Friday, April 07, 2006

Template of Petition for Prohibition (prohibiting the Commission on Election from conducting verification of signatures of the Peoples initiative)

IMPORTANT NOTE: THE PROPOSAL IS, RATHER THAN FILING AN ACTION WITH THE SUPREME COURT, THE INITIATIVE MUST FIRST BE FOUGHT IN EACH OF THE COUNTRY’S LEGISLATIVE DISTRICTS. IF ONLY ONE DISTRICT IS ENJOINED, OR THE SIGNATURES THEREIN VOIDED, THE WHOLE INITIATIVE COLLAPSES FOR FAILURE TO GET THE 3% IN EACH DISTRICT REQUIREMENT.

THIS TEMPLATE, DRAFTED BY CLCL LAWYERS, MAY BE USED BY ANY CONCERNED LAWYER TO FILE A PETITION FOR PROHIBITION WITH TRO IN ANY MUNICIPALITY, CITY OR PROVINCE.

THANK YOU.

CODAL

Petition for Prohibition

(With Prayer for Preliminary Injunction and Temporary Restraining Order)

Prefatory

“While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.”[1]

“Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera (34 SCRA 98):

‘The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.’ * * * The ensuing paragraphs of the opinion in Barrera further emphasizes the point: ‘Such a thought was reinterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: ‘Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings.’”[2]

This is a case basically filed to compel adherence to the Rule of Law, which in this case relates to the Constitution itself, an act of Congress (Republic Act No. 6735), and the Supreme Court’s holding, as part of the legal system of the Philippines,[3] that R.A. No. 6735 is “inadequate to cover the system of initiative on amendments to the Constitution.”

In spite of the foregoing legal obstacles, an in open disregard if not blatant disregard of what the Constitution provides and what this Honorable Court has decreed, attempts by various public functionaries, including the respondent Commission on Elections, continue with an apparent attempt to render the resolution of any constitutional or legal issue moot and academic by flagrant and shameless bullying and railroading of the intended revision of the Constitution through extra-constitutional means. It is, therefore, in light of these developments, that petitioners come to this Honorable Court to implore its powers under the legal framework to stop the movement – or, the “train” – at its tracks before it would gotten enough momentum where it would barrel its way against any and all legal or constitutional obstacles.

The Parties

[Supply]

Statement of the Case

[Supply]

Statement of Facts

[Supply]



Arguments

I

THE COURT’S RULING IN SANTIAGO V. COMMISSION ON ELECTIONS, 270 SCRA 106 (1997), BARS THE RESPONDENT COMMISSION ON ELECTIONS FROM TAKING ANY ACTION ON ANY SO-CALLED PEOPLE’S INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION

II

ASSUMING ARGUENDO THAT THE PEOPLE’S INITIATIVE CAN PROCEED, THE SAME CAN ONLY PROPOSE “AMENDMENTS” AND NOT “REVISIONS” TO THE CONSTITUTION

III

THE GOVERNMENT-SPONSORED INITIATIVE BASTARDIZES THE VERY SPIRIT AND IDEA OF A PEOPLE’S INITIATIVE

IV

ANY GOVERNMENT PARTICIPATION IN THE PEOPLE’S INITIATIVE CONSTITUTES ILLEGAL EXPENDITURE OF PUBLIC FUNDS

Discussions

Petitioners respectfully submit that the respondent Commission on Elections must be stopped at once without waiting for any further acts on its part in relation to the on-going attempt to undertake a so-called “people’s initiative” in view of the very fact that as the law and state of things presently stand, it absolutely has no authority to have anything to do with such a process of constitutional amendment or revision. The Court has spoken in clear, definite and unambiguous manner in Santiago v. Commission on Elections[4] such that everybody else only has to listen and abide. To paraphrase Tugade v. Court of Appeals,[5] the Court having spoken, the COMELEC’s duty is to obey. Or, as the Court put it in Lapinid v. Civil Service Commission, “every department and office in the Republic must know its place in the scheme of the Constitution.”[6]

In addition to the foregoing reality, and assuming arguendo that people’s initiative could be allowed, the present attempt to undertake a constitutional overhaul through people’s initiative is not authorized by the Constitution. While the fundamental law allows for “amendments,” the present undertaking is geared towards introducing “revisions” to the Constitution.

Further, the active participation of, or sponsorship by, the government and its functionaries of the so-called “people’s initiative” bastardizes or corrupts the very idea of such a grass-roots undertaking. Instead of the people really doing it themselves, they are being railroaded or hoodwinked into it by the government itself.

If the so-called “people’s initiative” could not be done presently due to legal obstacles, it necessarily follows that any expenditure of public funds for it is illegal and unconstitutional.

I

THE COURT’S RULING IN SANTIAGO V. COMMISSION ON ELECTIONS, 270 SCRA 106 (1997), BARS THE RESPONDENT COMMISSION ON ELECTIONS FROM TAKING ANY ACTION ON ANY SO-CALLED PEOPLE’S INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION

Pursuant to the role of the Supreme Court in the system of a constitutional government, it has the prerogative to declare what the law is. It is its determination of what the Constitution or any statute for that matter says that is binding and until a new reading is had by the Court, what it has said in a case is the law for everybody else to follow. Nobody has the right to second guess the Court, much less challenge its determination in a manner that borders on direct challenge to its authority to pronounce what the law is, such as what is being done presently the respondent COMELEC.

The Court pointedly said in Santiago v. COMELEC:

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R. A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).[7]

Yet, in spite of the clear language and meaning of the Court’s pronouncement, the respondent COMELEC is still proceeding to undertake measures designed to provide validity and legitimacy to the so-called people’s initiative. It is acting as if the Court has not said anything about it. But it already had, and that was fully more than nine (9) years ago. So it is not as if the question is novel, or that it has yet to be resolved. In the present state of things, the Court has spoken in no uncertain terms and everybody else in the government must have to respect it. While the Court’s pronouncement may be abandoned, government functionaries must abide by it before it so reconsidered by the Court. Yet, as everybody has seen, the government functionaries are acting and behaving like the Court has not said anything at all.

In this regard, it is also quite revealing that the COMELEC Chairman has somehow thumbed his nose at those pointing out that it is illegal for such electoral body to proceed with the “people’s initiative.” He has reportedly told everyone disagrees with what they are doing to go to the Court to get an injunction, instead of they stopping what they are doing pursuant to what the Court had already told them so long ago.

COMMISSION ON ELECTIONS Chair Benjamin Abalos Sr. yesterday challenged groups opposed to the verification of millions of signature in support of a shift to a parliamentary form of government to get an injunction from the Supreme Court if they believed that the verification process violated the high tribunal’s earlier ruling.

“‘Let us stop arguing. They should go to the Supreme Court and stop us,’ Abalos said in a phone interview yesterday.”[8]

Such stance on the part of a government functionary who is supposed to be guided by binding pronouncements coming this Honorable Court is not only revealing but is quite dangerous. If the COMELEC Chairman can act this way, what stability and what degree of confidence and reliability will the entire body politic have in the rulings of this Highest Tribunal? If every issue could be revived and not held bound under a previous ruling of the Court based on the same state of the law, what would stop the government from simply proceeding with what it wants, challenging every one who disagrees to go once more to the Court to challenge the new act?

From 1997 to the present, nothing has been done to address the problem pointed to by the Court in Santiago. No law has been enacted to provide for people’s initiative as a means of proposing amendments to the Constitution. For nine (9) long years, things stood as they were when the Court took Congress to task for not including it in Republic Act No. 6735. For 9 long years, everyone was guided by what the Court said in Santiago and yet all of a sudden, it appears that nobody is paying heed to what the law on the matter.

It is quite strange, too, if not totally preposterous that instead of simply being guided by what the Court said in Santiago, the chief government functionary supposedly bound by it has thrown a challenge to those reminding him of what he may or may not do to instead go back to the Court to get an injunction. Should it not be that he should simply obey what the Court then said and let anybody asking to do otherwise to go to the Court and seek a contrary directive?

Petitioners submit that the matter is a simple one and the sooner it is resolved, the better for everyone. In the final analysis, this is a matter that ultimately boils down to adherence to the Rule of Law and the respect and obedience to the pronouncements of this Honorable Court. If what the respondents have done here would be allowed to fester and set a trend, it would only lead to anarchy and open disregard and defiance of this Honorable Court’s rulings, which might as well lead to the unraveling of the republican system that the people have set up for themselves. To recognize the validity of what the respondent COMELEC has done is to give imprimatur to the force of might trampling the ascendancy of what is right.

II

ASSUMING ARGUENDO THAT THE PEOPLE’S INITIATIVE CAN PROCEED, THE SAME CAN ONLY PROPOSE “AMENDMENTS” AND NOT “REVISIONS” TO THE CONSTITUTION

Petitioners also contend that, even assuming Santiago is no longer controlling, the proposed people’s initiative is unconstitutional on the ground that it exceeds its proper boundaries. The Constitution has provided for amendment and revision of the Constitution through a constituent assembly, constitutional convention and people’s initiative. It has advisedly allowed for amendment and revision only for the first two, leaving people’s initiative to deal only with amendments. The Charter provides:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

It seems plain to everyone except to those who pretend to see or imagine otherwise that only “amendments” may be tackled by a people’s initiative. Interestingly, though, the proposed charter change through people’s initiative already partakes of revisions – changing the form or system of government from a presidential one with a bicameral Congress to a parliamentary system with a unicameral legislature. This effects a substantial and radical change, a fundamental realignment of the rules of the game, affecting the very fabric of the governmental set-up.

Fr. Bernas, a noted constitutionalist and a member of the Constitutional Commission that drafted the 1987 Constitution wrote:

Article XV of the 1935 Constitution provided the manner of proposing, submitting, and ratifying amendments to the Constitution, but it was silent about revision. Article XVI of the 1973 Constitution provided for the manner of proposing, submitting, and ratifying both amendments to and revisions of the Constitution. So does the 1987 Constitution. Under both the 1935 and 1973 Constitution, however, the procedure both for amending and for revising the Constitution was the same. Hence, the distinction between amendment and revision was not very important. Things have changed under the 1987 Constitution which introduced “initiative and referendum.” As will be shown later, initiative and referendum can be used for amendments but not for revision. Hence it becomes important to determine whether the exercise involved is amendment or revision.

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 to be 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 over-all implications for the entire document, to determine how and to what extent they should be altered. Thus for instance a switch from the presidential system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the Constitution.

The distinction between amendment and revision was noted in the deliberations of the Constitutional Commission. As Committee Chairman Jose Suarez said:

We mentioned the possible use of only one term and that is, “amendment.” However, the Committee finally agreed to use the terms “amendment” or “revision” when our attention was called by the honorable Vice-President to the substantial difference in the connotation and significance between the said terms. As a result of our research, we came up wit the observations made in the famous – or notorious – Javellana doctrine, particularly the decisions rendered by Honorable Justice Makasiar, wherein he made the following distinction between “amendment” and “revision” of an existing Constitution: “Revision” may involve a rewriting of the whole Constitution. On the other hand, the act of amending a constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential sa a consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the Article governing amendments or revisions to the new Constitution.[9]

It thus seems crystal clear that when the 1987 Constitution was adopted and ratified by the people, they must have understood that the terms “revisions” and “amendments” had distinct differences and understood that people’s initiative only referred to “amendments” and did not include “revisions.” Thus, if every “revisions” are intended to be introduced into the 1987 Charter, the same must be done through either Congress acting as a constituent assembly or by means of a Constitutional Convention but never through people’s initiative. By way of analogy, what was said by the Court in Ople v. Torres[10] might as well apply mutatis mutandis:

As said administrative order [No. 308] redefines the parameters of some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law.

Accordingly, in the same manner, inasmuch as the proposed charter changes redefines the parameters of some basic postulates of the political system – from presidential to parliamentary, from bicameralism to unicameralism, with concomitant modifications on the concepts of separation of powers – the same must be done through Congress acting as a constituent assembly or through a Constitutional Convention and not through the limited power given of amendment entrusted to a people’s initiative.

III

THE GOVERNMENT-SPONSORED INITIATIVE BASTARDIZES THE VERY SPIRIT AND IDEA OF A PEOPLE’S INITIATIVE

Without conceding that a people’s initiative is allowed at this time, petitioners also submit their observation that it seems quite absurd that a provision of the Constitution designed to empower the people is utilized in an entirely different context to subvert the very idea. A people’s initiative presupposes that the “initiative” comes or originates from the people. Yet what we see is the sorry spectacle of the government functionaries themselves dictating the process – it is coming from the top, instead of emanating from the grassroots. If this were not so, why would the President and the Department of Local Governments so interested in pushing for it to the point of orchestrating the holding of citizens’ assemblies? Should it not be that the idea should rise from the people themselves, going up for consideration by their fellow citizens? Yet what we are witnessing are the ideas, desires, and ambitions of those in power to force what they want to have a semblance of a people’s will.

Petitioners submit that this so-called government-initiated movement masquerading as “people’s initiative” bastardizes the very concept of people’s initiative enshrined in the Constitution. It was meant to empower the people, not to ensnare them through ideas coming from the top trickling down. It should, therefore, another ground to stop this charade once and for all.

IV

ANY GOVERNMENT PARTICIPATION IN THE PEOPLE’S INITIATIVE CONSTITUTES ILLEGAL EXPENDITURE OF PUBLIC FUNDS

From the premise above that the entire exercise for a so-called “people’s initiative” is illegal and unwarranted, any expenditure of public funds by respondents is illegal and unconstitutional. If there is no authority to proceed, then necessarily any funds or property, or time expended by those in the government in undertaking such a project constitutes illegal and unconstitutional expenditure and use of funds, property and resources of the government. Accordingly, the same should be stopped at once before valuable resources of the people are wasted and diverted to a use that has no legitimate purpose.

Petitioners accordingly beseech this Honorable Court to enjoin forthwith the use of public funds for the operation and activities of the so-called charter change movement, specifically an official acts of the COMELEC verifying the authenticity of the signatures of the electorate. Since it has no legal authority to do so, it cannot use government funds, property and human resources for such purpose. Any act in this direction would only constitute unwarranted, illegal and unconstitutional disbursement and misuse of tax-raised money and government resources.

[On Prayer for Temporary Restraining Order]

Petitioners respectfully request this Honorable Court to immediately, upon the filing of this petition, enjoin further acts, deliberations and expenditures and release of funds for the verification of signatures or other activities relative to the propose people’s initiative, and thereafter, following its consideration of the merits of this petition, permanently enjoin any and all government activities designed to give the semblance of validity to the attempt to institute a people’s initiative to propose amendments to or revisions of the Constitution.

Further, considering that this petition is predicated on the submission of the petitioners that the any present actions by the respondent COMELEC, its officers, employees and other government officials who might have anything to do with the people’s initiative constitute an unconstitutional expenditure of public funds, and that there could possibly be no monetary damage incurred by the respondents by stopping their work while this petition is pending, aside from the fact that this is a purely public action designed to arrest the continued illegal disbusement of public funds, petitioners submit that they need not make any undertaking to submit a bond for the issuance of a Temporary Restraining Order or Preliminary Injunction.

Final Word

Petitioners submit that lessons from the past instruct us to learn from what we see presently for they somehow foreshadow what might be forthcoming. Several provisions of the 1987 Constitution have incorporated measures and safeguards to prevent the recurrence of the painful experiences that the people had to go through in the past. It is only fitting therefore that we should ever be vigilant against any furtive or stealthy assault on cherished freedoms and rights lest they soon lead to things we will again regret ever more. What was said in a case more than a hundred years ago, and in a different clime, holds true for everyone, specially at this trying and parlous times.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.[11]

Or, in the words of Justice Black, dissenting in Board of Education v. Allen, “it nearly is always by insidious approaches that the citadels of liberty are most successfully attacked.”[12]

We see all the signs of the assault on cherished freedoms. We are witnesses the blatant and fragrant disregard of a ruling case law. We find the creeping extra if not unconstitutional means to achieve selfish ends. We have to take action before our senses shall all have been numbed and disabled. Now is the moment, now is the time to take action before we are reduced to simply longing for that moment when we should have done more to save ourselves and the values we, the Constitution and the Rule of Law stand for.

Prayer

I. Grant the Petition for Prohibition with Injunction by prohibiting the Commission on Election of the (Province, City or Municipality) from conducting verification of signatures of the Peoples initiative submitted by Sigaw ng Bayan, by Local Government Officials, ULAP or any other supposed peoples’ organization the initiative supporters may use in the current campaign for signatures.

II. In the alternative, if the COMELEC has completed its verification of signatures, to declare such verification null and void.

III. Prohibit the COMELEC from issuing a certification that it has verified signatures in the campaign for peoples initiative and declare any such issued certification void and without force and effect.

IV. Order the COMELEC officials to show cause why it cannot be held in Contempt of the Supreme Court for violating the permanent injunction in Santiago vs. Comelec.

V. Other relief



[1] Lapinid v. Civil Service Commission, 197 SCRA 106 (1991), at ___; Emphases supplied.

[2] Tugade v. Court of Appeals, 85 SCRA 226 (1978), at 230-231, cited in Conde v. Intermediate Appellate Court, 144 SCRA 144 (1986), at 150; Emphases supplied.

[3] “Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” (Article 8, Civil Code)

[4] 270 SCRA 106 (1997)

[5] 85 SCRA 226 (1978), at 230.

[6] 197 SCRA 106 (1991), at ___.

[7] Santiago v. COMELEC, 270 SCRA, at ___.

[8] “Abalos Tells Critics of Cha-Cha: Go to SC,” Philippine Daily Inquirer, 3 April 2006, p. 1, col. 3.

[9] Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Ed., at 1293-1295.

[10] 293 SCRA 141 (1998), at 152.

[11] Justice Bradley, writing for the U.S. Supreme Court in Boyd v. United States, 116 U.S. 616 (1886), at 635.

[12] 392 U.S. 236 (1968), at 251-252, citing Boyd.

1 Comments:

Anonymous Anonymous said...

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3:48 AM  

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