Quo Vadis Comelec?: The COMELEC is in a Tight and Unbreakable Legal Bind Concerning CHACHA Through People's Initiative

(Conclusion) MS. AQUINO.

In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagrahp (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ.

We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee.

MS. AQUINO.

In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ.

That is right. Those were the terms envisioned in the Committee.

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Commissioner Davide also reaffirmed that this modified amendment strictly confines initiative to AMENDMENTS to - NOT REVISION of - the Constitution. Thus:

MR. DAVIDE.

With pleasure, Madam President. MR. MAAMBONG.

My first question: Commissioner Davide's proposed amendment 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE.

No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision".

(Santiago vs. COMELEC, supra)



Fr. Joaquin Bernas, acknowledged authority on Constitutional Law and ranking member of the Constitutional Commission that drafted the 1987 Constitution, states that under Section 2 of Article XVII of the Constitution, only "amendments" and not "revisions" can be the subject of people's initiative. He then gives a distinction between "amendments" and "revision" as follows:

"An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific portions that may have become obsolete or that are judged dangerous. In revision, however, the guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document, which have overall implications for the entire document or for fundamental philosophical underpinnings of the document, to determine how and to what extend they should be altered. Thus for instance a switch from the presidential system to a parliamentary system would be a revision because of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system because of its effect on other important provisions of the Constitution. Similarly, an abandonment of term limits would be a radical departure from the philosophical intent of the 1987 Constitution, which seeks to disperse political power."

(Bernas, Constitutional Structure and Powers of Government, 2nd Edition, pp. 964-965, emphasis supplied)

The charter changes that are being proposed such as: a shift from presidential to parliamentary unicameral system, thereby abolishing the Senate, no elections and extension of terms of incumbent elective officials, revision of the economic provisions and the establishment of a Transition Government with an Interim Parliament", are not simple amendments but a total revision and overhaul of the 1987 Constitution. To say otherwise is to indulge in some legal hocus-pocus which borders on deception.

Definitely, in light of the letter and spirit of the Constitution as affirmed by the Supreme Court in Santiago vs. COMELEC, the latter cannot accept and give due course to a petition proposing not merely "amendments" but a major revision or overhaul of the 1987 Constitution.

All told COMELEC is in a tight and unbreakable legal bind concerning the current controversial campaign for Chacha through People's Initiative. As the constitutionally-mandated administering and legitimizing authority in all electoral processes in the country, necessarily, if not inevitably, the COMELEC will be drawn into the controversy. As already pointed out, because of the ruling of the Supreme Court in the case of Santiago v. Comelec and the permanent injunction decreed thereunder against COMELEC, the latter has to lay off and decline to take cognizance of matters concerning the system of people's initiative "until a sufficient law shall have been validly enacted to provide for the implementation of the system." In short, COMELEC, at this point, cannot and must not do anything, even if it wants to, to assist in the process of Chacha through People's Initiative.

But as one Poet has written: "things are not really what they seem." This seeming inability or "powerlessness" on the part of COMELEC to do anything concerning the system of People's Initiative to change the Constitution is, actually, its strength. In a manner of speaking it is its invincible shield of protection in defense of its authority and integrity as an independent constitutional body. Amidst all the noise and confusion, the conflicts and controversies arising from the campaign for Chacha through People's Initiative, COMELEC can choose to be an island unto itself, calm, uninvolved and unperturbed. And no group of people, however well-placed or motivated, can fault COMELEC for such inability or "powerlessness", much less, tell COMELEC to take any affirmative action (such as the verification of signatures) in furtherance of their own cause.

If the COMELEC, at this point, cannot and must not do anything concerning the current campaign for People's Initiative, it is simply because the Supreme Court, the supreme and final arbiter in all questions involving the Constitution and the law, has permanently prohibited COMELEC from doing so. This is now weakness. Rather, COMELEC's refusal to act will show the strength of its loyalty to the Constitution and of its commitment to the rule of law. It is the fervent hope of many of our people that this great and momentous opportunity to prove its mettle and its worth as an independent Constitutional body, will not be missed by COMELEC. For COMELEC, the moment of truth has come: Quo Vadis COMELEC?

Anyway, it was not the fault of COMELEC that the Supreme Court ruled against it in the case of Santiago v. Comelec. COMELEC valiantly defended its position in that case but unfortunately it lost. Neither was it the fault of COMELEC that until now Congress has not passed any valid and sufficient enabling law to implement the system of people's initiative. So, let those who want COMELEC to do it their way go to the Supreme Court in order to secure the release of COMELEC from the prohibitory mandate of the Court's permanent injunction. In short, their problem, not COMELEC's.

In fairness to President Gloria Macapagal-Arroyo, it must be said that, contrary to the accusation of the Opposition and the usual bunch of destabilizers to the effect that Chacha through People's Initiative is being pursued in order to keep her in power, the plain and simple truth is: she does not really need Charter Change in order to remain in power until the end of her term or until June 30, 2010, as fixed by the 1987 Constitution. Her continued stay as President is mandated and guaranteed by the Constitution. And she may be removed from such Office only by virtue of that Constitution. In fact, the President is in the strongest and best position to defend her Presidency under the present Constitution than under a "new" Constitution providing for a Transition Government with an Interim Parliament. If the President was able to foil and defeat the recent assault against her Presidency, it was because of her vast and plenary powers under the 1987 Constitution. An untried and untested Transition Government under a new Constitution, with the President sharing some of her executive powers with the Prime Minister of an Interim Parliament, can be a post-dated prescription for destabilization. Interesingly, the people behind Chacha through People's initiative are close allies of the President. But destiny can sometimes play mischievous tricks on us! We have only to recall what happened to the so-called Hyatt 10. Once upon a time, they used to be very close allies of the President but where are they now? Strange.

In any case, listening to all the arguments, pro and con, of the leading protagonists in this great national debate on charter change through People's Initiative, you have to agree that we are truly in a terrible legal mess. Much as many of us would like to introduce some changes in our Constitution, in a manner of speaking, there is a veritable legal Gordian knot that binds the hands of COMELEC from setting up the rightful and lawful process that will bring forth a new Charter for the nation. Figuratively speaking, we need the likes of an Alexander the Great to untangle or cut the legal Gordian knot. Sadly, though, looking at the personalities behind the movement for Chacha via People's Initiative, notably those from the so-called Sigaw ng Bayan, there is not even a faint shadow of an Alexander the Great who can do the job. Perhaps, there may be some legal magicians who can mesmerize the people a la the great Houdini. Very sad indeed!