April 28, 2006 · Posted in: Charter Change, Podcasts
Cha-cha won’t happen this year — Fr. Bernas
PERHAPS, Fr. Joaquin Bernas says, it is because of two recent rulings issued by the Supreme Court that he remains optimistic that the high tribunal will shoot down any attempt to revise the 1987 Constitution through a people’s initiative.
“I don’t see the (charter) revision coming this year,” Bernas, one of the framers of the 1987 Constitution and dean emeritus of the Ateneo law school, told a recent forum.
(Links to audio files of Fr. Bernas’s presentation, as well as excerpts from the open forum, are found at the end of this post.)
Bernas said, “If it comes through this year, it would only mean that the Supreme Court will have approved initiative and referendum for revision. We can give up on the Supreme Court if that happens.”
And Bernas is not about to give up on the Supreme Court, at least, he said, after its recent decisions on Executive Order 464 and the Calibrated Preemptive Response policy.
“I think the justices are conscious of their own place in history,” Bernas said, referring to the recent rulings.
On April 20, the Supreme Court partially voided EO 464, issued by President Gloria Macapagal-Arroyo September last year clipping the powers of Congress to summon executive officials to its inquiries. Five days after, the Court issued its opinion on the administration’s policy on rallies, saying CPR has no place in the country’s “legal firmament” and should not be used to abuse government’s authority to regulate assemblies.
Bernas believes the Supreme Court will stand in the way of attempts to effect the switch from a presidential to a parliamentary system of government by way of initiative and referendum. A 1997 decision by the Court said the Constitutional requirement for an enabling law must be fulfilled before a “people’s initiative” could be used to amend the Constitution.
While the matter of the current signature drive has not been brought before the high court, the 1997 decision is the standing interpretation of the charter and will thus be applied.
To begin with, Bernas said, initiative and referendum may be used only to introduce amendments to the charter, and not revisions. “For the simple reason of practicality,” Bernas said. “When you want to make major changes, there are a lot of things you have to debate upon. You can’t expect a mass of people, unorganized, to debate on these.”
(Changing the requirements for those who wish to run for president, for example, would be a simple amendment. But changing the framework of government isn’t; it’s a revision.)
Fr. Bernas recalled the adoption of the new constitution in 1972, paving the way to a shift from a presidential to a parliamentary system. “It took more than one year for the Constitutional Convention to do it,” he said. Again, in 1987, Bernas said, it took over half a year for the Constitutional Convention to effect the new constitution.
Thus, major changes in the current constitution, such as shifting to a parliamentary system of government, will have to be introduced by either a Constitutional Convention, or Congress sitting as a Constituent Assembly.
The administration’s allies in the House of Representatives are themselves in the thick of preparations for installing an interim parliament by July. Led by House Speaker Jose de Venecia Jr., the representatives are pushing for a Constituent Assembly that would introduce the charter revisions.
This, too, Bernas said, faces obstacles, as the Senate has expressed its disinterest in joining the rush. The constitution provides that Congress, by a vote of three-fourths of all its members, sit as a Constituent Assembly. De Venecia’s group interprets the provision to mean that if they could obtain at least 195 signatures, even if no single senator votes in favor, then the Constituent Assembly can convene. (236 representatives and 24 senators make 260; three-fourths of the number is 195.)
Striking down De Venecia’s interpretation of the constitution, Bernas told the forum, “(The two chambers) will have to vote separately.” Should they insist, Bernas said, then the Supreme Court ill have to be involved. “And I think the court will say, ‘Ladies and gentlemen, you have to vote separately.'”
The campaign for a “people’s initiative” is facing other obstacles from various groups who wish to derail the cha-cha train. Yesterday, a petition was filed asking the Quezon City regional trial court to stop the verification of signatures gathered by the Sigaw ng Bayan. This morning, opponents of the current initiatives gathered at the Club Filipino to launch STOP (Sa Tamang Oras at Paraan) Cha-Cha; the group promises to engage in a “roadshow” to bring to the people their campaign against what they called was Mrs. Arroyo’s cha-cha “railroad.”
In yesterday’s forum at the Ateneo, Bernas gave a list of what he said were the “moral issues” in the current signature campaign:
- Initiative belongs to the people. Where is the initiative really coming from?
- Lack of information on what is being offered. Do those people whose signatures are being obtained know what they are signing for?
- The parliamentary system of government is being touted as the panacea for all our problems. But how? It is not being shown to us.
- Who will benefit from the change? That is the big question.
Listen to Fr. Bernas and the forum participants:
1. Fr. Bernas discusses the main proposals for changing the provisions of the 1987 Constitution concerning the system and form of government. He provides an overview of the differences between a presidential and parliamentary system; a bicameral and unicameral parliament; and a unitary and federal state.
Listen here.
Length: 00:15:34
File size: 10.7MB
2. Fr. Bernas talks about the current initiatives to revise the 1987 Constitution. He describes the obstacles facing proponents, including the lack of an enabling law on people’s initiative. He recalls what he refers to as “the strange case” of the 1973 Constitution, where citizens’ assemblies were used by the Marcos government to amend the Constitution. “Now, there is an attempt to repeat Marcos’s citizens’ assemblies,” Bernas says.
Listen here.
Length: 00:13:37
File size: 9.3MB
3. Open forum: Students, NGO members, and other forum participants ask Fr. Bernas, among others, to answer his own question: Who will stand to gain from current initiatives to change the charter. Bernas tosses the question back to the audience, but says, “In my impression, it’s for them.”
Listen here.
Length: 00:08:10
File size: 5.6MB
Click here for a copy of Fr. Bernas’s presentation slides.
15 Responses to Cha-cha won’t happen this year — Fr. Bernas
joselu
April 28th, 2006 at 2:57 pm
The nice thing about when Fr. Bernas says mass in Ateneo Rockwell is that he always looks so sleepy & tired & or says no sermon or short sermons.I don’t know if his only aborido.
But he is surely inspired to talk politics.
Phil Cruz
April 28th, 2006 at 5:00 pm
“I don’t see the (charter) revision coming this year”. ..“If it comes through this year, it would only mean that the Supreme Court will have approved initiative and referendum for revision. We can give up on the Supreme Court if that happens.”
That statement coming from Fr. Bernas has an ominous tone to it. Much like bells tolling at the end of the day. For Fr. Bernas is a most respected constitutionalist and would be one of the last persons to give up hope on the Supreme Court. He continues to hang on to that hope. But one can see he is also a pragmatist.
His statement, however, forebodingly rings loud and clear. It will no doubt reverberate throughout this archipelago. And if the nation finally gives up on the last bulwark of democracy, the people can now truly have their say. And one must dread to see that day.
monk_x
April 28th, 2006 at 9:02 pm
Fr. Bernas’ comments do not reveal his ability to predict jurisprudence. His continuous efforts to comment on this issue—unprecedented, if memory serves me correctly—shows how uncertain he is about how the present Supreme Court will rule on the Arroyo administration’s efforts to amend the Constitution through people’s initiative. These comments are less predictions about how the Court will rule on the issue than they are appeals s to the Justices not to allow themselves to be used to serve vested interests.
Santiago v. COMELEC was delivered by a divided Supreme Court and its position as precedent rests on shaky ground at best. As NEWSBREAK recently pointed out “all the justices who had ruled that RA 6735 wasn’t the enabling law have retired; two of those who said the law was sufficient are still with the Court, one of whom is Chief Justice Artemio Panganiban; the rest are appointees of the President.”
What Fr. Bernas seems to be guarding against is the possibility that the Supreme Court will make the same mistake it did in 1973 when it ruled that the 1973 Constitution was operational despite the procedural infirmities that attended its “ratification”. In doing so, it facilitated Marcos grip on power and the Court impaired its own credibility as an independent institution for many years thereafter.
The Speaker of the House believes that if certain arguments are repeated often enough in the media, they will become credible enough to consider despite the fact that they are strained, ridiculous or devoid of any legal basis. Thankfully, Fr. Bernas has been using his clout to discredit the arguments presented by the proponents of the amendments of the Constitution before they can be seriously considered.
The Supreme Court will decide on this issue soon but the decision, unlike its ruling on Executive Order No. 464 and the CPR policy of the government, will not be unanimous. And this is what Fr. Bernas is worried about.
Ambuot Saimo
April 28th, 2006 at 11:12 pm
In a democratic sovereign nation, the constitution is the parent and the people in power the children. When these children misbehave, is changing the parents the remedy? The constitution is not the problem – it’s the people running the government. Disciplined children behave even when their parents are long gone!
Tom
April 29th, 2006 at 12:59 am
This whole mess about the so-called “People’s Initiative” is so nauseating. The current version of the constitution, as well as the ones before it, were mostly patterned after that of the good old USA. On occasion, Philippine courts and jurists consult and cite US jurisprudence to bear on local cases.
The Philippines has not had much experience with initiatives. Because of this fact, where should it turn to for guidance and illustrative examples but to a nation or nations that have had a lot of experience with initiatives. One such nation is, tadah, the USA.
Here in Washington state (as in “Sleepless in Seattle”) we have had umpteen initiatives that were proposed, voted on, approved, rejected, etc. In at least two occasions, an initiative, after the usual process of drafting, signature gathering, verification of signatures, being declared by the secretary of state to have fulfilled all requirements of the law, put on the ballot, voted on, won the vote, were eventually declared by the state supreme court to be invalid because there was MORE THAN ONE SUBJECT MATTER.
In both cases, there was nothing questionable about the signature gathering (any attempt by government to interfere will never pass muster and media scrutiny) because in fact, ALL initiatives here have been started by ordinary citizens or private associations, NEVER by a government instrumentality. The government (via the legislature) already MAKES the laws. If the government wants to amend laws, or the constitution for that matter, they already have the mandate and authority to do it. They don’t need the initiative process to accomplish it. ONLY the people, not the government, resorts to the initiative process, usually to repeal certain inidividual portions of existing law.
One of the two initiatives was for a repeal of our Motor Vehicle Excise Tax. This initiative sought to remove the excise tax portion on our motor vehicle registration fees. Instead of a flat $30 fee for registration, we were paying hundreds of dollars more based on the value vehicle. On its first iteration, the initiative won, but as I already mentioned above, it was invalidated by the state supreme court for having more than one subject matter. It was later refined at the flaw corrected, resubmitted to the voters, won the vote, and now we are paying only a small flat fee, not the hundreds of dollars we used to pay.
In this and all other initiatives proposed before the voters, the process is the same. One person or a group of people (not a government entity) would come up with an idea, develop it, draft the full text of the initiative (nothing like this approve the shift to unicameral and then the parliament will continue rewriting the whole constitution later), have it reviewed by lawyers and those who know state law. Then the long process of signature gathering starts. And it is a long process. WIth all the mass media at people’s disposal, with most homes having computers and internet access, it still takes months to gather a measly hundred thousand signatures. Compare that to the alleged millions of signatures gathered in a matter of days in the Philippines. Incredible. We have someone we call “Initiative King” here, a man named Tim Eyman, the man who drafted the initiative to repeal the motor vehicle excise tax. He should go to the Philippines to learn.
No one but no one here in Washington will ever dream of seeing the initiative process used to propose a shift from the bicameral state legislature to a unicameral one. That would be way too broad of a subject matter (in fact would cover MANY subject matters). If even the single matter of the motor vehicle excise tax had to go through several iterations before the initiative passed without being challenged in the state supreme court, how could such a gargantuan initiative even take off the ground. The fact is it will never happen as the initiative provisions in our state constitution is NOT intended for such matters. It is very obvious that the USA as a nation, and individual states within it, are not in the habit of changing their constitutions wholesale. We do make individual amendments (as in the Bill of Rights and individual initiatives) but not one state has ever junked its whole constitution since the founding of the nation in 1776. That’s 230 long years.
I’m not in the least suggesting that the Philippines should subject itself to Washington state jurisprudence, or the USA constitution. All I’m saying is that there are precedents to look at for guidance, not necessarily as laws to be obeyed as the Philippines is a sovereign nation and is not subject to US laws.
Sana naman maunawaan ng mga posters dito na hindi ko sinasabing walang kuwenta ang Pilipinas at napakagaling na ng USA. Ako’y ipinanganak na Pilipino at isip at dugong Pililipino pa rin kahit na matagal na ako dito. Ang main point ko lang, in summary, ay: PALSO ANG “PEOPLE’S INITIATIVE” na ipinag-gigiitan ni GMA at ng mga amuyong niya, both in subject matter/s and process. Iyan po ang aking humble and accurate opinion. Salamat po.
Ambuot Saimo
April 29th, 2006 at 2:36 am
Tom, sapul na sapul!!! I hope someone in Malakaniyanayan get your message. The keywords “more than one subject matter” sums it all. But I have a gut feeling these people know this elementary legal lingo but pretending not. They pretty well know that any of the two measures they are proposing will not pass the Supreme Court’s scrutiny but still doing it. The real purpose is diversionary- to divert peoples’ attention from Gloria. If you remember these crazy ideas were hatched at the height of incessant attacks on Gluerya and these spin doctors have to do something. Problem is because of the absurdity of the ideas coming from people who are supposed to be sane (otherwise they have not been elected) it was sensationalized and presto… they succeeded. Haay.. ambot saiyo!!!
baycas
April 29th, 2006 at 3:54 am
sabi ni father, hindi raw mañañari ang cha-cha ngayong taon?
aba, siyempre! http://www.pcij.org/blog/?p=793#comment-23236
Phil Cruz
April 29th, 2006 at 3:05 pm
Tom,
Great piece! Clear as day.
But “My-Dream-is-to-be-Prime Minister” JDV would say “We welcome the comments of Tom, however, if we do not follow the way they do things in the USA, we would be setting a precedent and this would be the first time in the history of our country and the whole world would see and we will be setting the example to Third World countries and this will be the first time in the history of their history….”
Phew..
Then “Two-Disc” Bunye would say “Let’s move on.”
Juan Makabayan
April 29th, 2006 at 4:46 pm
“While I’m for amendments, not at this time because there are more serious problems that we have to address,” Aquino told reporters before a dialogue on the people’s initiative for Charter change (Cha-cha) at the Club Filipino in San Juan.
Phil, Baycas, Tom, Abuot, etal what are your reasons if you would support the Stop chacha bandwagon?
http://stopchacha.blogspot.com/
pls pass on
INSIDE PCIJ: Stories behind our stories » Cha-cha in Congress déjà vu of impeachment — Rep. Baraquel
May 1st, 2006 at 2:38 pm
[…] However, constitutional experts such as Fr. Joaquin Bernas, SJ, insist that the two chambers will have to vote separately. (Click here for audio files of a recent presentation by Fr. Bernas, where he hypothesizes that there are enough obstacles to delay current charter-change initiatives, at least not upto the end of this year.) […]
INSIDE PCIJ: Stories behind our stories » As in 1973, the ball is in the Supreme Court
May 3rd, 2006 at 1:38 pm
[…] Still, there are those like Fr. Joaquin Bernas, S.J., a constitutional law expert and one of those who had helped frame the 1987 charter, who say the current Supreme Court may yet pull a surprise — at least for those who want to change the constitution. […]
Urgie F.
June 7th, 2006 at 1:06 pm
There is nothing wrong with the present Cpnstitution, but the wrong are those people who run the government especially those occupying Malacanang and her chorts in Congress like Jose de Venecia, and et all. The constitution is not a living organism, it’s a legal document that every time when vested interests, liar, cheater and thief say the system is wrong. Very stupid. They must go to hell.
gwaping
June 7th, 2006 at 1:15 pm
Urgie F., yes we’ve got problems with the people running the government but we have to recognize that really there are problems also in our present constitution, one is the election every 3 years, another is the multi-party system, also the election at large of senators, foreign restrictions to own properties and many more, let us not be emotional about the charter change let us be practical and looking forward.
We have to admit that the 1987 constitution was conceived during the time when our emotion are too high which make it EXTRA EXTRA conservative and not realistic.
INSIDE PCIJ: Stories behind our stories » JDV ends House session with a pitch for unicameral Parliament
June 9th, 2006 at 2:01 pm
[…] Constitution expert Fr. Joaquin Bernas has said he does not see charter change to be happening soon, because of obstacles facing its proponents, principally the jurisprudence calling for an enabling law for a people’s initiative. […]
awaybabae
June 22nd, 2006 at 11:13 pm
URGIE is right. Nothing wrong with our present Constitution.
Its our leaders in the government who have something ‘wrong’.
Cha-Cha is not the correct remedy. Revising the whole constitution
because of some alleged flaws, what are they? nothing said except
the ‘fight’ between 2 chambers, is a very big ISTURBO to the country
and the people. Just like a house, MAINIT…bakit papalitan mo yun
buong bahay? OPEN MORE WINDOWS so there is better ventilation.
Only some people wants to become P.M. kasi di makapasok sa posisyon ng
president, atbp..
The defect we always have is….change what we have the last 60 years or more, and then change back again…because DI PALA TAMA ANG ATING SALIGANG
BATAS ! aruy ! aray ! Ka gastos mo kababayan! Yun mga tao maloloko sa
yo. Some are trying to project that we have to ‘clean up’ and do better by
changing constitutions…so Cha-Cha tayo…This remedy is utopia…only in
porgatorio we really can cleanse ourselves and be before the Almighty.
Pag paka buti tayo mga Pinoys…yan ang kailangan natin…Alisin ang mga
corruptions, cheatings, smugglings, vote-buying, atbp, lahat na masasama
ng gawain natin….BAGO TAYO ! hindi yun Saligang Batas !