How to read Con Com Record W

When there is debate about a constitutional provision and what the authors of the document meant, people normally would go to the Record of the Constitutional Commission of 1986. This is a five volume work where everything said during the deliberations are recorded word for word.

When reading it, it is good to remember that it is a work in progress. Thus, in the early stages of the debate, one will find statements in support or in opposition to any proposal. Up to the day votes are cast on the proposal, conflicting statements can still be found. In decipering wha the Commissioners approved, one must look at the final votes to see which of the conflicting positions won the support of the Commission.

The current debate on whether Estrada can run again is typical. You will find writers quoting opposing positions. You must ask when those positions were expressed and which of them won the support of the majority. The winning position expresses the intent of the Commission as a body.

Presidential Reelection?

Presidential Reelection?

May 23, '09 8:42 PM for everyone

I have often been asked whether a person who has once been elected President -- Aquino, Ramos, Estrada, Arroyo -- may be re-elected to the same office. Rather than answer the question, let me just reproduce what I see reflected in the deliberations of the 1986 Constitutional Commission. I leave each of my readers to come to his or her own conclusion. And of course, the final answer will come from the Supreme Court.

The subject was debated upon on July 25, 1986 as part of the consideration of the term of various elective officers. The Commission was presented with three possible options regarding the President’s term: (1) no immediate reelection; (2) no re-election; (3) unlimited number of reelections.

“No immediate reelection” meant the possibility of reelection after some interruption. Unlimited number of reelections meant just that. But what did “no re-election” mean? The following exchange took place:

BISHOP BACANI: I would like a clarification first. Does “No reelection” mean the President can never be reelected?

THE PRESIDENT [Cecilia Muñoz Palma]: I believe the motion is just for non-reelection, is it not?

MR. ROMULO: No reelection.

THE PRESIDENT: But it does not say forever.

MR. ROMULO: The meaning of no reelection is that the person can never run again – absolute ban.

BISHOP BACANI: Therefore, if she ceases from office she cannot run even after six years.

THE PRESIDENT: Even after?

BISHOP BACANI: That is the understanding. Thank you.

When the choices were finally put to a vote, 32 voted in favor of “no immediate reelection” and only 5 against.

Before the day’s session ended, however, Commissioner Ambrosio Padilla moved for a reconsideration of the decision. His motion to reconsider was approved 22 to 5.

In the ensuing debate, Commissioner Padilla was the main proponent of a perpetual ban on reelection while Commissioner Francisco “Soc” Rodrigo sought the retention of the original vote for “no immediate reelection.”

Before a vote was taken on the subject, the presiding officer made sure that the meaning of Padilla’s proposal was clear to all:

THE PRESIDENT: So, the effect of this is, the President will serve for six years without reelection. That carries a total ban on his being elected again at any future time to the position of President.

MR. PADILLA: That is a correct. It is a continuing prohibition for reelection.

Before the Commissioners cast their ballot, the President reiterated her clarification:

THE PRESIDENT: The vote will be “yes” if one is in favor of Commissioner Padilla’s proposal or “no” if one is against.

Forty-two (42) Commissioners cast their ballot. After the ballots were counted, the President made the announcement:

THE PRESIDENT: The results show 26 votes in favor, 15 against and 1 abstention; the proposal that the President will serve a six-year term without reelection at any time is approved.

That was not yet the end, however. Commissioner Serafin Guingona, who was the only one who had abstained in the voting on Padilla’s proposal, did not think that the matter was over.

MR. GUINGONA: I beg the Chair’s indulgence to present my proposal.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: My proposal is that the President shall be elected for a term of six years and may run for one reelection immediately after his term, provided that no President may serve for more than 12 consecutive years.

In effect, Guingona was asking for a reconsideration of the vote favoring Padilla’s proposal for a total ban. The body considered it a reconsideration and voted 31 against and 10 in favor.

The final action on the presidency, however, did not come until the body deliberated on the draft article on the executive department. The draft evidently had been prepared before the Commission could finish its consideration of the term of office of various national elective officials. Hence the draft still contained the following provision on the President: “He shall be disqualified from immediate reelection.”

On July 29, 1986, Commissioner Lorenzo Sumulong, in his sponsorship speech on the draft, pointed out that the word “immediate” should no longer be there. On July 30, during the period of amendments, Commissioner Hilario Davide, Jr proposed what is now the final version: “The President shall not be eligible for any reelection.” He explained his amendment thus: “The purpose of this amendment is to be consistent with what the body had approved in the matter of the term of the President.”

Before the final approval of the Davide amendment there ensued the following exchange:

MR. [FLORENZ] REGALADO: May we inquire from Commissioner Davide why he proposes that the President shall be completely ineligible for any future elective office lower than the presidency? . . . Would it not be possible that perhaps a former President may wish to share his talents and experience with the people by running for a lower position like that of a Senator?

MR. DAVIDE: He can. He is only banned from reelection, meaning to the same office, but not from running for any office. So the wording is very clear: “THE PRESIDENT shall be INELIGIBLE FOR ANY reelection.”

I am sure that by now Ambassador Davide has already heard that not a few refuse to see the matter as very clear. As for me, it is at least very clear that a former President, male or female, is qualified to run for Congressman, Senator or Vice-President!

But, wait! Is there an exception from the total ban in favor of an elected President who, for whatever reason, may have served for less than a full tenure? All I know is that no such exception was discussed or even proposed. There was no discussion whatsoever of length of tenure, but only of length of term.

Presidential Reelection?

May 23, '09 8:42 PM for everyone

I have often been asked whether a person who has once been elected President -- Aquino, Ramos, Estrada, Arroyo -- may be re-elected to the same office. Rather than answer the question, let me just reproduce what I see reflected in the deliberations of the 1986 Constitutional Commission. I leave each of my readers to come to his or her own conclusion. And of course, the final answer will come from the Supreme Court.

The subject was debated upon on July 25, 1986 as part of the consideration of the term of various elective officers. The Commission was presented with three possible options regarding the President’s term: (1) no immediate reelection; (2) no re-election; (3) unlimited number of reelections.

“No immediate reelection” meant the possibility of reelection after some interruption. Unlimited number of reelections meant just that. But what did “no re-election” mean? The following exchange took place:

BISHOP BACANI: I would like a clarification first. Does “No reelection” mean the President can never be reelected?

THE PRESIDENT [Cecilia Muñoz Palma]: I believe the motion is just for non-reelection, is it not?

MR. ROMULO: No reelection.

THE PRESIDENT: But it does not say forever.

MR. ROMULO: The meaning of no reelection is that the person can never run again – absolute ban.

BISHOP BACANI: Therefore, if she ceases from office she cannot run even after six years.

THE PRESIDENT: Even after?

BISHOP BACANI: That is the understanding. Thank you.

When the choices were finally put to a vote, 32 voted in favor of “no immediate reelection” and only 5 against.

Before the day’s session ended, however, Commissioner Ambrosio Padilla moved for a reconsideration of the decision. His motion to reconsider was approved 22 to 5.

In the ensuing debate, Commissioner Padilla was the main proponent of a perpetual ban on reelection while Commissioner Francisco “Soc” Rodrigo sought the retention of the original vote for “no immediate reelection.”

Before a vote was taken on the subject, the presiding officer made sure that the meaning of Padilla’s proposal was clear to all:

THE PRESIDENT: So, the effect of this is, the President will serve for six years without reelection. That carries a total ban on his being elected again at any future time to the position of President.

MR. PADILLA: That is a correct. It is a continuing prohibition for reelection.

Before the Commissioners cast their ballot, the President reiterated her clarification:

THE PRESIDENT: The vote will be “yes” if one is in favor of Commissioner Padilla’s proposal or “no” if one is against.

Forty-two (42) Commissioners cast their ballot. After the ballots were counted, the President made the announcement:

THE PRESIDENT: The results show 26 votes in favor, 15 against and 1 abstention; the proposal that the President will serve a six-year term without reelection at any time is approved.

That was not yet the end, however. Commissioner Serafin Guingona, who was the only one who had abstained in the voting on Padilla’s proposal, did not think that the matter was over.

MR. GUINGONA: I beg the Chair’s indulgence to present my proposal.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: My proposal is that the President shall be elected for a term of six years and may run for one reelection immediately after his term, provided that no President may serve for more than 12 consecutive years.

In effect, Guingona was asking for a reconsideration of the vote favoring Padilla’s proposal for a total ban. The body considered it a reconsideration and voted 31 against and 10 in favor.

The final action on the presidency, however, did not come until the body deliberated on the draft article on the executive department. The draft evidently had been prepared before the Commission could finish its consideration of the term of office of various national elective officials. Hence the draft still contained the following provision on the President: “He shall be disqualified from immediate reelection.”

On July 29, 1986, Commissioner Lorenzo Sumulong, in his sponsorship speech on the draft, pointed out that the word “immediate” should no longer be there. On July 30, during the period of amendments, Commissioner Hilario Davide, Jr proposed what is now the final version: “The President shall not be eligible for any reelection.” He explained his amendment thus: “The purpose of this amendment is to be consistent with what the body had approved in the matter of the term of the President.”

Before the final approval of the Davide amendment there ensued the following exchange:

MR. [FLORENZ] REGALADO: May we inquire from Commissioner Davide why he proposes that the President shall be completely ineligible for any future elective office lower than the presidency? . . . Would it not be possible that perhaps a former President may wish to share his talents and experience with the people by running for a lower position like that of a Senator?

MR. DAVIDE: He can. He is only banned from reelection, meaning to the same office, but not from running for any office. So the wording is very clear: “THE PRESIDENT shall be INELIGIBLE FOR ANY reelection.”

I am sure that by now Ambassador Davide has already heard that not a few refuse to see the matter as very clear. As for me, it is at least very clear that a former President, male or female, is qualified to run for Congressman, Senator or Vice-President!

But, wait! Is there an exception from the total ban in favor of an elected President who, for whatever reason, may have served for less than a full tenure? All I know is that no such exception was discussed or even proposed. There was no discussion whatsoever of length of tenure, but only of length of term.

St. Ignatius and Law Schools: Homily

As we celebrate the feast of St. Ignatius with this Mass, I thought that I might begin by asking what relevance St. Ignatius has for a Law School. I ask this question because, when St. Ignatius first wrote the Constitutions of the Society of Jesus, which is the fundamental law of the Jesuit Order, he said that Jesuits should stay away from running Law schools because they are far from the goals of the Jesuit Order. And, he also said that if Jesuit schools must teach law, it should not be taught by Jesuits. Which could leave me jobless.

St. Ignatius, however, soon enough realized the value of law schools. Thus, even before he died, law was being taught in some Jesuit schools, but not yet by Jesuits. But his successors were wiser still and now Jesuits teach law and there are any number of Jesuit law schools, an outstanding example being the one in Rockwell! But then we must ask: What amkes a Law School Jesuit?

We say sometimes that Jesuit schools are distinguished by academic excellence and that therefore what distinguishes Jesuit law schools is academic excellence. But there is nothing originally or exclusively Jesuit about academic excellence. The academic excellence of Jesuit schools comes from the Ratio Studiorum, which is the bible of Jesuit education. But the Ratio Studiorum is not original. It is characterized by borrowings. Eloquentia, for instance, has been borrowed from the Roman rhetorician Quintilian. The method of our schools we borrowed from the medieval Univesity of Paris. And when we want to put up an excellent law school, what do we do? We borrow from Harvard. Thus, academic excellence is not the distinguishing mark because it also belongs to other schools. What then should make Jesuit schools Jesuit?

There are two words in the phrase "Jesuit school,”the noun ”school” and the adjective “Jesuit.” Both the noun and the adjective are important. When we are serious about the noun ”school,” then we get academic excellence. But that is just half of the phrase. There is also the adjective ”Jesuit.” What does the adjective add to the enterprise when we are faithful to it. What it should add is what I would call “Ignatian spirituality.”

By ”spiritualityˆ” I do not mean external piety such as novenas, lighted candles and pilgrimages. By spirituality I mean how one relates with God, how one relates with men and women, and how one relates with wealth and power. In this sense, everyone has a spirituality. And the question is whether in your spirituality you aim for excellence in much the same way that you aim for academic excellence.

In your relationship with God, do you consider him as the be all and end all of your life. Or, as Our Lord says, do you love him with all your mind, and all your heart, and all your soul?

In your relationship with people, do you distinguish between privileged and underprivileged, between fraternity brother or sorority sister on the one hand and all so called barbarians. Jesus said you should love your neighbor as yourself, even barbarians, and even members of other fraternities.

How do you relate with wealth and power now? And how will you relate with wealth and power in the future? A career in law throws a person into a world of wealth and power. Look at our graduates who now occupy positions of power in the private and public sectors. How does Ignatian spirituality ask you to relate with wealth and with power?

Ignatian spirituality is optimistic. It tells you that wealth and power are good. You do not despise them. But Ignatian spirituality is deeply aware that wealth and power are gifts of a loving God and are given for a purpose – ad majorem Dei gloriam. This is where we get what we often hear – women and men for others.

Wealth and power are two-edged swords. They can uplift or they can crush, they can serve or they can enslave. Ignatian spirituality tells us that we must always choose that for which wealth and power have been given by a loving God – to uplift, to serve, to liberate. This is excellence in spirituality. Ignatian spirituality is a spirituality of choice.

I guess I can sum it up by asking what all these should mean for a student or a product of a Jesuit law school. It should, of course, mean excellence in the law, But it should also mean realizing that lawyering is not just a means of livelihood but a vocation. The word vocation can sometimes scare us because it is closely linked with being a monk or a nun which for obvious reasons is not for all. But having a vocation is larger than monkhood or sisterhood. It simply means that your are created for a purpose and that you are called to fulfill that purpose. And for us the purpose is excellence in legal service and excellence in being men and women for God and for others.

Today we pray to St. Ignatius to help us fulfill the vocation to which we have been called. We have the ideal; let us make it a reality

Con Con: A Step at a Time

How does a Constitutional Convention come into existence? And how does it get organized?

Let us begin with the 1935 Constitution. It said: “The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose”

It was clear under this provision that the first step to take, if a constitutional convention was desired, was to vote whether to have a constitutional convention or not and when. This decision could only be made “by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately.” After this initial decision was made, Congress, as an ordinary legislative body, could then go about deciding the number, the qualifications, and the manner of choosing the delegates to the Convention. This is how it was done in preparation for the 1971-1972 Constitutional Convention.

The 1973 Constitution also had its version: “The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit the question of calling such a convention to the electorate in an election.” We had no occasion to use the provision.

The current Constitution now says: “The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.”

The current provision is both clear and unclear.

It is clear that to call a constitutional convention a vote of two-thirds of all the members of Congress is needed.

But it is still unclear as to whether the two Houses should vote in joint session and jointly or separately. In other words, the problems that have plagued the manner of proposing amendments are also problems regarding calling a constitutional convention.

Reports have it that a committee in the House of Representatives is pushing for election of delegates to a constitutional convention to coincide with the national elections in May 2010. What is needed to put such a proposal into action?

The first step would normally be four both Houses to pass a resolution calling for a constitution convention. However, theoretically, the decision to call a constitutional convention and the decision as to the time when and the number, qualifications, and the manner of choosing the delegates can be done in one legislative act. Is this what the House Committee resolution attempting to do? But to attempt it this way would be to invite trouble because the legislative act would need the vote of two-thirds of all the members of Congress. Two-thirds vote would be needed because the act embodies the initial call to a convention.

The more efficient way would be to first approve a resolution calling for a constitutional convention and next, by a separate act, decide on the details about the constitutional convention. This separate act would require merely ordinary legislation. As I said above, this is how it was done in preparation for the 1971-1972 Constitutional Convention.

The question now, however, is not just whether it would be wise to mix the selection of delegates to the constitutional convention with the election of national and local officials in May 2010. The prior question is whether the current Congress will be able to approve a resolution calling for a constitutional convention and thereafter pass a law setting down the needed mechanics for organizing a constitutional convention before the May 2010 elections.

I agree with those who say that this is no longer possible. To try to achieve this, or even just to approve a bare call of a constitutional convention, will mean facing the same obstacles as the obstacles to proposing amendments through a constituent assembly, or even more obstacles. Until now there is no firm decision as to whether Congress, when performing constituent acts, must be in joint session. Neither is there a decision on whether they must vote jointly or may vote separately.

I therefore suggest that Congress abandon this project now and focus instead on more doable matters which some say are urgent. For instance, what?

* * * * * *

I suggest that a law be passed soon setting down who should act as President in the event that by June 30, 2010, neither a President, Vice-President, Senate President, or Speaker has been chosen or has qualified. The Constitution has been asking for such a law since 1987.

If Congress is not inclined to pass such a law, I suggest another way of meeting a worst case scenario by June 30, 2010. I suggest that, before the end of the current term, the Senate elect a Senate President from among the senators who will be staying on after the next elections. Such Senate President will then be able to act as President should elections fail. It is important to make this choice before the end of the current term, while the Senate has a full complement, in order to avoid the controversy of whether the remaining twelve senators would constitute a quorum to elect a Senate President. We should avoid a repetition of the controversy in Avelino v. Cuenco when the Court was confronted with the problem of whether less than thirteen senators could elect a Senate President.

31 August 2009

Reapportionment in Malolos and Elsewhere

Since the 2010 elections are coming, it is understandable that politicians are struggling to position themselves as favorably for themselves as possible. One method being used is the creation of representative districts. I wish that some of the controversial cases on this subject, for instance, those in Malolos and in Camarines Sur, would reach the Supreme Court for final resolution. What are the constitutional principles at stake?

First, a representative district must consist of “contiguous, compact, and adjacent territory.” But this is not an absolute rule because this is required only “as far as practicable.”

Second, when a province is created, a new representative district is automatically created no matter how small the population is.

Third, when a city is created or its population increases, it is entitled to form a representative district provided that the city has a population of at least 250,000. For purposes of determining the population size, the latest official census report is used, even if, as the Court said in 1961, the report is not yet final. This is important for what is happening in Malolos.

More problematic is the question of creation of representative districts independently of the creation of a province or city. This is happening, for instance, in Camarines Sur where a President's son is involved.

What makes this problematic is that the Constitution does not put down a minimum number. But the Constitution imposes a fourth principle based not on numbers but on proportionality. The rule says that legislative districts are "apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of uniform and progressive ratio."

What this fourth principle means is that uniformity should be maintained among the provinces such that a province with a large population should have proportionally more districts than smaller provinces. Corollarily the various districts should be of approximately the same population size so that the vote of every person will be of equal weight. The basis of this rule is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man. In a representative system, this equality is ensured by requiring that the district representatives should represent as nearly as possible an equal number of constituents.

The constitutional provision was used in a 1961.. The Court said that Republic Act 3040 violated the Constitution "because (a) it gave Cebu seven members while Rizal with a larger number of inhabitants got four only; (b) it gave to Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,601) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has three whereas Isabela, Laguna and Cagayan with more inhabitants have two each. And then Capiz, La Union and Ilocos Norte got 2 each whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only whereas Iloilo with less inhabitants (966,145) was given five."

The Court concluded: "For all the foregoing we hereby reiterate our Resolution declaring Republic Act 3040 infringed the provisions of the Constitution and is therefore void."

What should be noticed in all of this is that, in determining the validity of the apportionment, the Supreme Court did not look only at the situation in once province. The approach was comparative. The intent of the Court was to preserve proportionality not just in one province but in the entire country. Republicanism, after all, is for the entire country.

Moreover, if equality of voting power of citizens is to be preserved, the individual districts themselves must be of approximately the same size in population. Thus, it is not enough to look into the size of districts in one province; additionally the districts in one province must also be compared with those of other provinces. For instance, in the case of Camarines Sur, what should be looked into is not just the size of the district purportedly intended for Dato Arroyo but also how it compares with other districts around the country.

This leads to a fifth principle: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.” This is in recognition of the fact that over the years the size of representative districts change because of births and population movements. But this periodic reapportionment commanded by the Constitution must be done nationwide and not piecemeal, as is happening now. Piecemeal reapportionment affecting only one province will necessary result in unconstitutional disproportion with provinces whose districts are not readjusted.

Finally, it should be obvious that the reapportionment done in one province should be the concern of all citizens because equality of representation is the concern of all. What the Court said in 1961 remains true: "Needless to say, equality of representation in the legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the government."

24 August 2009

Reapportionment in Malolos and Elsewhere

Since the 2010 elections are coming, it is understandable that politicians are struggling to position themselves as favorably for themselves as possible. One method being used is the creation of representative districts. I wish that some of the controversial cases on this subject, for instance, those in Malolos and in Camarines Sur, would reach the Supreme Court for final resolution. What are the constitutional principles at stake?

First, a representative district must consist of “contiguous, compact, and adjacent territory.” But this is not an absolute rule because this is required only “as far as practicable.”

Second, when a province is created, a new representative district is automatically created no matter how small the population is.

Third, when a city is created or its population increases, it is entitled to form a representativ district provided that the city has a population of at least 250,000. For purposes of determining the population size, the latest official census report is used even if, as the Court said in 1961, the report is not yet final. This is important for what is happening in Malolos, Bulacan.

More problematic is the question of creation of representative districts independently of the creation of a province or city. This is happening in Camarines Sur where a President's son is involved.

What makes this problematic is that the Constitution does not put down a minimum number. The Constitution, however, puts down a fourth principle based not on numbers but on proportionality. The rule says that legislative districts are "apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of uniform and progressive ratio."

What this fourth principle means is that uniformity should be maintained among the provinces such that a province with a large population should have proportionally more districts than smaller provinces and that corollarily the various districts should be of approximately the same population size. The basis of this rule is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man. In a representative system, this equality is ensured by requiring that the district representatives should represent as nearly as possible an equal number of constituents.

This principle is illustrated in a 1961 reapportionment declared invalid by the Supreme Court. The Court said that Republic Act 3040 violated the Constitution "because (a) it gave Cebu seven members while Rizal with a larger number of inhabitants got four only; (b) it gave to Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,601) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has three whereas Isabela, Laguna and Cagayan with more inhabitants have two each. And then Capiz, La Union and Ilocos Norte got 2 each whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only whereas Iloilo with less inhabitants (966,145) was given five."

The Court concluded: "For all the foregoing we hereby reiterate our Resolution declaring Republic Act 3040 infringed the provisions of the Constitution and is therefore void."

What should be noticed in all of this is that the disproportion is not just in the number of districts each province has but also necessarily in the number of inhabitants the variuos districts have. Thus, in determining constitutionality, it is not enough to look into the size of districts in one province; additionally the districts in one province must also be compared with those of other provinces. For instance, in the case of Camarines Sur, what should be looked into is not just the disproportion between the districts of Camarines Sur but also the disproportion in Camarines Sur with other districts in other provinces.

This leads to a fifth principle: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section [Article VI, Section 5]” This is in recognition of the fact that over the years the size of representative districts change because of births and population movements. But this periodic reapportionment commanded by the Constitution must be done nationwide and not piecemeal, as is happening now. Piecemeal reapportionment affecting only one province will necessary result in unconstitutional disproportion with provinces whose districts are not readjusted.

Finally, it might be asked whether reapportionment is a "political question" over which the Court has no jurisdiction. The Court's answer is clear: "Needless to say, equality of representation in the legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the government."

Moreover, it is also obvious that the reapportionment done in one province should be the concern of all citizens because equality of representation is the concern of all.

24 August 2009

Commander in Chief Powers

A recent piece of former Ambassador del Rosario (Inquirer, August 13), reports his actual experience of the current administration contemplating emergency rule. Ambassador del Rosario's account is confirmed by former Speaker de Venecia and former Defense Secretary Avelino Cruz. Although, expectedly, these are denied by Malacañang webmasters, they nevertheless invite reflection on the current Commander-in-Chief powers under the Constitution.

I say “current powers” because theoretically they are a far cry from what we saw under the 1935 Constitution as practiced in the previous regime. And I say theoretically because to date that is what they are, written law but untested. We do not know for sure what a Chief Executive bent on flexing his or her muscle will dare do under them.

As under the 1935 Constitution the President is given by the current Constitution three specific Commander-in-Chief powers: (1) to call on the Armed Forces to prevent or suppress lawless violence, invasion or rebellion; (2) to suspend the privilege of the writ of habeas corpus; and (3) to impose martial law on the entire Philippines or any part thereof.

The first of these – calling on the Armed Forces – is the most easily available but also the mildest.

It is the most easily available because the President is given wide discretion when to use it. The Constitution simply says that she can use this power when it “becomes necessary” to use it. For all practical purposes she alone is the judge as to whether using the power is “necessary.” As Our Court has said, “When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own.” True, the Court can look into whether there has been grave abuse of discretion; but the Court does not have the capacity to contradict the findings of the vast intelligence network of the President.

It is the mildest because generally it merely empowers her to call on the Armed Forces to come to the assistance of law enforcement agencies when these are seen to need help in preventing or suppressing public disorder. Presidents under the 1987 Constitution have used this power more than once and the Supreme Court has been explicit in declaring what it does not include.

In substance, it does not give her additional powers like the second and third Commander in Chief powers do. She merely signals that she will exercise her normal executive powers with more vigor in the enforcement of law. Calling on the Armed Forces does not authorize her to cross normal constitutional demarcation lines. Admittedly, however, the danger of abuse is significantly enhanced, as shown by the arrest of Randy David and the raid of a newspaper when a state of emergency was declared by President arroyo..

Resort to suspension of the privilege of the writ or the imposition of martial law, however, is more difficult. It can be done only on the basis of demanding factual requirements. They can be resorted to only in case of actual invasion or rebellion when public safety requires it. The Supreme Court may review the existence of these factual basis upon the instance of any citizen. Moreover, the shelf-life of these two extraordinary measures is limited to sixty days, unless shortened by Congress or extended by Congress by a joint majority vote of Congress in joint session.

I wrote about the other limitations on martial law in my column of last July 20, 2009.

As to the suspension of the privilege, the 1987 Constitution has also provided for other limitations. A suspension of the privilege of the writ does not apply to all kinds of offenders; it can cover only persons charged in court for rebellion or offenses inherent in or directly connected with invasion. Moreover, if a person is arrested or detained but is not judicially charged within three days, he shall be released.

Neither martial law nor suspension of the privilege of the writ has been resorted to by any of the four Presidents under the 1987 Constitution. If the President now or any President in the future should resort to them, what assurance can we have that the new safeguards carefully worked out by the 1986 Constitutional Commission will be able to protect democracy and the rights of the people?

Under 1972 declaration of martial law Congress was dissolved, the Supreme Court waffled, and the Armed Forces aligned with the President and abandoned the Constitution. Can we say that these will not happen again?

If the current Constitution is to achieve its goal, three institutions are needed. These are (1) a Congress so committed to democracy that it will not hesitate to go against a martial law declaration by the President or a suspension of the privilege of the writ; (2) an independent Supreme Court committed to uphold the rights guaranteed by the Constitution; (3) an Armed Force insulated from politics and committed to uphold and defend the Constitution.

I might also add, on the basis of Ambassador del Rosario's article, lack lack of support by the United States will be a powerful deterrent.

Email: joaquin.bernas@gmail.com

17 August 2009

Commander in Chief Powers

A recent piece of former Ambassador del Rosario (Inquirer, August 13), reports his actual experience of the current administration contemplating emergency rule. Ambassador del Rosario's account is confirmed by former Speaker de Venecia and former Defense Secretary Avelino Cruz. Although, expectedly, these are denied by Malacañang webmasters, they nevertheless invite reflection on the current Commander-in-Chief powers under the Constitution.

I say “current powers” because theoretically they are a far cry from what we saw under the 1935 Constitution as practiced in the previous regime. And I say theoretically because to date that is what they are, written law but untested. We do not know for sure what a Chief Executive bent on flexing his or her muscle will dare do under them.

As under the 1935 Constitution the President is given by the current Constitution three specific Commander-in-Chief powers: (1) to call on the Armed Forces to prevent or suppress lawless violence, invasion or rebellion; (2) to suspend the privilege of the writ of habeas corpus; and (3) to impose martial law on the entire Philippines or any part thereof.

The first of these – calling on the Armed Forces – is the most easily available but also the mildest.

It is the most easily available because the President is given wide discretion when to use it. The Constitution simply says that she can use this power when it “becomes necessary” to use it. For all practical purposes she alone is the judge as to whether using the power is “necessary.” As Our Court has said, “When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or substitute its own.” True, the Court can look into whether there has been grave abuse of discretion; but the Court does not have the capacity to contradict the findings of the vast intelligence network of the President.

It is the mildest because generally it merely empowers her to call on the Armed Forces to come to the assistance of law enforcement agencies when these are seen to need help in preventing or suppressing public disorder. Presidents under the 1987 Constitution have used this power more than once and the Supreme Court has been explicit in declaring what it does not include.

In substance, it does not give her additional powers like the second and third Commander in Chief powers do. She merely signals that she will exercise her normal executive powers with more vigor in the enforcement of law. Calling on the Armed Forces does not authorize her to cross normal constitutional demarcation lines. Admittedly, however, the danger of abuse is significantly enhanced, as shown by the arrest of Randy David and the raid of a newspaper when a state of emergency was declared by President arroyo..

Resort to suspension of the privilege of the writ or the imposition of martial law, however, is more difficult. It can be done only on the basis of demanding factual requirements. They can be resorted to only in case of actual invasion or rebellion when public safety requires it. The Supreme Court may review the existence of these factual basis upon the instance of any citizen. Moreover, the shelf-life of these two extraordinary measures is limited to sixty days, unless shortened by Congress or extended by Congress by a joint majority vote of Congress in joint session.

I wrote about the other limitations on martial law in my column of last July 20, 2009.

As to the suspension of the privilege, the 1987 Constitution has also provided for other limitations. A suspension of the privilege of the writ does not apply to all kinds of offenders; it can cover only persons charged in court for rebellion or offenses inherent in or directly connected with invasion. Moreover, if a person is arrested or detained but is not judicially charged within three days, he shall be released.

Neither martial law nor suspension of the privilege of the writ has been resorted to by any of the four Presidents under the 1987 Constitution. If the President now or any President in the future should resort to them, what assurance can we have that the new safeguards carefully worked out by the 1986 Constitutional Commission will be able to protect democracy and the rights of the people?

Under 1972 declaration of martial law Congress was dissolved, the Supreme Court waffled, and the Armed Forces aligned with the President and abandoned the Constitution. Can we say that these will not happen again?

If the current Constitution is to achieve its goal, three institutions are needed. These are (1) a Congress so committed to democracy that it will not hesitate to go against a martial law declaration by the President or a suspension of the privilege of the writ; (2) an independent Supreme Court committed to uphold the rights guaranteed by the Constitution; (3) an Armed Force insulated from politics and committed to uphold and defend the Constitution.

I might also add, on the basis of Ambassador del Rosario's article, lack lack of support by the United States will be a powerful deterrent.

Email: joaquin.bernas@gmail.com

17 August 2009

A Transition Government?

It is gossip material; it is also media material. Reportedly the person who has been fronting for it is National Secretary Adviser Norberto Gonzales. But, of course, Malacañang says that Gonzales is on his own! Curiously, Gonzales is still in good standing with the current government.

What is being advocated is an extra-constitutional government to replace the current government. What is purportedly the rationale behind it is the conviction that “The forthcoming election will not be sufficient to satisfy the nation’s cry for fundamental change. Its aftermath could easily lead to violent confrontation and further fragmentation of our society. As it appears, the election of 2010 will simply be a continuation, in fact a perpetuation, of the kind of politics our people abhor.”

In plain language, what is desired is revolution. But, as I have always maintained, a revolution becomes legitimate if it succeeds. If it fails, the revolutionaries go to jail. Remember the Oakwood mutiny and the Peninsula Hotel caper.

But what of the EDSA Revolution of 1986? A good question that, because, as a matter of fact, the current advocates of a transition government purport to model their movement after the Revolution of 1986.

Their "strategy" papers point out that the EDSA Revolt consisted of three steps: (1) the wresting of power from the Marcos government; (2) the establishment of a transitional government; (3) the establishment of a new constitutional government. Hence, the steps they hope to take are (1) the takeover of power, (2) the setting up of a transition government, [under whose leadership?], and (3) the establishment of a new constitutional government.

The first thing, perhaps, that should be noted about the EDSA Revolt is that it wrested power and managed to keep that power. Hence, the leaders did not go to jail; they assumed power in the new government. Last week the people gave the highest honor to the leader of that Revolt.

Where does the current movement stand now and how does it hope to emulate the first stage of the EDSA model?

The “strategy” papers circulating indicate that the advocates are at a recruitment stage preparatory to the first step, that is, the wresting of power from the current government. To this end, various elements are being wooed to support the enterprise. A select group of bishops have been approached and the reactions, I am told, have been mixed. Chief Justice Reynato Puno reportedly is being tempted but there has been no indication that the Chief Justice is prepared to junk the Constitution. I do not know who else are being lured.

There are three important elements to remember about the EDSA Revolt.

First, it arose in the context of a dictatorial martial law regime where power was concentrated in one man. The legislature was merely a rubberstamp. The revolt followed a number of nationally disturbing events, among them being the assassination of Ninoy Aquino and of Evelio Javier, reported violations of human rights and serious efforts to boycott elections.

Second, the revolt was immediately triggered by the walk-out of computer operators who were manning the electoral count at the Cultural Center. This was spontaneously followed by the massing of citizens in front of Camps Aguinaldo and Crame.

Third and most importantly, the revolt succeeded because the military abandoned President Marcos. (For that matter, it will be recalled that the overthrow of President Estrada became possible only when he was abandoned by military and police.)

Several questions may then be asked about the current movement for a transition government. Since they purportedly are modeling their movement after the EDSA event, how do they hope to wrest power from the current government? Do they have the pulling power and motivating argument to be able to attract mass following? With what sort of event do they hope to trigger the revolt? Finally, how do they see the role of the military both before and after their intended coup?

As to the possible role of the military, it will be good if we can hear from the Secretary of National Defense, from the Armed Forces and from the Police.

But what will happen should the movement succeed with the support of the military? An interesting question is whether, as in the past, the military will willingly hand over the reins of government to civilians. Shortly after the EDSA event there already were intermittent moves by military elements to take back what the civilians were holding. Later military adventurism -- the Oakwood mutiny and the Peninsula Hotel incident -- were also military expressions of dissatisfaction with the way civilians were running government. I see the current movement towards setting up a transition government as tantamount to a confession of civilian incapability and an invitation to permanent or at least a protracted military rule.

Finally, as I mentioned above, bishops have been approached. So far they have been silent. But it is interesting to note that bishops have not been silent about the involvement of Father Panlilio in the electoral process. We should hear from the bishops about how they stand with respect to a revolutionary transition government, especially if it should involve some leaders of the Church.

10 August 2009