his statements, neither should he be inordinately pusillanimous. There are political and economic decisions that have great moral significance. These should be faced, with prudence, yes, but not with cowardly avoidance of conflict. Risks are part of the apostolic mission. Clerics do make mistakes, out of carelessness perhaps, or through excess of zeal or even for more foolish reasons. But in my own estimate, mistakes and all, a courageous stand of clerics and churches do more good than harm. The courage of the churches in the Philippines has made significant contributions to improving our economic and political life ======================================= Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 111230 September 30, 1994 ENRIQUE T. GARCIA, ET AL., petitioners, vs. COMMISSION ON ELECTIONS and SANGGUNIANG BAYAN OF MORONG, BATAAN, respondents. Alfonzo M. Cruz Law Offices for petitioners.

PUNO, J.: The 1987 Constitution is borne of the conviction that people power can be trusted to check excesses of government. One of the means by which people power can be exercised is thru initiatives where local ordinances and resolutions can be enacted or repealed. An effort to trivialize the effectiveness of people's initiatives ought to be rejected. In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan ng Morong, Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special Economic Zone in accord with Republic Act No. 7227. On May 24, 1993, petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993. The petition states: I. Bawiin, nulipikahin at pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye 1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEZ na walang kondisyon. II. Palitan ito ng isang Pambayang Kapasiyahan na aanib lamang ang Morong sa SSEZ kung ang mga sumusunod na kondisyones ay ipagkakaloob, ipatutupad at isasagawa para sa kapakanan at interes ng Morong at Bataan: (A). Ibalik sa Bataan ang "Virgin Forests" isang bundok na hindi nagagalw at punong-puno ng malalaking punong-kahoy at iba'-ibang halaman. (B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito sa Bataan. (K). Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa pagkukuenta ng salaping ipinagkakaloob ng pamahalaang national o "Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa Lalawigan. (D). Payagang magtatag rin ng sariling "special economic zones" ang bawat bayan ng Morong, Hermosa at Dinalupihan. (E). Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain ng SBMA. (G). Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng nasabing mga lupa. (H). Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na oras at bukod dito sa magbukas pa ng pinto sa hangganan naman ng Morong at Hermosa upang magkaroon ng pagkakataong

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

umunlad rin ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan. (I). Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at Morong-Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at tuloy makatulong sa pangangalaga ng mga kabundukan. (J). Magkaroon ng sapat na representasyon sa pamunuan ng SBMA ang Morong, Hermosa at Bataan. The municipality of Morong did not take any action on the petition within thirty (30) days after its submission. Petitioners then resorted to their power of initiative under the Local Government Code of 1991. 3 They started to solicit the required number of signatures 4 to cause the repeal of said resolution. Unknown to the petitioners, however, the Honorable Edilberto M. de Leon, Vice Mayor and Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993 to the Executive Director of COMELEC requesting the denial of " . . . the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productive and futility." 5 We quote the letter, viz: The Executive Director COMELEC Intramuros, Metro Manila S i r: In view of the petition filed by a group of proponents headed by Gov. Enrique T. Garcia, relative to the conduct of a local initiative and/or referendum for the annulment of Pambayang Kapasyahan Blg. 10, Serye 1993, may we respectfully request to deny the petition referred thereto considering the issues raised by the proponents were favorably acted upon and endorsed to Congress and other government agencies by the Sangguniang Bayan of Morong. For your information and guidance, we are enumerating hereunder the issues raised by the petitioners with the corresponding actions undertaken by the Sangguniang Bayan of Morong, to wit: ISSUES RAISED BY PROPONENTS I. Pawalang-bisa ang Pambayang Kapasyahan Blg. 10, Serye ng taong 1993. II. Palitan ito ng isang Kapasyahang Pag-anib sa SSEZ kung: a) Ibabalik sa Morong ang pag-aaring Grande Island, kabundukan at Naval Reservation; b) Ibase sa aring Lupa ng LGU ang kikitain at mapapasok na manggagawa nila sa SSEZ; c) Isama ang nasabing lupa sa pagkukuwenta ng "IRA" ng Morong, Hermosa at Dinalupihan; d) Makapagtatag ng sariling "economic zones" ang Morong, Hermosa at Dinalupihan; e) Pabayaan bukas ang pinto ng Morong patungong SSEZ at magbukas ng dalawang (2) pinto pa; (f) Konkretohin ang daang Morong papunta sa Orani

at Dinalupihan; g) Pumili ng SBMA Chairman na taga-ibang lugar. ACTIONS UNDERTAKEN BY THE SB OF MORONG 1. By virtue of R.A. 7227, otherwise known as the Bases Conversion Development Act of 1992, all actions of LGU's correlating on the above issues are merely recommendatory in nature when such provisions were already embodied in the statute. 2. Corollary to the notion, the Sangguniang Bayan of Morong passed and approved Pambayang Kapasyahan Blg. 18, Serye 1993, requesting Congress of the Philippines to amend certain provisions of R.A. 7227, wherein it reasserted its position embodied in Pambayan Kapasyahan Blg. 08 and Blg. 12, Serye ng taong 1992, (Attached and marked as Annex "A:) which tackled the same issues raised by the petitioners particularly items a), b), c), e), and g). 3. Item d) is already acted upon by BCDA Chairman Arsenio Bartolome III in its letter to His Excellency President Fidel V. Ramos, dated May 7, 1993 (Attached and marked as Annex "B") with clarifying letter from BCDA Vice-Chairman Rogelio L. Singson regarding lands on Mabayo and Minanga dated June 3, 1993 that only lands inside the perimeter fence are envisioned to be part of SBMA. 4. Item f), President Ramos in his marginal note over the letter request of Morong, Bataan Mayor Bienvenido L. Vicedo, the Sangguniang Bayan and Congressman Payumo, when the Resolution of Concurrence to SBMA was submitted last April 6, 1993, order the priority implementation of completion of Morong-Dinalupihan (Tasik-Road) Project, including the Morong-Poblacion-Mabayo Road to DPWH. (Attached and marked as Annex "C"). Based on the foregoing facts, the Sangguniang Bayan of Morong had accommodated the clamor of the petitioners in accordance with its limited powers over the issues. However, the Sangguniang Bayan of Morong cannot afford to wait for amendments by Congress of R.A. 7227 that will perhaps drag for several months or years, thereby delaying the development of Morong, Bataan. Henceforth, we respectfully reiterate our request to deny the petition for a local initiative and/or referendum because the exercise will just promote divisiveness, counter productive and futility. Thank you and more power. Very truly yours, (SGD.) EDILBERTO M. DE LEON Mun. Vice Mayor/Presiding Officer In its session of July 6, 1993, the COMELEC en banc resolved to deny the petition for local initiative on the ground that its subject is "merely a resolution (pambayang kapasyahan) and not an ordinance." 6 On July 13, 1993, the COMELEC en banc further resolved to direct Provincial Election Supervisor, Atty. Benjamin N. Casiano, to hold action on the authentication of signatures being gathered by petitioners. 7

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

These COMELEC resolutions are sought to be set aside in the petition at bench. The petition makes the following submissions: 5. This is a petition for certiorari and mandamus. 5.01 For certiorari, conformably to Sec. 7, Art. IX of the Constitution, to set aside Comelec Resolution Nos. 93-1676 and 93-1623 (Annexes "E" and "H") insofar as it disallowed the initiation of a local initiative to annul PAMBAYANG KAPASYAHAN BLG. 10, SERYE 1993 including the gathering and authentication of the required number of signatures in support thereof. 5.01.1 As an administrative agency, respondent Comelec is bound to observe due process in the conduct of its proceedings. Here, the subject resolutions, Annexes "E" and "H", were issued ex parte and without affording petitioners and the other proponents of the initiative the opportunity to be heard thereon. More importantly, these resolutions and/or directives were issued with grave abuse of discretion. A Sangguniang Bayan resolution being an act of the aforementioned local legislative assembly is undoubtedly a proper subject of initiative. (Sec. 32, Art. VI, Constitution) 5.02 For mandamus, pursuant to Sec. 3, Rule 65, Rules of Court, to command the respondent Comelec to schedule forthwith the continuation of the signing of the petition, and should the required number of signatures be obtained, set a date for the initiative within forty-five (45) days thereof. 5.02.1 Respondent Comelec's authority in the matter of local initiative is merely ministerial. It is duty-bound to supervise the gathering of signatures in support of the petition and to set the date of the initiative once the required number of signatures are obtained. If the required number of signatures is obtained, the Comelec shall then set a date for the initiative during which the proposition shall be submitted to the registered voters in the local government unit concerned for their approval within sixty (60) days from the date of certification by the Comelec, as provided in subsection (g) hereof, in case of provinces and cities, forty-five (45) days in case of municipalities, and thirty (30) days in case of barangays. The initiative shall then be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. (Sec. 22, par. (h) R.A. 7160. Respondent COMELEC opposed the petition. Through the Solicitor General, it contends that under the Local Government Code of 1991, a resolution cannot be the subject of a local initiative. The same stance is assumed by the respondent Sangguniang Bayan of Morong. 8 We grant the petition. The case at bench is of transcendental significance because it involves an issue of first impression delineating the extent of the all important original power of the people to legislate. Father Bernas explains that "in republican systems, there are generally two kinds of legislative power, original and derivative. Original legislative power is possessed by

the sovereign people. Derivative legislative power is that which has been delegated by the sovereign people to legislative bodies and is subordinate to the original power of the people." 9 Our constitutional odyssey shows that up until 1987, our people have not directly exercised legislative power, both the constituent power to amend or revise the Constitution or the power to enact ordinary laws. Section 1, Article VI of the 1935 Constitution delegated legislative power to Congress, thus "the legislative power shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House of Representatives." Similarly, section 1, Article VIII of the 1973 Constitution, as amended, provided that "the Legislative power shall be vested in a Batasang Pambansa." 10 Implicit in the set up was the trust of the people in Congress to enact laws for their benefit. So total was their trust that the people did not reserve for themselves the same power to make or repeal laws. The omission was to prove unfortunate. In the 70's and until the EDSA revolution, the legislature failed the expectations of the people especially when former President Marcos wielded lawmaking powers under Amendment No. 6 of the 1973 Constitution. Laws which could have bridled the nation's downslide from democracy to authoritarianism to anarchy never saw the light of day. In February 1986, the people took a direct hand in the determination of their destiny. They toppled down the government of former President Marcos in a historic bloodless revolution. The Constitution was rewritten to embody the lessons of their sad experience. One of the lessons is the folly of completely surrendering the power to make laws to the legislature. The result, in the perceptive words of Father Bernas, is that the new Constitution became "less trusting of public officials than the American Constitution." 11 For the first time in 1987, the system of people's initiative was thus installed in our fundamental law. To be sure, it was a late awakening. As early as 1898, the state of South Dakota has adopted initiative and referendum in its constitution 12 and many states have followed suit. 13 In any event, the framers of our 1987 Constitution realized the value of initiative and referendum as an ultimate weapon of the people to negate government malfeasance and misfeasance and they put in place an overarching system. Thus, thru an initiative, the people were given the power to amend the Constitution itself. Sec. 2 of Art. XVII provides: "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." Likewise, thru an initiative, the people were also endowed with the power to enact or reject any act or law by congress or local legislative body. Sections 1 and 32 of Article VI provide: Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives except to the extent reserved to the people by the provisions on initiative and referendum.

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xxx xxx xxx Sec. 32. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten 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 thereto. The COMELEC was also empowered to enforce and administer all laws and regulations relative to the conduct of an initiative and referendum. 14 Worthwhile noting is the scope of coverage of an initiative or referendum as delineated by section 32 Art. VI of the Constitution, supra any act or law passed by Congress or local legislative body. In due time, Congress respondent to the mandate of the Constitution. It enacted laws to put into operation the constitutionalized concept of initiative and referendum. On August 4, 1989, it approved Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Liberally borrowed from American laws, 15 R.A. No. 6735, among others, spelled out the requirements 16 for the exercise of the power of initiative and referendum, the conduct of national initiative and referendum; 17 procedure of local initiative and referendum; 18 and their limitations. 19 Then came Republic Act No. 7160, otherwise known as The Local Government Code of 1991. Chapter 2, Title XI, Book I of the Code governed the conduct of local initiative and referendum. In light of this legal backdrop, the essential issue to be resolved in the case at bench is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong, Bataan is the proper subject of an initiative. Respondents take the negative stance as they contend that under the Local Government Code of 1991 only an ordinance can be the subject of initiative. They rely on section 120, Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides: "Local Initiative Defined. Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance." We reject respondents' narrow and literal reading of the above provision for it will collide with the Constitution and will subvert the intent of the lawmakers in enacting the provisions of the Local Government Code of 1991 on initiative and referendum. The Constitution clearly includes not only ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of Article VI provides in luminous language: "The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress, or local legislative body . . ." An act includes a resolution. Black 20 defines an act as "an expression of will or purpose . . . it may denote something done . . . as a legislature, including not

merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, and determinations . . . ." It is basic that a law should be construed in harmony with and not in violation of the constitution. 21 In line with this postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to the meaning of the legislative, if the words or provisions are obscure, or if the enactment is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language used." 22 The constitutional command to include acts (i.e., resolutions) as appropriate subjects of initiative was implemented by Congress when it enacted Republic Act No. 6735 entitled "An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor." Thus, its section 3(a) expressly includes resolutions as subjects of initiatives on local legislations, viz: Sec. 3. Definition of Terms For purposes of this Act, the following terms shall mean; (a) "Initiative" is the power of the people to propose amendments to the Constitution or to propose and enact legislations through an election called for the purpose. There are three (3) systems of initiative, namely: a.1. Initiative on the Constitution which refers to a petition proposing amendments to the Constitution. a.2. Initiative on statutes which refers to a petition proposing to enact a national legislation; and a.3. Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution, or ordinance. (Emphasis ours) Similarly, its section 16 states: "Limitations Upon Local Legislative Bodies Any proposition on ordinance or resolution approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended, by the local legislative body concerned within six (6) months from the date therefrom . . . ." On January 16, 1991, the COMELEC also promulgated its Resolution No. 2300 entitled "In Re Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum, on National and Local Laws." It likewise recognized resolutions as proper subjects of initiatives. Section 5, Article I of its Rules states: "Scope of power of initiative The power of initiative may be exercised to amend the Constitution, or to enact a national legislation, a regional, provincial, city, municipal or barangay law, resolution or ordinance." There can hardly be any doubt that when Congress enacted Republic Act No. 6735 it intend resolutions to be proper subjects of local initiatives. The debates confirm this intent. We quote some of the interpellations when the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and House Bill No. 21505 were being considered in the House of Representatives, viz:

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

THE SPEAKER PRO TEMPORE. The Gentleman from Camarines Sur is recognized. MR. ROCO. On the Conference Committee Report on the disagreeing provisions between Senate Bill No. 17 and the consolidated House Bill No. 21505 which refers to the system providing for the initiative ad referendum, fundamentally, Mr. Speaker, we consolidated the Senate and the House versions, so both versions are totally intact in the bill. The Senators ironically provided for local initiative and referendum and the House of Representatives correctly provided for initiative and referendum on the Constitution and on national legislation. I move that we approve the consolidated bill. MR. ALBANO. Mr. Speaker. THE SPEAKER PRO TEMPORE. What is the pleasure of the Minority Floor Leader? MR. ALBANO. Will the distinguished sponsor answer just a few questions? THE SPEAKER PRO TEMPORE. What does the sponsor say? MR. ROCO. Willingly, Mr. Speaker. THE SPEAKER PRO TEMPORE. The Gentleman will please proceed. MR. ALBANO. I heard the sponsor say that the only difference in the two bills was that in the Senate version there was a provision for local initiative and referendum, whereas the House version has none. MR. ROCO. In fact, the Senate version provided purely for local initiative and referendum, whereas in the House version, we provided purely for national and constitutional legislation. MR. ALBANO. Is it our understanding, therefore, that the two provisions were incorporated.? MR. ROCO. Yes, Mr. Speaker. MR. ALBANO. So that we will now have a complete initiative and referendum both in the constitutional amendment and national legislation. MR. ROCO. That is correct. MR. ALBANO. And provincial as well as municipal resolutions? MR. ROCO. Down to barangay, Mr. Speaker. MR. ALBANO. And this initiative and referendum is in consonance with the provision of the Constitution whereby it mandates this Congress to enact the enabling law, so that we shall have a system which can be done every five years. Is it five years in the provision of the Constitution? MR. ROCO. That is correct, Mr. Speaker. For constitutional amendments to the 1987 Constitution, it is every five years. 23 Contrary to the submission of the respondents, the

subsequent enactment of the local Government Code of 1991 which also dealt with local initiative did not change the scope of its coverage. More specifically, the Code did not limit the coverage of local initiatives to ordinances alone. Section 120, Chapter 2, Title IX Book I of the Code cited by respondents merely defines the concept of local initiative as the legal process whereby the registered voters of a local government unit may directly propose, enact, or amend any ordinance. It does not, however, deal with the subjects or matters that can be taken up in a local initiative. It is section 124 of the same Code which does. It states: Sec. 124. Limitations on Local Initiatives. (a) The power of local initiative shall not be exercised more than once a year. (b) Initiative shall extend only to subjects or matters which are within the legal powers of the Sanggunians to enact. xxx xxx xxx This provision clearly does not limit the application of local initiatives to ordinances, but to all "subjects or matters which are within the legal powers of the Sanggunians to enact," which undoubtedly includes resolutions. This interpretation is supported by Section 125 of the same Code which provides: "Limitations upon Sanggunians. Any proposition or ordinance approved through the system of initiative and referendum as herein provided shall not be repealed, modified or amended by the sanggunian concerned within six (6) months from the date of the approval thereof . . . ." Certainly, the inclusion of the word proposition is inconsistent with respondents' thesis that only ordinances can be the subject of local initiatives. The principal author of the Local Government Code of 1991, former Senator Aquilino Pimentel, espouses the same view. In his commentaries on the said law, he wrote, viz: 24 4. Subject Matter Of Initiative. All sorts of measures may be the subject of direct initiative for as long as these are within the competence of the Sanggunian to enact. In California, for example, direct initiatives were proposed to enact a fishing control bill, to regulate the practice of chiropractors, to levy a special tax to secure a new library, to grant a franchise to a railroad company, and to prevent discrimination in the sale of housing and similar bills. Direct initiative on the local lever may, therefore, cover all kinds of measures provided that these are within the power of the local Sanggunians to enact, subject of course to the other requisites enumerated in the Section. 5. Form of Initiative. Regarding the form of the measure, the section speaks only of "ordinance," although the measure may be contained in a resolution. If the registered voters can propose ordinances, why are they not allowed to propose resolutions too? Moreover, the wording of Sec. 125, below, which deals not only with ordinances but with "any proposition" implies the inclusion of resolutions. The discussion hereunder will also show support for the conclusion that resolutions may indeed be the subject of local initiative. We note that respondents do not give any reason

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

why resolutions should not be the subject of a local initiative. In truth, the reason lies in the well known distinction between a resolution and an ordinance i.e., that a resolution is used whenever the legislature wishes to express an opinion which is to have only a temporary effect while an ordinance is intended to permanently direct and control matters applying to persons or things in general. 25 Thus, resolutions are not normally subject to referendum for it may destroy the efficiency necessary to the successful administration of the business affairs of a city. 26 In the case at bench, however, it can not be argued that the subject matter of the resolution of the municipality of Morong merely temporarily affects the people of Morong for it directs a permanent rule of conduct or government. The inclusion of Morong as part of the Subic Special Economic Zone has far reaching implications in the governance of its people. This is apparent from a reading of section 12 of Republic Act No. 7227 entitled "An Act Accelerating the Conversion of Military Reservations Into Other Productive Uses, Creating the Bases Conversion and Development Authority For This Purpose, Providing Funds Therefor and For Other Purposes." to wit: Sec. 12. Subic Special Economic Zone. Subject to the concurrence by resolution of the sangguniang panlungsod of the City of Olongapo and the sangguniang bayan of the Municipalities of Subic, Morong and Hermosa, there is hereby created a Special Economic and Free-port Zone consisting of the City of Olongapo and the Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval Base and its contiguous extensions as embraced, covered, and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America as amended, and within the territorial jurisdiction of the Municipalities of Morong and Hermosa, Province of Bataan, hereinafter referred to a as the Subic Special Economic Zone whose metes and bounds shall be delineated in a proclamation to be issued by the President of the Philippines. Within thirty (30) days after the approval of this Act, each local government unit shall submit its resolution of concurrence to join the Subic Special Economic Zone to the Office of the President. Thereafter, the President of the Philippines shall issue a proclamation defining the metes and bounds of the zone as provided herein. The abovementioned zone shall be subject to the following policies: (a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments; (b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, into a exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw material, capital and equipment. However, exportations or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the

Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines: (c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olongapo and the Municipality of Subic, and other municipalities contiguous to the base areas. In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter; (d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities and futures shall be allowed and maintained in the Subic Special Economic Zone; (e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks and other financial institutions within the Subic Special Economic Zone; (f) Banking and finance shall be liberalized with the establishment of foreign currency depository units of local commercial banks and offshore banking units of foreign banks with minimum Central Bank regulation; (g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less than Two hundred fifty thousand dollars ($250,000), his/her spouse and dependent children under twentyone (21) years of age, shall be granted permanent resident status within the Subic Special Economic Zone. They shall have freedom of ingress and egress to and from the Subic Special Economic Zone without any need of special authorization from the Bureau of Immigration and Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this Act may also issue working visas renewable every two (2) years to foreign executives and other aliens possessing highly-technical skills which no Filipino within the Subic Special Economic Zone possesses, as certified by the Department of Labor and Employment. The names of aliens granted permanent residence status and working visas by the Subic Bay Metropolitan Authority shall be reported to the Bureau of Immigration and Deportation within thirty (30) days after issuance thereof. (h) The defense of the zone and the security of its perimeters shall be the responsibility of the National Government in coordination with the Subic Bay Metropolitan Authority. The Subic Bay Metropolitan Authority shall provide and establish its own internal security and fire fighting forces; and (i) Except as herein provided, the local government

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

units comprising the Subic Special Economic Zone shall retain their basic autonomy and identity. The cities shall be governed by their respective charters and the municipalities shall operate and function in accordance with Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In relation thereto, section 14 of the same law provides: Sec. 14. Relationship with the Conversion Authority and the Local Government Units. (a) The provisions of existing laws, rules and regulations to the contrary notwithstanding, the Subic Authority shall exercise administrative powers, rulemaking and disbursement of funds over the Subic Special Economic Zone in conformity with the oversight function of the Conversion Authority. (b) In case of conflict between the Subic Authority and the local government units concerned on matters affecting the Subic Special Economic zone other than defense and security, the decision of the Subic Authority shall prevail. Considering the lasting changes that will be wrought in the social, political, and economic existence of the people of Morong by the inclusion of their municipality in the Subic Special Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not material that the decision of the municipality of Morong for the inclusion came in the form of a resolution for what matters is its enduring effect on the welfare of the people of Morong. Finally, it cannot be gained that petitioners were denied due process. They were not furnished a copy of the letter-petition of Vice Mayor Edilberto M. de Leon to the respondent COMELEC praying for denial of their petition for a local initiative on Pambayang Kapasyahan Blg. 10, Serye 1993. Worse, respondent COMELEC granted the petition without affording petitioners any fair opportunity to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but the sanctity of the sovereignty of the people, their original power to legislate through the process of initiative. Ours is the duty to listen and the obligation to obey the voice of the people. It could well be the only force that could foil the mushrooming abuses in government. IN VIEW WHEREOF, the petition is GRANTED and COMELEC Resolution 93-1623 dated July 6, 1993 and Resolution 93-1676 dated July 13, 1993 are ANNULLED and SET ASIDE. No costs. SO ORDERED. Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan and Mendoza, JJ., concur. Feliciano, Padilla, Bidin, JJ., are on leave. # FOOTNOTES 9 Constitutional Structure and Powers of Government, 1991 ed., p. 39. 10 Section 1, Article VIII of the original 1973 Constitution provides: "The Legislative power shall be

vested in a National Assembly." Under Amendment No. 6 of the same Constitution, legislative power was shared by the President. 11 Sounding Board, Today's issue of September 6, 1994. 12 State ex rel. Wagner v. Summers, 33 SD 40, 144 NW 730. 13 Among them, California, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Nebraska, Oklahoma, Oregon, Utah, and Washington. 14 Section 2(1) C, Art. IX of the 1987 Constitution. 15 Vol. VI, Journal of the House of Representatives, Second Regular Session, 1988-89, February 14, 1989, p. 141 Sponsorship Speech of then Congressman, now Senator Raul Roco of H.B. No. 21505. 16 Sec. 5 of R.A. No. 6735. 17 Sec. 8, ibid. 20 Law Dictionary, 5th ed., p. 24. 21 Agpalo, Statutory Construction, 2nd ed., 1990 ed., p. 189 citing PLDT v. Collector of Internal Revenue, 90 Phil. 674; Hebron v. Reyes, 104 Phil. 175; Primicias v. Fugoso, 80 Phil. 1. 22 24 Phil. 37, 47 [1913]. 23 Journal of the House of Representatives, Vol. VIII, June 8, 1989, p. 960; see also Vol. VII, June 7, 1990, p. 762, sponsorship remarks of Rep. Acosta; Vol. I, July 24, 1990, p. 92, sponsorship remarks of Rep. Puzon. 24 The Local Government Code of 1991, The Key to National Development, pp. 229-230. 25 Words and Phrases, Permanent Edition, Vol. 37 A, p. 6, citing Coney v. Texas Division of United Daughters of the Confederacy, Tex., 164 S.W. 24, 26; see also Allen v. Wise, 50 S.E. 2d 69, 71, 204 Ga. 415. 26 122 ALR, Annotated, p. 770 citing Hoping v. Richmond, 170 Cal. 605, 150 p. 977. The Lawphil Project - Arellano Law Foundation ========================== Marriage and the Natl Statistics Office By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 01:05:00 12/29/2008 Filed Under: Government, Family THE year 2008 started as a difficult year for priests who wanted to serve their flock by being able to solemnize marriages. Now that the year is ending, the problem has eased, but not completely. Last January, I wrote about some 30 priests whose licenses to solemnize marriage had expired at the

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

end of 2007 and had decided not to renew their license in protest against the new requirements for renewal imposed by the National Statistics Office (NSO). Apparently, not satisfied with the training priests get in seminaries, the NSO decided to require (1) proof of attendance in a two-day orientation seminar it conducted for solemnizing officers, (2) a sworn statement containing the brief history of the religion/religious sect, and (3) the list of 200 bona fide active members stating therein their complete address and signed by the members. Ah, yes, also a certificate of live birth! Mercifully, the requirement of attendance in a two-day seminar was repudiated by higher authorities and was dropped. But the requirement of a certificate of live birth remains and it is giving my religious superior headaches. How so? My authorization to perform civil marriages expires at the end of this year and I have four marriages of former students lined up for January and more in the next months. The experience I have gone through to have my authorization renewed has been very funny if not exasperating. The municipio of my hometown burned down during the Japanese occupation and, for that reason, there is no record of my birth in the NSO. But, I assure you; I was born a live baby boy! To prove to civil authorities that I did not just fall from the sky, I presented an original birth certificate, which one of my sisters had found in her baul. Apparently my mother had obtained it when she was about to enroll me to start schooling in a public school. When it was presented to satisfy the requirement of certificate of live birth for the renewal of my authority to solemnize marriage, it was rejected as expired. Thats a new one! Apparently in this Republic your proof of live birth has a shelf life! When I told my older brother in the province about this, he told my sister to dig deeper in the baul to look for a sworn affidavit proving my birth and those of my siblings. It had been obtained in 1997. My sister found it. But it still was not good enough for the brilliant bureaucrats. And to think that I have been solemnizing marriages since 1966 with nary a complaint from anyone (except from one former student for whose ceremony I forgot to show up)! Incidentally, I am not the only one tossed about in this ridiculous boat. Even Bishop Federico Escaler is having a similar difficulty for want of proof of live birth! I am sure he did not fall from the sky either. The NSO requirement might look less ridiculous if applied to priests getting their authorization for the first time. It is absolutely insane for those who for a long time have been routinely renewing theirs. Has the law really made it so difficult for priests to have their authorization renewed? The law has not done so; but the zealous NSO has. The requirement for the grant of license to solemnize marriages is found in the Family Code. Article 7(2) of the Code enumerates those who may solemnize

marriages and includes: Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect. From this it can be seen that it is the head of the church who has been authorized to determine who among its members may solemnize marriages. What then is the role of the civil registrar? As far as the general authority of the priest is concerned, the registrars only role is to see if the person has been authorized by his religious head and thereafter to issue the license as official proof that the person has been authorized by his religious head. But as to whether the authorized person may perform a specific marriage, the registrars role is to determine if at least one of the contracting parties belongs to the church of the authorized officer. As to the general limits of the power of the solemnizing officer, the secretary of justice said in 1989, commenting on Republic Act 6514: the question of the extent of the territorial jurisdiction over which a priest or other religious personalities can perform marriage rites would depend not upon the authority granted him by the Office of the Civil Registrar General, but upon the authority conferred upon him by his church or religious organization. I have combed through the powers of the Civil Registrar in the Civil Registry Law and the responsibilities of the NSO (which implements the Civil Registry Law), and I find no delegation whatsoever of a power to require more than what the Family Code requires. The duty of the NSO is to Register solemnizing officers authorized by their religious leaders to officiate marriage in accordance with the provisions of Article 7, paragraph 2 of the Family Code. It is a ministerial task, which leaves the registrar no room for creativity. In two more days it will be 2009. Will the NSO give me enforced rest from solemnizing marriages? ==================================== Choosing Supreme Court justices By Fr. Joaquin G. Bernas, S.J. Philippine Daily Inquirer First Posted 00:15:00 11/10/2008 Filed Under: Judiciary (system of justice) MANILA, Philippines - Lawrence Tribe put it very well when he said that the answers we actually get when we ask questions [about constitutional issues] depend to some degree on who is answering them including who is sitting on the Supreme Court at the time we ask. And he quotes Justice Robert H. Jackson as saying, We are not final because we are infallible, we are infallible because we are final. But, of course, this is only until a later Court says it was not so final after all. In recent months we have had decisions coming from the Supreme Court characterized by strong prevailing opinions and equally strong dissenting opinions. You can almost predict with precision which justices will take which side. The latest one, the one on the MOA-

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

AD, could have gone either way depending on which side one swing vote would go. And people are speculating who the swing vote was and why. Those who have been following the direction of US Supreme Court decisions cannot escape noticing how sharply divided they have also been. Crucial issues about abortion, state powers, school prayer, right to bear arms, war powers and others have been decided by a 5-4 vote with the outcome depending on which side Justice Anthony Kennedy votes. Although the votes divide along liberal or conservative positions, at bottom they can really be for or against the presidents ideological inclination. Our Supreme Court has also had a history of being linked with the preferences of the incumbent president. It was most pronounced during the authoritarian years when the Supreme Court, not without good reason, was often referred to as the Marcos Court. (I remember the late Justice Cecilia Muoz Palma coming to my office at the time when she was being considered for the Supreme Court. She asked me what I thought she should say because she was being asked whether she was loyal.) Thus it was that a good number of the provisions of the 1987 Constitution were precisely introduced to reverse decisions of the Marcos years. My impression is that the influence of the president was not so pronounced during the Cory years and the Ramos years. I prefer not to say anything about the current Supreme Court. In the coming year the retirement of seven justices will create an equal number of vacancies in the Supreme Court. Will the political preferences of the president have a role in the choice of new justices? I say political preferences for good reason. Our justices have not been known for dividing along ideological lines. The division among US Supreme Court justices is usually along ideological preferences, and the search for new justices is dictated by ideological alignment for or against the president who might be liberal or conservative. Thus, Jeffrey Toobins recent fascinating book, The Nine, about the US Supreme Court, concludes: So one factorand one factor onlywill determine the future of the Supreme Court: the outcome of presidential elections. Presidents pick justices to extend their legacies. He adds: We can expect nothing more and nothing less than the Court we deserve. Toobins conclusion could just as well be descriptive of our current Supreme Court. And there is no reason to believe that the Supreme Court of the coming year will be any different. The President will have the opportunity next year to choose seven men and women of her persuasion. Yes, seven! Perhaps even eight! Under the 1935 Constitution the presidents choice of justices of the Supreme Court was limited by the need for confirmation by the Commission on Appointments. Under the 1973 Constitution there was no check on the presidents appointing authority. The 1987 Constitution did not revive the need for

confirmation by the Commission on Appointments in the belief that confirmation by the Commission on Appointments had made the process too political in a pejorative sense. Hence was created the Judicial and Bar Council to act as a check on the appointing authority. Has this been an improvement? The Judicial and Bar Council consists of the chief justice as ex officio chairman, the secretary of justice, a representative from Congress, together with a professor of law, a retired member of the Supreme Court, and a representative of the private sector as regular members. The regular members are appointed by the president with the consent of the Commission on Appointments. The President can appoint only from a list of at least three names; but she is free to reject all of them and ask for more names until the preferred name surfaces. The fruit of the pudding is in the eating. You be the judge of the justices appointed under this system. Without a doubt, the preferences of the president are a factor in the choice of the nominees produced by the Judicial and Bar Council. Of course, presidential preference is also a factor in the choice of US Supreme Court justices. But the major difference between the US process and the Philippine process of choosing is that in the United States the presidents preference is known ahead of time. It is the president who makes the initial nomination and the presidents nominee is subjected to a rigorous public hearing which can result in rejection, as in the case of Robert Bork. The expectation of a strong opposition can cause a nominee to withdraw, as happened in the recent case of Harriet Miers. Nothing like these can happen in the Judicial and Bar Council. In our system, the presidents communicated preference can be sandwiched and disguised by the JBC between two foils. Serious talk about constitutional amendment after the 2010 elections is growing in strength. If we should have an amendatory process, I am certain that one of the provisions which will be subjected to examination is the manner of choosing Supreme Court justices and other appellate justices. Until this happens, we have to make the present system work. ============================= Appendix B Brilliant, Versatile and Venerable* Brilliant, versatile and venerable. These three words sum up my overall impression of Father Joaquin G. Bernas, SJ. He is a Jesuit priest, lawyer, educator, author, journalist, constitution maker, spiritual guru, business adviser and civic leader par excellence. One who regularly reads his incisive newspaper columns would think that opinion writing is his main vocation. One who hears his inspiring homilies would easily conclude that priesthood must occupy all his attention. Indeed, he excels in everything he does. The same degree of excellence characterizes his every pursuit. Today, however, I would like to pay tribute to him as a respected gentleman of the law. I am now on my tenth year as a member of the Supreme Court and, during all that time outside the hallowed halls of our highest tribunal, no one else but he has played a more significant role in shaping constitutional law

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Xavier University College of Law Lizanilla J. Amarga (0928-507-6166)

jurisprudence. His monumental treatises on the 1973 and the 1987 Constitution are the virtual political law bibles in our country. No decision touching on the Constitution is ever complete or correct without citing Fr. Bernas. No wonder he is the favorite amicus curiae of the Court. Very rare (less than once a year on the average) are the occasions when the Tribunal calls on amici; but on almost all those occasions during my incumbency, he has been invited to enlighten us in tackling the most perplexing litigations.[1] Indeed, during my almost a decade of being a justice, no one else has been invited for as many times. I have not always agreed with him,[2] but I have always welcomed his views on all important constitutional issues facing the Court. It is easy to agree with him, because he backs up his views with disciplined wisdom, untrammeled authority and methodized logic. By the same token, it is very difficult -- even dangerous -- to disagree with him, lest in the process one is exposed as an unfettered ignoramus; or, worse, as an eclectic fool. I firmly believe that Fr. Bernas is extremely qualified to be a member of the Supreme Court. I recall that several years ago, then Chief Justice Andres R. Narvasa -- who also chaired the Judicial and Bar Council -- informally asked the justices for nominations to the vacancy in the Court then. Among the many legal eagles suggested, only one was the unanimous choice: Joaquin G. Bernas. But when informed of the justices choice, he respectfully declined. I have never known for certain why he opted out. However, I can say with personal conviction that his refusal was a testament to his integrity. He did not want to be restricted from expressing his views publicly. He preferred the role of a sage -- a guide for decision-makers in government, in business and in the personal sphere -- unbound by the distance and ethical limitations of a magistrate. And he chose to influence people on a simpler and more personal level. I am certain that his appointment to the Supreme Court would have been a shining moment in our judicial history. But like the very humble Jesus who is happiest when tending His sheep, he chose to continue dedicating his life to the Lord as a personal shepherd to His flock. * I wrote this tribute to Fr. Joaquin G. Bernas, SJ, at the request of the Ateneo Law Journal, which published it in its September 2004 edition. [1] He was an amicus curiae in People v. Malabago, 333 Phil. 20, December 2, 1996; Manila Prince Hotel v. GSIS, 335 Phil. 82, February 3, 1997; Francisco v. House of Representatives, 415 SCRA 44, November 10, 2003; Tecson v. Commission on Elections, 424 SCRA 277, March 3, 2004. His Memorandum in Manila Prince Hotel v. GSIS was also quoted in Army and Navy Club of Manila v. Court of Appeals, 337 Phil. 482, April 8, 1997. [2] For instance, in my book Leadership by Example: The Davide Standard (1999), I specifically related my disagreement with Fr. Bernas. As amicus curiae in People v. Malabago (ibid.), he opined that courts had the duty of determining the heinousness

of a crime and the compelling reason for the imposition of the death penalty in each particular case. On the other hand, I believed that the Constitution had lodged in Congress, not in the Supreme Court, the responsibility of determining the compelling reasons and the heinous crimes upon which would depend the imposition of the capital penalty. Thus, the Court merely applied the law. ======================================== ============ But foremost constitutionalist, Fr. Joaquin G. Bernas (S.J.) is firm in his belief, thus, "RA 6375 on Referendum and Initiative has been declared dead nine years ago and no later Supreme Court can resuscitate it. To do so would be to exercise a legislative power which the court does not have." Only Congress or a Constitutional Convention can do so. A People's Initiative can only make amendments, not revise the constitution in its entirety from a presidential to parliamentary form.

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