As in 1973, the ball is in the Supreme Court

THE FATE of present efforts to change the constitution now lies in the hands of the Supreme Court — much like how it was in 1973.

Back then, President Ferdinand Marcos managed to get the highest court of the land to endorse what was an anomalous ratification of a new charter he had tailor-made to suit his needs.

Today, with the Arroyo administration seemingly following Marcos’s playbook page by page, those against charter change are wary on how the Panganiban Court would act once the matter arrives at its doorstep.

Political scientist Jose Abueva, secretary of the Constitutional Convention (ConCon) that produced the 1973 charter and who was appointed chairman of the Arroyo administration’s Consultative Commission (ConCom) on charter change last year, makes no bones about what he expects to happen.

“My hope,” he says, “is that in the event of a clear majority, an impressive number (signs the petitions asking for charter change), the Supreme Court would accept that as the people’s choice.”

That implies that even if the charter-change (cha-cha) petitioners fail to gather the required three percent of the registered voters per district, Abueva hopes the high tribunal will still endorse cha-cha.

Cha-Cha to get Gloria out

Last December, President Gloria Macapagal Arroyo formed the ConCom, which produced a draft constitution that would have her enjoying expanded clout. But trips taken by ConCom members around the country had revealed that people wanted cha-cha if only as a means of getting rid of the current administration.

According to official transcripts of ConCom sessions, member Emily Marohombsar said that although they weren’t asked, “the people brought it up, they said that ‘we support charter change because we believe it would mean also a change in the regime.'”

Malacañang officials say the Palace had no hand in the draft document. In March, “citizens’ assemblies” were formed to secure millions of signatures for a “people’s initiative” to grant Arroyo even stronger powers than those proposed by the commission.

The initiative’s supporters say they will produce over 22 million signatures, which would exceed half the number of current registered voters, now at 43.5 million.

ConCom member Raul Lambino says, “I cannot stop them, they are still gathering more signatures. In fact when I talked to some governors they would like to get more than the 50 percent…to show all opposition groups that there is really a strong clamor for constitutional reforms.”

After that, the plan is to ask the Commission on Elections (Comelec) to authenticate these signatures. The next step, some observers fear, is that Arroyo would — as Marcos did more than 30 years ago, after his own citizens’ assemblies “overwhelmingly ratified” the 1973 constitution — issue a proclamation saying the people have spoken and that their decision must be respected even by the Supreme Court since sovereignty resides in the people.

Expressions of the people’s will

Abueva himself says that the Supreme Court has already twice affirmed unconventional means of expressing the popular will. In 1986, he notes, it validated the “People Power” expressed by only around a million people massing along Edsa — a fraction of the total number of registered voters.

In 2001, he adds, the high court favorably viewed a similar demonstration of “people power” and judged it as “a valid exercise of popular sovereignty.”

Abueva points out how, in 2001, “they (Supreme Court justices) even had to invent a doctrine called constructive resignation.”

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.

In a forum last week, Bernas pointed to two recent rulings issued by the Panganiban Court that he says shows that “the justices are conscious of their own place in history.”

On Apr. 20, the Court partially voided Executive Order 464 that had clipped the powers of Congress to summon government officials to its inquiries. A few days later, the Court followed that up with an opinion on the so-called “calibrated preemptive response” of the government regarding rallies; according to the Court, the policy had no place in the country’s “legal firmament.”

These rulings have made Bernas optimistic that there would be no revision of the constitution this year. But if such a revision “comes through,” he says, “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,” he said.

Eagle eyes

Those who are already cynical about the Court, however, are keeping a careful eye on just how close the Arroyo administration comes in copying steps taken by the Marcos government in 1973.

Initially, Marcos had scheduled a plebiscite to meet the requirements of the constitution for a valid ratification. But he suddenly postponed the plebiscite a week before it was to take place. Instead he directed his citizens’ assemblies to conduct a referendum “on important national issues.”

Ten suits were filed before the Supreme Court to stop or void this highly doubtful manner of ratifying a charter — where in some cases, people were asked to raise their hands if they were hungry and these were counted as the votes.

But the Supreme Court dismissed all the cases in a ruling dated Mar. 31, 1973, after Chief Justice Roberto Concepcion received a copy of Marcos’s Proclamation No 1102. According to the proclamation, the citizens’ assemblies had met and they had allegedly asked Marcos to consider their approval as the ratification; not to convene the interim national assembly; postpone elections, and lastly, to continue martial law.

Javellana v. the Executive Secretary, nailed the coffin shut on democracy. The Supreme Court said that even if the constitution had not been ratified by a body or agency “not duly authorized” by the constitution, the court could no longer inquire into the validity of the ratification because people had already accepted and obeyed its laws and the government was already operating under it.

Asked about the Javellana ruling, ConCom member Lambino said it is not relevant to the current people’s initiative. This is because, he said, a plebiscite was sure to follow the initiative, complete with an official ballot, printed and administered by the Comelec.

What’s a plebiscite?

But former ConCom member Vicente Paterno, who resigned from the body last December, in effect disowning the draft charter he helped craft, remains jittery. He says one loophole that charter-change advocates can take advantage of is the fact that the present constitution does not define what a plebiscite is.

“It will have to be a Supreme Court interpretation of what a plebiscite is,” says Paterno, who chose to leave the ConCom after last-minute provisions giving President Arroyo vast powers made their way into the draft constitution. “Is it a written vote or a referendum like what Marcos did in the citizens’ assemblies with a show of hands?”

Bernas, for his part, reminded the audience at a forum last week that a 1997 Supreme Court decision says there must first be an “enabling law” before a “people’s initiative” could be used to amend the constitution. He also stressed that any “initiative” or referendum may be used to introduce only amendments to the charter, and not revisions.

“For the simple reason of practicality,” said Bernas. “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.”

Paterno, however, believes that the government is hell-bent on pushing through with charter change any way it can. He even says that the appointment of former Marcos and Estrada official Ronaldo Puno to the strategic post of local governments chief was proof that “GMA will leave no stone unturned for Cha-cha (charter change).”

Indeed, it now appears that certain members of the 55-member ConCom were chosen primarily because they headed organizations that could be used to harness support for charter change.

Generating “support”

Recently, a print advertisement boasted that “influential business organizations, major labor and civil-society groups, and all the leagues of local officials nationwide have joined in this chorus for change!” It then listed as “joiners” the Philippine Chamber of Commerce and Industry headed by Donald Dee; the Filipino-Chinese Chambers of Commerce and Industry led by Francis Chua; Trade Union Congress of the Philippines led by Democrito Mendoza: the Philippine Council of Evangelical Churches headed by Bishops Efraim Tendero and Federico Magbanua.

What the ad failed to mention was that except for Magbanua, all the named individuals were ConCom members.

The ad also made it appear that the various leagues of governors, city and town mayors, and councilors joined the charter-change movement only recently. These organizations, however, were represented in the ConCom by Dagupan City Vice Mayor Alipio Fernandez, Calbayog City Mayor Mel Senen Sarmiento and Biliran Mayor Gerardo Espina Sr.

Lambino says that these local officials “were invited to become members of ConCom so that they can give the input coming from their constituents.”

Official transcripts of ConCom sessions, however, reveal that some commissioners were not really that interested in getting input from the public. During the contentious debates on Dec. 13 and 14, the ConCom was divided over a proposal to cancel next year’s elections should the draft charter be approved. Some commissioners had objected, arguing that this was not what the people wanted.

“In our regional consultations, the voice of the people was very clear,” said Commissioner Rita Jimeno, former president of the Philippine Bar Association. “They want change and they want it now. In fact, they were saying that they want the present politicians not to run anymore and to ban them from office.”

Debating ‘No-El’

Apparently, though, the “no election” clause was a needed enticement for local officials to support charter change, since it would give them an extra three years in office. Commissioner Romela Bengzon made that clear in her response to her upset colleagues, saying that she was more concerned about getting support from the politicians than from the people.

She said that “the people that we are (talking about) here we can’t even count. Okay? I’m sure.” By contrast, she said, “the people that the local authorities who have promised to market this is measurable — it’s tested. They have the machinery.”

Two rounds of votes took place over the “no election” clause; the first had those for holding the polls winning 18 to 16, while the second gave the victory to the no-election supporters at 22 to 19. The ConCom eventually transmitted both results to President Arroyo, but the draft constitution carries the “no election” clause.

As Commissioner Pedro Romualdo, who was also a delegate to the 1971 ConCon, said during the debates, “If you want our work, which you believe would be for the benefit of our country, never mind the people, country.” — with additional reporting by Vinia Datinguinoo