By Leila Salaverria
Philippine Daily Inquirer
First Posted 04:51:00 06/05/2009
MANILA, Philippines—There is no reason to take House Resolution No. 1109 to the Supreme Court because what the majority members in the House of Representatives essentially did on Tuesday night was to announce that they would commit a crime, constitutionalist Fr. Joaquin Bernas said Thursday.
“To my mind, the only thing they achieved was that they shot their foot. They did not do any damage yet,” Bernas said in a forum at Ateneo de Manila University.
“What they said was, ’Ladies and gentlemen, we are going to violate the Constitution.’ But they did not violate the Constitution. That is why, to my mind, there is nothing yet to bring to the Supreme Court,” he said.
And if the House tries to bypass the Senate and takes proposed constitutional amendments to the Commission on Elections for a plebiscite, it will be “a fatal mistake,” Bernas also said.
“The amendments can only take effect if approved by a plebiscite, which they have to present to the Senate,” he pointed out.
Commenting on the possible extension of the terms of elective officials, Bernas said the Supreme Court and the military would play a part in pushing it through.
“So how real is the threat of extension? It is real only if the Supreme Court will cooperate … and more so the military,” he said.
The alternative, he said, might be a people power revolt similar to what took place in 1986. He noted that after that revolt, the justices of the Supreme Court were replaced.
“Justices might think of that if ever they are tempted to cooperate in the gang rape of the Constitution,” Bernas said.
Ball in their court
Even House Minority Leader Ronaldo Zamora said there was no reason to question HR 1109 before the Supreme Court because there was no controversy yet.
“Why should I walk into that kind of trap?” he said in a phone interview. “”The ball is clearly in [the House majority’s] court, not mine. I’m not going to make it easier for them by dancing to their tune.”
Zamora said he refused to believe that the proponents of HR 1109 only wanted to trigger a ruling from the Supreme Court on the proper way to conduct a constituent assembly (Con-ass).
“Of course not,” he said. “You can’t call a Con-ass just to drink coffee … Of course, you’re going to discuss amendments.”
He also said the difference in the opinions of the proponents of HR 1109 on what to do next meant that “they were not the masterminds” of the resolution.
MANILA, Philippines—A controversial resolution was filed Wednesday in the House of Representatives calling for a Constituent Assembly (Con-ass) to amend the Constitution even without the Senate’s participation.
Critics said the measure sponsored by Speaker Prospero Nograles was a ploy to draw the opposition into challenging its constitutionality in the Supreme Court, dominated by administration-appointed justices, and urged lawmakers not to take the bait.
The resolution seeks to gather 197 signatures, the magic number its principal author, Rep. Luis Villafuerte of Camarines Sur, contends is needed to pass Charter revisions by members of the Senate and the House of Representatives voting jointly.
Majority of the senators believe that Charter revisions in the Con-ass mode require approval by three fourths of members of the two chambers voting separately. They contend that the Villafuerte resolution is unconstitutional and have announced they would challenge it in the Supreme Court.
“There is no road map to this but we have to be careful because maybe this is being done on purpose,” said Quezon Rep. Lorenzo Tañada III of the Liberal Party.
“Those who are advocating this mode is hoping that those against it would (go to court) immediately. We are all wary of this, of playing into their hands,” said Tañada.
Tañada said that most of the justices were appointed by the President, which could explain why her allies were challenging those opposing Charter change (Cha-cha) to go to court.
“I’m not saying the Supreme Court will decide in favor of them. I’m giving them the benefit of the doubt. But why are they challenging us? Maybe they know something we don’t know, we have to read between the lines,” said Tañada.
On Monday, Nograles introduced House Resolution No. 737—described as a “fourth mode” of Cha-cha calling for amendments to economic provisions in the Constitution by employing procedures in approving bills, but not by simple majority vote in each chamber but by three fourths.
The Constitution can only be changed through a people’s initiative, a constitutional convention and a constituent assembly.
Bayan Muna party-list Rep. Teodoro Casiño said that Ms Arroyo’s allies have been moving to break every rule in the House to provoke the opposition into raising the issue in the high tribunal.
The Villafuerte resolution specifies that there would be elections in 2010 and the term of the president, vice president, senators, representatives and governors would not be extended.
With the filing, Villafuerte said Nograles should first set aside resolution 737 so that the House could debate first on the mode of changing the Charter.
Nograles’ 737 resolution has been scheduled for plenary debates. Villafuerte drafted the Con-ass resolution (No. 1109), but said its main author is Nograles.
Likely court challenge
Villafuerte said Nograles’ 737 resolution was “seriously objectionable.”
“Since Speaker Nograles himself is the author also of the resolution that I drafted, I think the proper procedure would be to suspend consideration of his 737 resolution on economic provision,” Villafuerte told reporters.
However, his proposal to defer discussions on resolution 737 was rejected Wednesday night.
Villafuerte said he expected that resolution 1109 would trigger a “justiciable” controversy to trigger a Supreme Court case to decide if the two Houses should vote separately or jointly.
The Con-ass resolution was signed by 174 lawmakers. It states that the mode for Charter change should first be established before any specific proposal to amend it could be made.
Villafuerte also said in an interview that he only wants a Supreme Court case to be filed.
“Even if we get a favorable ruling, after the convening is considered constitutional, it is too late to remand or bring back the issue to Congress for the acceptance of specific amendments. At that time, that’s already the campaign period. Moreover, we still have to go through a plebiscite,” he said.
Makati Mayor Jejomar Binay, president of the United Opposition, Wednesday said administration allies must concede defeat in their move to revise the Constitution after the Supreme Court ruled to increase the number of party-list seats in Congress.
“With one decision on a case filed a few years back, the Supreme Court has ended all these foolish attempts by Ms Arroyo’s allies to extend her term through Cha-cha,” Binay said. With reports from Allison W. Lopez and Rachel Miranda
The so-called “fourth mode” for amending the Constitution is nothing more and nothing less than a trial balloon. It is one of many; and if today a “fourth” has been proposed, we can expect a fifth, a sixth—as many as it takes. All these so-called modes should all be understood as attempts to achieve—by hook or by crook and late in the game—the ultimate ambition of the administration coalition: to deprive the public of its historic right and exclusive privilege of selecting the head of state and government of our country.
The present Constitution, unlike the 1973 and 1935 Charters that were more detailed, practically states that there are two ways to propose amendments to the Constitution (because people’s initiative is basically a dead letter). The first is by means of a constituent assembly; the second is through a Constitutional Convention. In truth, the distinction is rather artificial, for it all depends on Congress to decide whether it will itself propose the amendments to the public, or pass the task to a convention—which includes the possibility (actually proposed in the 1960s and more recently by the President’s election lawyer, Romulo Macalintal) of an appointed, not elected, Constitutional Convention.
Part of the confusion stems from a residual historical memory of the Congress under the 1935 Constitution, whose provisions on amendments required the legislature to formally convene, in joint session, for the purpose of considering amendments. The present Charter makes no such explicit requirement; indeed, considering how verbose our Constitution is, its provisions are remarkably terse: any amendment to, or revision of, the Constitution, it says, can be proposed by Congress “upon a vote of three-fourths of all its Members.” Fr. Joaquin Bernas, SJ has written in this paper how the wording of the Charter was an oversight, dating back to when the Constitutional Commission thought it was going to approve a unicameral National Assembly.
But as it turned out, the commission approved a bicameral Congress, and Bernas and many others have pointed out that in terms of proposing amendments, Congress must conform to the nature of the beast—in this case, composed of two, co-equal chambers, neither of which can fulfill the functions of Congress without the other. The political problem this raises is that, for whatever reason, the House of Representatives considers the Senate unfriendly to proposals that would abolish either the presidency as a nationally-elected chief executive who is head of government, or the Senate, or both.
The 2007 elections also left the administration with absolute dominance in the House but very mixed results in the Senate; and with senators responsible to a national constituency, it is difficult for senators to abandon their traditional role as fiscalizers of the administration of the day. So the administration has been scratching its head, trying to figure out a way that will neutralize the institutional veto power of the Senate, especially in the case of amendments.
Not to mention what was, until recently, a Supreme Court with a marked disinclination to tolerate any constitutional foolishness—for it would be to the high court that the Senate would run should the House try to railroad it out of existence.
Time, however, not only heals all wounds but can sort out even the thorniest of political problems. The composition of the Supreme Court has changed drastically from its recent heyday as the bulwark against any constitutional tinkering by the administration. The opposition in the House has been starved and its membership reduced; the Senate is bogged down in presidential campaign intramurals, and will be hard pressed to put up a united front.
Notice that administration loyalists have tried to plead for a debate to take place, as if what’s going on is some sort of harmless academic discussion. It is not; what is at stake is a go-for-broke effort that involves a dangerous experiment with the law and institutions. The underlying assumption is as bold as it is cynical: that the public no longer cares enough to seriously resist an administration riding roughshod over the separation of powers. For to continue the debate now is to provide the pretext for a plebiscite in which political machines, and not public opinion, will dictate the future government of this country.
Villar: Arroyo’s sons behind Con-ass mode
MANILA, Philippines—A move in the House of Representatives to amend the Constitution and bypass the Senate in the process is only 20 votes shy of the required number, indicating a plan to set aside next year’s balloting remains alive, Sen. Manuel Villar said Tuesday.
Villar was referring to the resolution drafted by Camarines Sur Rep. Luis Villafuerte, president of President Gloria Macapagal-Arroyo’s party the Kabalikat ng Malayang Pilipino (Kampi), seeking to convene Congress into a constituent assembly (Con-ass) to amend the 1987 Constitution.
“They will continuously try and get all the numbers,” Villar said in an interview with the Philippine Daily Inquirer a day after President Arroyo signed into law a bill providing P11.3 billion for the full automation of the 2010 elections.
Villar said the drive in Congress to abolish the presidential system and give way to a parliamentary or federal system was being pushed by Ms Arroyo’s two sons in Congress—Mikey and Dato.
Asked if the President was involved, Villar said: “I don’t think she will object to it if it’s there already. Right now, she’s leaving the matter to her children. She’s still undecided.”
Mikey told the Inquirer he had not withdrawn his signature from the resolution and that the Charter change (Cha-cha) issue would come to a head “very soon.”
Villafuerte is gathering 197 signatures for the resolution before filing it. The number represents three-fourths of the combined Senate and House membership, which he said the Constitution prescribes for any Charter amendment under the Con-ass mode.
“It’s just 20 votes shy,” Villar said of the magic number.
But he pointed out that the House could not go it alone, reminding congressmen that the Constitution contemplated two-thirds of the Senate and the House, voting separately, to amend any provision of the Charter.
The Senate has objected to Con-ass, with majority of senators preferring a constitutional convention after the 2010 elections.
Villar said Ms Arroyo knew that her time in Malacañang was running out.
‘Hawks’ pulling strings
But “hawks” in the Cabinet were pulling the strings so that the administration-controlled House would finally endorse the move which will give Ms Arroyo a fresh new term—either as interim president or prime minister.
Asked if Ms Arroyo’s sons could muster enough votes in the House to force Cha-cha, Villar said it would depend on whether Ms Arroyo would “go all-out.”
Ms Arroyo has not taken a public position on the Con-ass move. Malacañang has said it was staying away from a purely legislative function.
Quezon Rep. Danilo Suarez of Kampi said that the House should be able to tackle the Con-ass resolution upon the resumption of its session on April 13 following the month-long Lenten break.
“We will not be able to come to a decision on the Con-ass if we do not debate it during the plenary. Until then, the issue will continue to hang over our heads,” Suarez said in a press conference.
Senate to SC
Mikey said that there was no reason to declare the Con-ass “dead” until he and the rest of the 180 congressmen who had signed the Con-ass resolution had taken their names off the list of endorsers.
The House interpretation of the majority vote creating a Con-ass is expected to provoke the Senate into seeking a ruling from the Supreme Court.
Should the high court uphold its position, the House will proceed with its move to change the Charter that critics fear could include lifting of term limits.
On Oct. 25, 2006, the Supreme Court dismissed by an 8-7 vote a petition for a “people’s initiative” to amend the Constitution and adopt the parliamentary system, saying it would not allow itself to be a party to a “grand deception.”
The high tribunal then said that it would not allow the Constitution to be “set adrift … in uncharted waters, to be tossed and turned by every dominant political group of the day.”
With vacancies coming up in the Supreme Court that Ms Arroyo would fill, there are fears that an administration-dominated tribunal could rule in her favor if the Con-ass voting question comes up.
Nograles on way out?
Efforts to revive the Con-ass resolution have spurred rumors that Speaker Prospero Nograles, who has been criticized for his ineffective steering of Charter change, was on his way out.
Leyte Rep. Martin Romualdez, one of the major sponsors of the resolution, is reported to be meeting with Pangasinan Rep. Jose de Venecia Jr. and offering him back his old post as Speaker.
Although De Venecia had a falling out with the President after his son exposed the scuttled NBN-ZTE deal, the administration apparently still considers him the best man to rally support in Congress for Charter change.
Mikey has denied leading efforts to oust Nograles or approaching De Venecia. But he said Nograles should take rumors of his ouster as par for the course.
“The Speaker of the House is the most vulnerable position in Congress because he can be changed anytime by the members once they lose confidence in him, he should know that,” Mikey said.
Villar called on Ms Arroyo to once and for all stop Charter change and spend her remaining months in office working for her legacy—“pull us out of the financial crisis and peaceful transition of power in 2010.”
“That’s the best legacy she can leave. That’s a one-two punch,” he said.
Villar said Ms Arroyo has two other options, besides Charter change: “Declare martial law—I don’t think it’s likely, but there’s still a chance it will be resorted to—and fund a winnable presidential candidate, or she will not support anyone at all.”
He said Ms Arroyo’s support for a friendly successor in Malacañang could be “hidden or declared out in the open.”
Besides the Con-ass mode, another route was proposed by Nograles under House Resolution No. 737.
In the resolution, he proposes to amend the Constitution’s economic provisions to relax foreign ownership of domestic businesses, including those that the Charter limits to Filipino citizens such as media entities.
Nograles said his resolution would take the legislative process route, which means that after the House approved it, the proposed measure would be sent to the Senate for its own action or concurrence.
The Nograles resolution is up for plenary debate when Congress resumes session next month.
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 self-executing 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.
“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 God’s 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.