COMELEC DELIBERATION ON LAMBINO PETITION MUST BE PUBLIC: Oppositors must be Allowed to Prove Allegations of Fraud

CODAL calls on the Commission on Election to dismiss the Lambino Petition because of a Supreme Court ruling prohibiting the Comelec from entertaining such petition. The Commission cannot, and should not, confirm the authenticity of the supposed millions of signatures as this is tantamount to taking cognizance of the petition, a violation of the Supreme Court injunction. Should the Comelec persist to include in its decision a certification that the signatures are authentic and Sigaw has fulfilled the 12%-3% requirements, CODAL demands that the Comelec allow Oppositors to present evidence of fraud in the signature gathering process. CODAL further urges the Comelec to make all its deliberations on the Petition public to ensure transparency in the process considering that the Comelec is perceived to favor charter change proponents.

Chairman Benjamin Abalos and Sigaw have been asking Oppositors to go to the Supreme Court to question the initiative. Since no one went to the Supreme Court, CODAL believes that SIGAW’s gameplan is to have its petition dismissed by the COMELEC so it can immediately go to the Supreme Court expecting a favorable decision. Comelec’s dismissal of the Petition is actually expected since this is the fastest means to have the Santiago ruling reversed.

SIGAW Admissions in its Petition: Fatal to People’s Initiative

CODAL raised new grounds when it filed its opposition yesterday, notably:

I. The Petition should have been filed by the Signatories as Petitioners. Since only Atty. Raul Lambino and Erico Aumentado signed as Petitioners, the Petition is fatally defective and should be dismissed. The 1987 Constitution states in Art. XVII, Sec. 2 that:

Sec. 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. (underscoring supplied)

Clearly, what should have been filed is a Petition of the signatories representing 12% of the registered voters. SIGAW should have drafted the Petition months ago and asked the registered voters to sign it as Petitioners.

Since only two people signed the petition it does not fulfill this constitutional requirement. Also fatal to the Lambino Petition is his admission that the registered voters “affixed their signatures to the signature sheets” rather than the Petition itself. It is in fact impossible for the registered voters to have affixed their signature to the Petition since, as Atty. Lambino further admitted, the Petition is dated August 25, 2006 and is therefore deemed as having been only drafted on that date. There is no way, therefore, for the signatories to have seen the petition when they supposedly signed months ago.

What Sigaw actually did the past few months was circulate Signature Sheets without showing to the voter-signatories the actual petition, which makes all the supposed millions of signatures void and completely useless. Even presuming that Sigaw attached to the Signature Sheets the draft Petition found in its website, the signatures are still void since the Petition they filed is no longer the same to their draft. Atty. Lambino deleted from the Petition he filed, Par. C, Sec. 4 (3) of its draft petition declaring that “ Senators whose terms of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of June 2010”. Since the current petition is no longer exactly the same as the draft shown to the signatory during the signature drive, all the signatures are null and invalid.

Party-List System Abandoned

CODAL takes exception to claims that the Party-List system is intact under the proposed Constitution, since Atty. Lambino’s proposed amendment of Art. VI, Sec 2 states that:

“Section 1. (1) The legislative and executive power shall be vested in a unicameral Parliament which shall be composed of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province must have at least one member.

This new Parliament will be composed of representatives from districts, provinces and cities depending on the number of inhabitants and not from sectors or party list groups. Unlike the 1987 Constitution which expressly provides that Congress shall be composed of district representatives and the party list, this proposal has deleted that express provision. At most, the party list system may only be provided by law, not by the Constitution, and therefore subject to the whims of politicians acting as parliamentarians.

Impossibility in Impeaching Pres. Arroyo

The Lambino proposal also increases from one-third to two-thirds the number of votes required to impeach the President, as shown in its proposed Transitory Provision: Section 1. (1) The incumbent President and Vice-President shall serve until the expiration of their term at noon on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a vote of two thirds of all the members of the interim parliament.

Considering that the Opposition failed to even muster the 1/3 votes in the recent impeachment proceeding, raising the threshold to 2/3 virtually protects Pres. Arroyo from any impeachment until 2010.

Public Hearing

CODAL reiterates its call for the COMELEC to hold its deliberation on the Lambino petition in public to ensure transparency if only to disabuse the public perception that it favors charter change. Holding its deliberations in secret will only enflame the issue further and cause further instability.

Reference Person Atty. Neri Javier Colmenares

Date August 30, 2006

Opposition to the Petition for a People’s Initiative

REPUBLIC OF THE PHILIPPINES

COMMISSION ON ELECTIONS

MANILA

COUNSELS FOR THE DEFENSE OF

LIBERTIES (CODAL) and

ATTY. FLORISA ALMODIEL

Oppositors

- versus - Case No. EM (LD) 2006-001

RAUL L. LAMBINO and ERICO B. AUMENTADO,

Petitioners

x---------------------------------------------------------------x

Opposition to the Petition for a People’s Initiative

OPPOSITORS, by counsel, respectfully state:

Prefatory Statement

From a Media Report:

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.”[1]

No one went to the Supreme Court. So, Sigaw had to use the Comelec to go up to the Supreme Court—filing a Petition with the Comelec in the hope that the Comelec will immediately dismiss the petition at least before September 14. You see, Sigaw expects a favorable decision from the Supreme Court.

But that is not all. SIGAW hopes that the Comelec will not only decide to dismiss the Petition but will also take cognizance of the Petition, in violation of the injunction of course, and look into the ‘authenticity’ of the signatures and the regularity of the certifications and declare that :

“ We find the signatures authentic as per certification of our Election Officers, and that Petitioners have fulfilled the constitutional requirement of garnering 12 % of the total number of registered voters represented by at least 3% in each legislative district. However, since there is an injunction from the Supreme Court, we have to DISMISS the Petition.”

Sigaw wants the Comelec to use the “presumption of regularity” principle on the certifications issued by local Comelec personnel and therefore merely NOTE all objections as to the authenticity of the signatures, similar to what transpired in the 2004 presidential elections.

Armed with a watertight Comelec decision which declared the signatures in order even if no objection to the same was allowed, SIGAW now expects the Supreme Court to reverse Santiago, and, since the COMELEC has verified the signatures, all that the Supreme Court has to do is to remand the case to COMELEC and order it to set the plebiscite, WITHOUT ENTERTAINING ANY OBJECTIONS RELATIVE TO FRAUD, which SIGAW hopes will take place in January 2007 at most.

But SIGAW made a fatal mistake. One of the many actually. It filed the petition with only two petitioners, admitted that the draft petition was crafted only on August 25, 2006, and what the alleged ‘millions’ of signatories signed was actually not the Petition but ‘signature sheets’.

Will the Supreme Court and the Comelec follow the script? Many believe Sigaw will be in for a big surprise. The third round of the Chacha Battle may still end in a resounding defeat for those who pine for “no election” in 2007.

The Parties

Petitioners

1. Petitioners Raul L. Lambino and Erico B. Aumentado are Filipino citizens, of legal age, registered voters, and with office addresses at Autoland Building, 1616 Quezon Avenue, South Triangle, Quezon City, and at Union of Local Authorities of the Philippines, Unit 2803 Summit Tower, 530 Shaw Boulevard, Mandaluyong City, respectively.

Oppositors

Oppositors are The Counsels for the Defense of Liberties (CODAL), an organization of civil libertarian lawyers, law students and paralegals who are Filipinos, of legal age, and with office address at # 1 Matatag cor. Maaralin Streets, Central District, Quezon City and ATTY. FLORISA ALMODIEL, a member of CODAL, Filipino, of legal age, a registered voter and with office address at # 1 Matatag cor. Maaralin Streets, Central District, Quezon City.

Statement of Facts

1. The Supreme Court on 19 March 1997, the Supreme Court, in the case of Santiago v. COMELEC, declared that Republic Act No. 6735 was inadequate to cover the system of initiative on amendments to the Constitution and failed to provide sufficient standards for subordinate legislation. The Supreme Court further declared unconstitutional COMELEC Resolution No. 2300 insofar as it prescribes rules and regulations on the conduct of initiative or amendments to the Constitution, and permanently enjoined this Honorable Commission from “entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system” of people’s initiative.

2. On 25 August 2006, Petitioners filed herein Petition with this Honorable Commission, invoking their “constitutional right to propose amendments to the 1987 Constitution by way of people’s initiative.” Petitioners allege that the provisions of Republic Act No. 6735 are “sufficient enabling details for the people’s exercise” of the “power” of people’s initiative.

3. Petitioners claim in Paragraph 2 of their Petition that they are filing said Petition “together with the registered voters who have affixed their signatures to the Signature Sheets”. The admission by petitioners that the Petition was crafted only on 25 August 2006, and that the other registered voters merely signed “signature sheets” must be seriously noted as these are FATAL to the Petition.

4. Petitioners are proposing the “amendment” of Articles VI and VII of the 1987 Philippine Constitution, inter alia:

(a) The “amendment” of Sections 1-7 of Article VI of the Constitution to creating a unicameral parliament, not only composed of District Representatives but also by Provincial Representatives and City Representatives.

(b) It also amended the Constitution by deleting the constitutional provision establishing the Party List system as part of the legislature and merely reduced its existence a creature of law, if the new legislature so desires to maintain it.

(c) The “amendment” of Sections 1-7 of Article VI of the Constitution to extend the term of office of Members of Parliament from three (3) years to five (5) years, and to eliminate the restriction on the number of times such Members of Parliament can run for reelection;

(d) The “amendment” of Sections 1-4 of Article VII of the Constitution, to designate the President as the Head of State, with the executive power to be exercised by the Prime Minister who shall be elected by a majority of all the Members of Parliament from among themselves.

(e) The inclusion of a new Article XVIII entitled “Transitory Provisions” to allegedly ensure “an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of government. Such “Transitory Provisions” provide for:

(i) The expiration of the terms of office of the incumbent President and Vice-President on 30 June 2010;

(ii) The creation of an “interim Parliament” which shall be composed of the incumbent Vice-President, the incumbent members of the Senate and House of Representatives and incumbent members of the Cabinet who are heads of the executive departments, which shall continue until the members of the “regular Parliament” shall have been elected and shall have qualified;

(iii) The designation of the incumbent Vice-President’s duties as convenor of the “interim Parliament” and presiding officer over its sessions for the election of the interim Prime Minister and until the Speaker shall been elected by a majority vote of all the members of the interim Parliament from among themselves;

(iv) The designation of the incumbent President’s duty to nominate, from among the members of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof;

(v) The designation of the interim Prime Minister’s duty to oversee the various ministries and perform such powers and responsibilities as may be delegated by the incumbent President;

(vi) The assumption by the interim Prime Minister of the powers and responsibilities of the incumbent President in the event of death, permanent disability, resignation or removal from office of both the incumbent President and Vice-President;

(vii) The Second Charter Change through the convening of the interim Parliament within forty-five (45) days from ratification of the proposed Constitutional “amendments” to further propose another round of “amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization, and a strong bureaucracy”;

(viii) The conduct by the interim Parliament of an election of the members of Parliament, which shall be synchronized and held simultaneously with the election of all local government officials;

(ix) The designation of the incumbent Vice-President’s duty, as member of Parliament, to immediately convene the Parliament and initially preside over its session for the purpose of electing the Prime Minister, who shall be elected by a majority vote of all the members of Parliament from among themselves; and

(x) The duty of the duly elected Prime Minister to continue and exercise and perform the powers, duties and responsibilities of the Interim Prime Minister until the expiration of the term of the incumbent President and Vice-President.

5 Petitioners are therefore requesting this Honorable Commission to find their Petition sufficient in form and in substance, and to submit the following proposition to the Filipino people by way of a plebiscite:

“Do you approve the amendment of Articles VI and VII of the 1987 Constitution, changing the form of government from the present bicameral-presidential to a unicameral-parliamentary system, and providing Article XVIII as transitory provisions for the orderly shift from one system to the other?”

Arguments

I

THE INSTANT PETITION MUST BE DISMISSED AS IT DOES NOT CONFORM WITH THE CONSTITUTIONAL REQUIREMENT THAT FOR A PEOPLE’S INITIATIVE TO BE VALID, IT MUST BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH “A PETITION OF AT LEAST TWELVE PER CENTUM OF THE TOTAL NUMBER OF REGISTERED VOTERS”

II

THE PETITION MUST BE DISMISSED BECAUSE FATALLY DEFECTIVE AS TO FORM AND SUBSTANCE, HAVING VIOLATED COMELEC’S PROCEDURAL RULES AND FOR ITS FAILURE TO ACHIEVE THE 12% AND 3% REQUIREMENT DUE TO FRAUD AND OTHER VIOLATIONS OF ELECTION RULES

III

ASSUMING ARGUENDO THAT THE PEOPLE’S INITIATIVE CAN PROCEED, THE PETITION MUST BE DISMISSED AS IT VIOLATES THE CONSTITUTIONAL PROVISION THAT ONLY ALLOWS A PEOPLE’S INITIATIVE TO UNDERTAKE AMENDMENTS AND NOT REVISION

IV

THE COMMISSION ON ELECTION IS PROHIBITED BY THE SUPREME COURT IN SANTIAGO V. COMMISSION ON ELECTIONS, 270 SCRA 106 (1997), FROM ENTERTAINING OR TAKING COGNIZANCE OF A PETITION FOR A PEOPLE’S INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION.

Discussion

I

THE PETITION MUST BE DISMISSED AS IT DOES NOT CONFORM WITH THE CONSTITUTIONAL REQUIREMENT THAT FOR A PEOPLE’S INITIATIVE TO BE VALID, IT MUST BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH “A PETITION OF AT LEAST TWELVE PER CENTUM OF THE TOTAL NUMBER OF REGISTERED VOTERS”

The Constitution provides in Art. XVII, Sec. 2 that :

Sec. 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. (underscoring supplied)

The Constitution is clear. The ‘twelve percent’ of the total number of registered voters referred to must be the petitioners in a petition for a people’s initiative. In this case, there are only two Petitioners—Mr. Lambino and Mr. Aumentado. The Petition cannot, therefore, survive because the registered voters who compose the “twelve per centum” required by the Constitution are not the Petitioners in the subject Petition.

Furthermore, the verification and certification against forum shopping were not signed by the registered voters who compose the required “Twelve Per Centum”. These registered voters therefore do not attest that the Petition is true and correct of their own personal knowledge or based on authentic record. Even if Mr. Lambino and Aumentado declare that no similar actions were filed in another tribunal, the ‘Twelve Per Centum” made no such certification. All these are fatal to the Petition. After all, it is possible that the ‘twelve per centum’ did not know some or all of the allegations in the Petition, especially the proposed ‘amendments’. It must be noted that the verification required in a peoples initiative is not merely to see if the signatures “seem to appear” similar to that in the Voters Registry, but on whether the signatories actually understood the Petition including its proposed “amendments” and attest to the correctness of its contents, including the proposed “amendments”. This is what a verified petition means.

Petitioners’ claim that they filed the Petition “together with the registered voters who have affixed their signatures to the signature sheets’ will not help, but on the contrary, will only drown this Petition further in the morass of fatal defects. Petitioner admits that the registered voters composing the twelve percentum signed on ‘signature sheets’ rather than on the Petition, as required by the Constitution. Not only did they fail to alleged that the signatories saw, read or understood the Petition when they signed but Petitioners even admitted that said signatories did not sign the petition but mere “signatures sheets”.

Lastly, and this is the cruel blow to Petitioners’ ambition, there was actually no opportunity at all, for the signatories to sign the Petition, since as the Petitioners themselves admit, the Petition was only drafted on August 25, 2006 ! It is, therefore, impossible for the “twelve percentum’ to have seen the petition, much less understood its contents, if it has not been drafted until August 25.

A genuine and valid petition must have been drafted and finalized long before the signatories were made to sign. There would have been no problem had the instant Petition been dated and crafted on August 25, 2005, or even August 25, 2001, for surely you can draft your proposed Petition and campaign for three or four years among the registered voters. That Petition would still be valid, since there is no time limit as to the period for the signature drive. It is impossible, however, for the Petitioners to claim that they drafted the Petition on August 25, 2006 on the same day that they were able to get millions of registered voters to sign.

Petitioners cannot now belatedly claim that when the signatories signed the ‘signature sheets’, they were actually attached to herein Petition because that would be perjury, a serious offense that merits criminal prosecution and disbarment. After all, any one of the alleged 8-10 million ‘signatories’ can attest that no such thing happened. Surely, no charter change advocate would risk being respondents in hundreds of criminal and administrative cases that will definitely be filed against them should they commit perjury.

Petitioners cannot belatedly insist that a draft Petition was attached to the signature sheets when the latter were signed. Not only is this another case for perjury but also because, a draft petition is not the Petition contemplated by the Constitution. Furthermore, Petitioners now have the burden of proving that said draft petition is EXACTLY the same as herein Petition. If a single word or provision in the draft Petition they may claim to have attached to the signature sheets has been deleted in the Petition they filed before this Commission, then the entire Petition dies a violent death since it is no longer the same as the one signed by the signatories. If the current petition no longer contains a provision in the supposed draft Petition such as, for example, the deletion of the provision stating that “Senators whose terms end in 2010 shall be members of the Interim Parliament” such omission is fatal to the Petition and this Honorable Commission has no recourse but to dismiss it with a friendly advice for Petitioners to conduct a signature campaign one more time or file another Petition in the future.

Lastly, this Honorable Commission, even if such claim were now made by Petitioners, cannot give credence to such claim, since the Petition on its face has already expressly admitted that it was drafted on August 25 2006 and that the ‘signatories’ signed mere “signature sheets” and not herein Petition.

For its failure to follow the constitutional requirement under Section 2, Article XVII, the instant Petition should be dismissed.

II

THE PETITION MUST BE DISMISSED BECAUSE IT IS FATALLY DEFECTIVE AS TO FORM AND SUBSTANCE, HAVING VIOLATED COMELEC’S RULES ON PROCEDURE AND FOR ITS FAILURE TO ACHIEVE THE 12% AND 3% REQUIREMENT DUE TO FRAUD AND OTHER VIOLATIONS OF ELECTION RULES

COMELEC rules require Petitioners to submit 12 sets of their petition just like anyone who files similar Petitions with the Comelec. In the instant Petition, the Petitioners did not file the proper number of copies, together with the attachments and supposed millions of signature that should support the petition. Oppositors were required by this Honorable Commission to submit 12 copies of this Opposition together with its annexes and other attachments. Petitioners on the other hand, failed to submit 12 copies of the annexes including the alleged millions of signatures they have attached to their Petition.

Secondly, the Certification issued by election officers of the legislative districts do not conform to the constitutional requirement of assuring that at least 12% of the registered voters nationwide with at least 3% of the voters in a legislative district. These officers did not see the signatory voter actually sign the signature sheet, and not being experts on the matter, could not have certified that the signatures are actually the signatures of the signatories. Any certification that a signature ‘seems to’ or ‘appears to be’ the signature of the registered voter is not the certification required. This is the reason why, the Comelec implementing rules on people initiatives require signature stations, since it is the only way for a Comelec personnel to actually verify both the signature of the registered voter and the fact that he indeed read the Petition and understood it.

Thirdly, Petitioners claim that all the signatories are ‘residents’ and ‘registered voters’, despite findings in many areas such as Makati City that there are signatories who have migrated abroad (and therefore are not “residents”) or have died (and therefore, are no longer registered voters). Petitioners therefore failed to achieve the 12% and 3% requirement in the Constitution.

Petitioners cannot claim a presumption of regularity of the Certifications because there is no common, official and regular guidelines in the verification procedure resulting in the use, by the various Comelec election officers of different procedures that are irregular and invalid. There can be no presumption of regularity in the said certification since the process of generating the signatures and the verification of the same was attended by fraud or irregularity, and there was no transparency in the undertaking such as notice to the possible Oppositors, thereby putting into question the credibility of the result and the validity of the certification by local Comelec officials.

Furthermore, the content of the Petition itself is totally incomprehensible to the supposed signatories, as even lawyers, and possibly this Honorable Commission would find the proposals full of vague provision that cannot pass either in the signature drive or in a plebiscite.

What does , for example, Par. C, Sec. 2 of the Petition’s proposed amendment mean? It states that “with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim up to 26, all other sections of Article VI are hereby retained and renumbered sequentially…unless they are inconsistent with the parliamentary system”. Who decides whether they are inconsistent with the parliamentary system ? Surely not the ‘registered voters’ composing the 12 per centum.

What does, Par. C, Sec. 3 actually mean when it stated that “all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 thereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government”. Oppositors are sure the supposed millions of signatories do not understand how such ‘all other sections of Article VII’ will look after someone has decided that they are inconsistent with ‘Section 1”.

And what is this provision in Par. C Section 4 which states that :

(3) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy.

Arguendo, did the supposed millions of signatories, (and even those who will vote in a plebiscite), understand that when they approve the current “amendments” they are also actually approving another process for the ‘amendments to, or revisions of,’ the Constitution they have just ratified? Do the signatories know that there are two “amendments” and ratifications that will result from the current campaign for charter change ?

The abstract or question posed in the petition, does not sufficiently describe the issue being asked of the electorate nor can the electorate’s vote of a yes describe his intention. What if he or she wants a parliamentary form of government but does not want a unicameral one, or a German model instead of the French model? Should she vote YES? If so, then the plebiscite cannot and will not reflect his or her will.

Voting NO does not address the problem, since it does not reflect that particular voter’s will, which in this case, actually favors a shift to a parliamentary system. No country in the world has burdened its electorate in a plebiscite that includes the amendment of at least FIFTY FIVE SECTIONS of their Constitution, such as those contained in the instant petition. Should the people’s initiative be allowed, the new Constitution will always be a questioned document, its credibility and therefore authority subject to disrespect and mistrust. The process of amending a Constitution is as important as the content of the proposal.

Due to the vagueness not only of the Petition, but even the proposed ‘amendments’ contained in the petition, this Honorable Commission cannot allow such a Petition to become subject of a plebiscite. The Petition cannot be granted if only for any of the above fatal defects.

III

ASSUMING ARGUENDO THAT THE PEOPLE’S INITIATIVE CAN PROCEED, THIS PETITION MUST BE DISMISSE IT VIOLATES THE CONSTITUTIONAL PROVISION THAT ONLY ALLOWS A PEOPLE’S INITIATIVE TO UNDERTAKE AMENDMENTS

The 1987 Constitution states that:

ART. XVII AMENDMENTS AND REVISION

“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.” (underscoring supplied)

The very title of Article differentiates an amendment from revision.

Unlike Section 1, which allows for a revision to, or an amendment of the Constitution, Section 2 on peoples initiative carefully withdraws the power to revise.

This Petition will amend two major articles containing FIFTY-FIVE PROVISIONS and will add a Transitory Provision that will allow, inter alia, for no elections in 2007, a constituent assembly that will start amending the new Constitution within 45 days, members of the Cabinet to sit in Parliament without having been elected to the same, and an Interim Prime Minister who will wield the dual powers of head of government and state once Pres. Gloria Arroyo and Vice-President Noli de Castro die or are impeached, and an extension of terms for the entire government, cannot surely be called a mere ‘amendment’ to the Constitution. Surely, amending the Constitution in order to have our entire government become an UNELECTED GOVERNMENT, is so fundamental a shift in constitutional principles to be described as a mere amendment.

This Petition must be dismissed since it proposes a revision of the Constitution, in violation of Art. XVII, Section 2 of the 1987 Constitution.

III

THE COMMISSION ON ELECTION IS PROHIBITED BY THE SUPREME COURT IN SANTIAGO V. COMMISSION ON ELECTIONS, 270 SCRA 106 (1997), FROM ENTERTAINING OR TAKING COGNIZANCE OF A 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.

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; xxx [2]

So far, Congress has tarried. No law has been passed to replace the invalidated initiatives law.

The Solicitor General himself Eduardo Nachura, when he was a member of the 12^th Congress filed a bill that will implement the constitutional provision on Initiative. This is an open admission by the main defender of the Petitioners, that indeed, there is no existing law that will allow for a people’s initiative.

There are three bills currently pending in the Senate, filed by Sen. Richard Gordon, Sen. Mirriam Santiago and Sen. Loi Ejercito Estrada. Again, another admission of the fact that indeed, nothing has changed since the Santiago ruling—there is no existing law to implement the people’s initiative. And therefore, this Commission has no jurisdiction to entertain any petition on the people’s initiative and has no authority to order the verification of the signatures therein.

PRAYER

Based on the foregoing, it is respectfully prayed of this Honorable Commission to:

1. DISQUALIFY CHAIRMAN BENJAMIN ABALOS from participating in the deliberation and decision on herein petition, having publicly pre judged the issue and supported the legitimacy and constitutionality the verification of signatures in the subject petition, a major issue that will be decided upon by the Commission.

2. DISMISS the Petition for being unconstitutional and violative of the permanent injunction by the Supreme Court. Due to the Supreme Court’s ruling prohibiting the Comelec from entertaining and taking cognizance of any petition for a people’s initiative, we further pray that the Decision dismissing the Petition should not DISCUSS OR RULE ON THE SUFFICIENCY OF THE SIGNATURES AND THE VALIDITY OF THE CERTIFICATION ISSUED THEREIN, since tackling the FACTUAL BASIS OF THE PETITION IS ESSENTIALLY AND ACTUALLY TAKING COGNIZANCE OF THE PETITION. The Commission or any election personnel in the field CANNOT RULE ON THE VALIDITY OF THE SIGNATURES AND THE FACT THAT NO FRAUD WAS COMMITTED IN PROCURING THESE SIGNATURES as this is in direct violation of the injunction.

In the ALTERNATIVE, should the Commission tackle the issue of the sufficiency of the required signatures and fulfillment by the petition of the 12%-3% constitutional requirement, Oppositors pray that the Commission look into the signatures presented and allow Oppositors the opportunity to object against the admission of any signature not deemed authentic by Oppositors.

3. DISMISS the petition as it was not filed by the “12 of the total number of registered voters” as required by the Constitution, it seeks to revise the Constitution rather than merely amend it, and for Petitioner’s violation of the various election rules and laws, both procedural and substantive.

4. NULLIFY the certification issued by the local COMELEC officers in relation to the Petition, for having been issued in violation of the permanent injunction imposed by the Supreme Court, and being constitutive of an illegal expenditure of government funds and resources.

Other forms of relief, just and equitable, are also prayed for.

28 August 2006, Pasig City for City of Manila.

Counsel for the Oppositors

MARVIC M.V.F. LEONEN

Roll No. 35226 [5-28-1988]

PTR No. 7355588 [2-3-2006, QC]

IBP No. 674541 [2-3-2006, QC]

NERI JAVIER COLMENARES

IBP 673655 02-20-06

PTR No. 7154810, 02-20-06

Roll No. 43060

No. I Matatag corner Maaralin Streets

Central District Quezon City

Email: ncolmenares@yahoo.com

MANIFESTATION

Pursuant to Rule 13, section 11 of the Rules of Court, Opposers respectfully manifest that the Petitioners were served their copies of this Opposition by means of registered mail because of the lack of messengerial staff to effect personal service, the lack of material time, and the considerable distance between the parties’ respective offices.

Neri Javier Colmenares

Copy furnished:

DEMOSTHENES DONATO

Counsel for Petitioner Raul Lambino

Autoland Building

1616 Quezon Avenue

South Triangle, Quezon City

ALBERTO AGRA

Counsel for Petitioner Erico Aumentado

No. 12 Fourth St

Saint Ignatius Village Quezon City
REPUBLIC OF THE PHILIPPINES )

_______________, METRO MANILA ) S.S.

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, FLORISA ALMODIEL, of legal age, Filipino, a registered voter, and with office address at No. 1 Matatag corner Maaralin Streets after having been sworn in accordance with law, hereby state that:

1. I am one of the Opposers in the foregoing Opposition;

2. I have read the contents of the foregoing Opposition and I attest that the contents of the same are true and correct of my own knowledge and on the basis of authentic documents in my possession;

3. I attest that I have not commenced any other action or proceeding, involving the same issues subject of this present Opposition, in the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency;

4. To the best of my knowledge, no such action or proceeding is, or remains, pending in the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency.

5. If I should hereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or the different divisions thereof, or any other tribunal or agency, I undertake to promptly inform this Honorable Court of that fact within five (5) days from such notice.

________________________

florisa almodiel

SUBSCRIBED AND SWORN TO before me this ___ day of August 2006 in ___________________ affiant exhibiting to me her Community Tax Certificate No. 18883274 issued on 4-21-06 in Marikina City

Doc. No. _____;

Page No. _____;

Book No. _____;

Series of 2006.

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

^[2] Santiago v. COMELEC, 270 SCRA, at ___.

CODAL SET TO OPPOSE SIGAW PETITION: COMELEC SHOULD ALLOW OPPOSITION AND PUBLIC HEARING

CODAL expresses its commitment to battle the petition for a people’s initiative that Sigaw ng Bayan will file every step of the way. According to the game plan of pro chacha advocates, SIGAW will file a petition with the COMELEC which will immediately dismiss it due to the permanent injunction, so that SIGAW can immediately go up to the Supreme Court. They then expect the Supreme Court to immediately abandon Santiago vs. Comelec and hastily allow the setting of a plebiscite without any opportunity for opposition. This scheme should not be allowed and must be frustrated at every turn. The Commission on Election is urged to allow those opposing the Petition to be heard before it decides on the issue.

SIGAW Petition is Illegal

The Petition of SIGAW is illegal, as many of the signatures it presented to the COMELEC for verification were not only procured though fraudulent means, but also, many of these signatures were manufactured signatures of dead people or those who have migrated abroad. CODAL, even if we do not believe SIGAW is capable of filing its petition today attaching 10 million signatures as they announced, challenges SIGAW to submit to the COMELEC, together with its Petition, all the supposed millions of signature they were able to procure rather than the mere certification from district Comelec officers. This will give Oppositors the opportunity to scrutinize each and every signature to expose the fraud.

CODAL will also prove the illegality of the petition by questioning the funding of Sigaw, an amorphous NGO that does not have a clear office address, but has the capacity to launch expensive media campaigns and hold forums in almost all the cities and provinces nationwide.

CODAL will also contest the public funds used by local officials in traveling to and from Sigaw activities as misappropriation and therefore a violation of the anti graft law. They must be held to account for the sources of their funding.

SIGAW petition is violates the Constitution and the Supreme Court Decision in Santiago

Firstly, the Constitution only allows a people’s initiative to amend, but not revise, the Constitution. The Sigaw proposal intends to revise the 32 provisions under Article VI on Congress, 23 provisions under Article VII on the President and Vice President and the 27 provisions under the Transitory Provision or a total of at least 82 provisions. This is an overhaul or revision of the 1987 Constitution, which a people’s initiative does not have the power to carry out. It is impossible for signatories, even if they are lawyers, to comprehend the impact and implications of revising 82 sections of the Constitutions thereby nullifying the signatures attached to the SIGAW petition.

Secondly, there is no enabling law as required by Art. XVII, Section 2 which states that ‘Congress shall provide for the implementation of the exercise’ of the right to peoples initiative. Even the Solicitor General, Eduardo Nachura, when he was a congressman, filed a bill proposing an enabling law for a people’s initiative. This is an admission by the very person tasked to defend charter change in courts that there is indeed no enabling law for a people’s initiative. It must be noted that Solicitor General Nachura’s bill recommended that the proposed question in a peoples initiative must not exceed 100 words, again an admission that such an initiative cannot propose complicated amendments beyond the comprehension of ordinary people.

Thirdly, the Supreme Court has permanently enjoined the COMELEC from entertaining any petition on a peoples’ initiative absent any enabling law.

Pres. Arroyo cannot be impeached next year under the new Constitution

CODAL asks voters whose names appear on the SIGAW list to immediately go to the COMELEC and withdraw their signatures from the list should SIGAW file its petition. The Constitution will not only entrench Pres. Gloria Arroyo’s term until 2010 but will also grant her more powers including the requirement of two thirds vote in the House of Representative before she can be impeached, not just 1/3 as currently required, thereby making it impossible for Pres. Arroyo to be impeached next year. It will also allow her to stay on as Prime Minister beyond 2010. It will cancel the elections in 2007 and will immediately convene the interim parliament to constitute itself as a constituent assembly to further amend the Constitution and provide more damaging economic and political policies. The battle on charter change therefore, is a battle not only between what is legal and illegal but also on what is moral and immoral, requiring the active participation of the people from all walks of life.

Reference Person: Atty. Neri Javier Colmenares

COMELEC HYPOCRICY CONDEMNED: URGED TO REVIEW SIGNATURES

CODAL condemns the Commission on Election for colluding with Sigaw ng Bayan, a party to a petition before it, to railroad the approval for a peoples initiative by taking the hypocritical position of dismissing the complaint without allowing the Oppositors to question the signatures. CODAL was informed that COMELEC’s game plan is to dismiss Sigaw’s petition so that Sigaw can immediately raise it with the Supreme Court who in turn is expected to abandon its Santiago ruling. The COMELEC announced however, that it will not allow questions on the authenticity of the alleged millions of signatures. This will cover-up the fraud and deception used in the signature drive for charter change and will be no different from the 2004 presidential canvassing and the two impeachment proceedings where objections were merely “noted” and any evidence of fraud was not allowed to be presented.

CODAL expresses its disgust over the hypocritical stance of Chairman Benjamin Abalos who now claims that Comelec cannot entertain the Sigaw petition due to the Supreme Court injunction, after he allowed the verification of signatures of the Sigaw petition in all Comelec offices nationwide. Comm. Resureccion Borra and Comm. Felix Brawner issued a memorandum ordering the verification of the signatures, which not only shows the duplicity of Chairman Abalos and the COMELEC but also makes them liable for Contempt of the Supreme Court.

CODAL demands that the COMELEC en banc allow objections to the signatures so that Oppositors may be given the opportunity to prove the farce that is the peoples initiative and so that those responsible may be criminally and administratively charged. Again, just like the impeachment, the cover up of the fraud committed in the signature campaign for charter change will only inflame the current instability as another legal arena for redress is closed.

Human Rights Case is Strong: If only allowed in the Impeachment Proceeding

CODAL also takes exception to the position by a lawyer’s group Competent and Responsible Educators for Understanding the Law (CREUL) that the inclusion of human rights violations in the impeachment complaint helped kill the impeachment complaint. Such a position is not only legally and factually baseless but also deceptive and will surely not lead to a competent and responsible understanding of the law.

Firstly, members of the majority have stated, even before they read the Complaint, that the impeachment complaint will lose as the process is a numbers game which means that their vote will depend on whether they are pro-Arroyo or not and not on the charges or evidence presented in the complaint. In fact, nowhere in the Justice Committee report dismissing the complaint was it stated that the impeachment complaint is dismissed because the human rights evidence is weak, a fact which may have escaped CREUL members.

Secondly, the human rights complaint contains direct evidence from witnesses and the victims themselves that the military committed these violations such as the testimony of the daughter of spouses Albarillo who saw her parents taken away and killed by the military and the daughter of Patricio Abalos who saw her father abducted by a unit under Gen. Jovito Palparan headed by Lt. Basquinas, both of whom admitted to her that her father (who remains missing until now) is in their custody. The Elvis case is also a very strong case against the military since the victim of abduction and torture himself survived. He was released by the military from detention after a court ordered them to do so in a habeas corpus case. There are hundreds of documentary and testimonial evidence that could have been presented had Congress allowed the presentation of evidence. Seasoned lawyers know that testimonial evidence is very strong especially if coming from the victims themselves who not only witnessed the crime but also, have no motive to mislead the authorities on the identity of the perpetrators. The fact that these witnesses are afraid of the military makes their testimony more credible. .

If the lawyer’s group contention were true, then logic dictates that Pres. Arroyo and her allies should have allowed the presentation of evidence to expose weakness of the human rights case and destroy forever the allegations of the complicity of the Arroyo government on the political killings. However, fearful of the damage the evidence will create, the House Majority obstinately refused to allow the presentation of evidence.

Lastly, Creul did not know of an existing jurisprudence that may convict Pres. Arroyo for the human rights violations committed by her subordinates. Gen. Yamashita and other war criminals were hanged for command responsibility in war crimes even if there was no evidence showing their direct participation in such based on the following elements:

(i) there is widespread and systematic violation of human rights;

(ii) the troops under the command of the accused were involved or implicated in the same;

(iii) the accused commander, who has supervision and control over the troops, is aware of the above

(iv) the commander failed to stop the atrocities

In fact, the evidence against Pres. Arroyo is stronger since she not only failed to stop the violations but on the contrary, rewarded the perpetrators, even hailing Gen. Palparan during her SONA.

The human rights case against Pres. Arroyo is strong. Credible international institutions such as the Inter Parliamentarian Union (IPU), the International Association of Democratic Lawyers (IADL) the second largest lawyers group in the world, Lawyers without Borders, Amnesty International, World Council of Churches, and even the Philippine Commission on Human Rights found more than sufficient evidence to hold the Arroyo government responsible for human rights violations. Only the allies of the president in Congress and CREUL chose to ignore the evidence, surely a case of careless, irresponsible and incompetent reading of the law.

Reference Person: Atty. Neri Javier Colmenares

PROBE BODY: EFFECTIVE ONLY IF GENUINELY INDEPENDENT, CREDIBLE, TRANSPARENT AND WITH POWERS TO PROSECUTE

CODAL finds unacceptable Pres. Arroyo’s creation of a probe body to investigate political killings without any consultation from the victims and the human rights sector to assure the public that the body is genuinely independent. Although we have condemned Pres. Arroyo, the PNP, the AFP and the DOJ for their silence and inaction in the past five years while the killings were going on, we would have welcomed Pres. Arroyo’s attempt for the creation of a probe body if it is genuinely independent, effective and credible because it is transparent and consultative. Even if CODAL finds it encouraging that the President has essentially abandoned Task Force Usig as it has failed to gain any credibility from the victims and the public, it is condemnable that another body is created without putting up mechanisms that will ensure its independence, credibility and effectiveness, thereby condemning that body to the same fate as TF Usig.

Suspension of public officials who fail to appear and other powers

For any investigating body to be truly independent, it must have fiscal and administrative autonomy from any government institution, especially from the executive. The Commission must have all the powers under Section 37, Chapter 9, Book I of the Administrative Code of 1987 including the power to issue summons and subpoena duces tecum and contempt powers, specifically the power to facilitate contempt sanctions against anyone who refuses to implement that Commission’s order. The President must assure that any member of the AFP, the PNP and any official will appear before the Commission, and that any duly notified executive official who fails to appear will be summarily punished by the President herself with suspension from whatever position or rank until that official appears before the Commission. The Commission’s Secretariat including a legal team of human rights lawyers must also be independent from the executive.

Power to Prosecute 4 categories of human rights violations

Furthermore, the body must not only have the power to investigate the killings, abductions, torture and massacres but also the power to prosecute the perpetrators to ensure that no one will belittle its authority. It must, therefore, be clothe with an inherent deputization from the Justice Department to file the necessary criminal and administrative charges against suspected perpetrators of these very serious human rights violations, specifically the four categories of killings, abductions, torture and massacres. As such, the Commission’s budget should allow it to get the services of human rights lawyers who will conduct such prosecution.

The body, for purposes of credibility, must be acceptable to the victims of human rights violation and must have at least one representative each from the victims and the human rights sector. The Commission on Human Rights must also have one representative sitting in that Commission. The failure to appoint any representative from the human rights sector while appointing representatives from the NBI and the Department of Justice, two institutions which have failed to seriously investigate and prosecute perpetrators of the killings in the past five years immediately puts into question the credibility of the body.

For purposes of transparency, the Commission must be required to transmit regular reports to the President, the respective Human Rights Committees of the House and the Senate, and the victims or human rights groups. The entire proceedings before the Commission must be held in public, and all its documents must accessible to the victims, the suspects and the public in general. Furthermore, before the Commission is established, there must be consultations with affected sectors , organized by the Commission on Human Rights not only to recommend members of that Commission from which the President must chose from but also to ensure that the interest of the victims and those affected by the Commission’s work will be considered in the crafting of the Order establishment such a Commission.

Lastly, Pres. Arroyo must allow the Human Rights Council of the United Nations, including the UN Special Rapporteurs for Extra-judicial Killings and Involuntary Disappearance to gain access to that Commission’s proceedings so that they may monitor its work and therefore assure the international community of the independence and transparency of such a body.

CODAL urges that both Houses of Congress also issue a joint resolution calling for such an independent body and urging the President to dissolve the Commission pending the institution of independent mechanism. CODAL urges President Arroyo to desist from implementing Executive Order creating ‘The Commission to Conduct an Independent Probe on Killing of Media Practitioners and Militant Activists’ and immediately institute the mechanism for a genuine independent probe acceptable to the victims and the public.

Absent mechanisms to ensure independence, effectiveness and credibility through transparency and consultations, the latest probe body will be nothing more than a publicity stunt aimed at pacifying the snowballing criticism of the people and the international community over the political killings, without any serious attempt to identify the perpetrators and the masterminds behind these attacks.

Transmittal of the International Criminal Court Treaty to the Senate

CODAL takes this opportunity to also reiterate its previous call on Pres. Arroyo to immediately transmit the Rome Statute of the International Criminal Court to the Senate so that the Senate may be able to fulfill its constitutional function of concurring or not concurring with the ratification of that treaty. Since that treaty has been ratified by the Office of the President, when Pres. Joseph Estrada signed it on 28 December 2000, failure to submit it to the Senate will only strengthen the suspicion by the international community that Pres. Arroyo is guilty of human rights violations and is therefore afraid of the ICC.

If Philippine courts are unable or unwilling to prosecute human rights violations, the ICC remains a viable venue for redress by victims of human rights violations, especially now that the impeachment proceeding against Pres. Arroyo for human rights violations has been dismissed by the Justice Committee. Pres. Arroyo’s withholding of the treaty from the Senate is not only a violation of the Constitution but also a violation of our good faith obligation under international law to implement treaties signed or ratified by our Presidents. CODAL urges the international community, including the government of the 100 countries who are members of the ICC, to urge Pres. Arroyo to transmit the treaty for concurrence.

Reference Person : Atty. Neri Javier Colmenares (August 21, 2006)

Impeachment Not Purely Political: Dismissal of Impeachment based on Party Affiliation Violates Constitution

CODAL finds abhorrent the declaration by the House Majority of a ‘timetable’ to dismiss the impeachment complaint which means that the current proceeding is a mere side-show as a decision has already been made along party lines. This assertion of the majority stems from the theory that an impeachment proceeding is purely political and therefore a ‘numbers game’ where decisions are made on the basis of party affiliations. Members of the Justice Committee who will dismiss the impeachment complaint on such basis and not on the merits are opening themselves to possible prosecution not only under the Anti-Graft and Corrupt Practices Act but also for violation of administrative law requirements to due process.

It is inaccurate to define the nature of an impeachment proceeding as purely political, where judicial principles on due process and consideration of evidence presented has no place. The claim by members of the House Majority that the impeachment proceeding is a ‘numbers game’ where the impeachment or non-impeachment of a president depends on the number of her allies in Congress has no legal or constitutional basis, and is a bankrupt argument without any attempt at adherence to due process and the principle of making a decision after a careful consideration of evidence. The legal theory of the Majority opens up the possibility that a duly elected president, who continues to have the support of the people, may be impeached simply because he or she does not have the ‘numbers’ in the House. On the other hand, it may result in continued stay in office of a public official who deserves to be impeached, by the simple expedient of having as allies the Majority in the members of Congress. The Constitution grants the power to elect a president to the people, not Congress

Black’s Legal Dictionary defines Political as ‘pertaining to, or incidental to, the exercise of the functions of those vested in those charged with the conduct of government; or relating to the management of affairs of the state”. Impeachment is political in the sense that it may result in the removal of a public officer and therefore affects ‘those in charge with the conduct of government’ or managing the ‘affairs of the state’. It is not political in the crass sense, that members of Congress decide depending on their political affiliation or the decision of their political parties.

The basis for the assertion that an impeachment proceeding requires observance of both the complainants and the respondent’s right to be heard and to due process stem from the Constitution and the general principles of administrative law:

i. The Constitutional enumeration of six grounds for the impeachment of certain public officials requires Congress to look into the basis of an impeachment complaint and consider if indeed fall under the grounds enumerated. Members of the Majority who declare that they will dismiss the impeachment, even if they have not read the same much less examined its evidence, are violating this constitutional requirement. This ‘herded sheep’ mentality to acquit, or its reverse, the lynch mob mentality to impeach, the has no place in a genuine process for accountability of public officials. The Constitution requires Congress to decide only after it has examined the evidence and whether it constitute as proof of violation of one of the six constitutional grounds for impeachment.

ii. By providing for the procedure and the rules on impeachment, the Constitution and even Congress prohibits whimsical decisions on an impeachment complaint based on party affiliations and/or pecuniary and other benefits, since by crafting the rules there is that intention to ensure the integrity of the proceeding and the rights of the parties. By issuing its Rules on Impeachment Congress has in fact admitted that the resolution of an impeachment complaint must follow the standards of fair play and due process including the right of both the complainant and respondent to be heard and the basis or evidence for their positions to be considered. The Article VI, Sec. 3 of the Constitution on procedural rules requires a ‘hearing’. The Complainants must be allowed to present their evidence in a Committee HEARING before a decision can be made on whether there is probable cause to impeach the President.

iii. Outright dismissal will violate due process principles under administrative law which require a careful consideration of the evidence on the merits before a decision is made. Considering that the removal or non-removal of a person from public office is within the purview of administrative law, its general principles of due process applies, including the duty of officers in administrative or quasi-judicial bodies to consider the evidence before rendering a decision. If the removal or non-removal of a clerk requires a quasi-judicial body to consider the evidence before issuing a judgment, there is no reason why similar requirements is unavailing if the subject of removal is highest public official of the land. The Supreme Court has struck down decisions of administrative and quasi-judicial bodies not only for its failure to consider the basis of a complaint, but also, its mere failure to inform the complainant of the reason or basis of its decision. The House Majority cannot go to the citizens-complainants with a decision dismissing the impeachment complaint on the basis that the complainants lack the ‘numbers’. The House must look into the form and substance of the complaint and decide on the merits of the same.

The Constitution and its defined procedure, the Impeachment Rules of the House and the due process principles of Administrative Law require a careful consideration of the evidence before judgment or decision. CODAL urges the Justice Committee to withdraw their ‘timetable’ pronouncements and abandon the theory that impeachment is a purely political act that does not consider the right of the complainants to be heard and present their evidence. The Complainants must be allowed to present evidence to prove the basis of the Complaint. The Constitution and the people require that evidence must be presented so that the justice committee may decide, on the merits, whether to dismiss the complaint or impeach the president. CODAL urges the citizens complainants to file the necessary charges against those who will dismiss the impeachment complaint according to the announced ‘timetable’ and on the basis of party-affiliations and not on the merits.

Reference Person : Atty. Neri Javier Colmenares

Date : August 13, 2006

REFUSAL TO ATTEND HEARINGS ENDANGER OFW EVACUATION: EXECUTIVE OFFICIALS LIABLE FOR CONTEMPT OF THE SUPREME COURT

CODAL is seriously concerned over the government’s continued refusal to allow public officials from appearing in the Senate OWWA Fund investigation in open defiance of the constitutional powers of the Senate and the Supreme Court decision on EO 464.

The Executive Branch’s justification that they have to first attend to the evacuation of OFWs before they appear in any congressional investigation is of no moment, otherwise, the congressional power to investigate in aid of legislation is defeated by merely using executive work as justification.

There is also no legal basis for the claim of Exec. Sec. Eduardo Ermita that Congress must first transmit the questions before an executive official is allowed to testify. The provision he erroneously cited, specifically Article VI, Section 22 of the Constitution pertains to the Question Hour. The Senate investigation is provided for under Section 21 and guaranteed by the Supreme Court EO 464 decision. This not only exhibits a clear misreading of the Constitution but of an unexplained fear of the information the OWWA officials may divulge.

The Supreme Court has upheld Congressional power to summon executive officials in congressional inquiries in the case of Drilon vs. Executive Secretary, when it declared that “when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory x x x While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.”

Should Pres. Arroyo want to prohibit officials from appearing, she must personally or through Exec. Sec. Ermita claim confidentiality through the principle of ‘executive privilege’ as required by the Supreme Court in Drilon :

“Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.”

In invalidating EO 464 the Supreme Court categorically prohibited such unjustified refusal to cooperate as not only violative of the legislative power of Congress but also of the people’s right to information:

“Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value – our right as a people to take part in government.”

CODAL urges Pres. Arroyo to immediately order her officials to appear in the investigation as the efficient and speedy evacuation of OFWs is threatened considering that the issue involves the misuse of funds meant for the evacuation. It must be noted that millions of pesos were allotted before the 2004 elections, through retired general Roy Cimatu, for the evacuation of OFWs during the last US invasion of Iraq. There has been little public knowledge of how these millions were accounted for considering that no evacuation actually took place. It is imperative that use of funds for this latest evacuation be transparent and subject to congressional checks and balance, otherwise, many of the OFWs will be stranded in Lebanon since the supposed funds may not be sufficient or transmitted on time.

CODAL is seriously concerned by Pres. Arroyo’s open defiance of a Supreme Court decision which may lead to a constitutional crisis as this may escalate into an open clash between the Executive branch and the Supreme Court and the Senate. With the refusal of even minor officials from the Professional Regulatory Commission to heed the Senate invitation, it may be a matter of time before an open clash between the Senate and the Executive will erupt, particularly if the Senate will order the arrest of the recalcitrant officials.

CODAL is also afraid that this recalcitrance is preparing the public mind for the President’s refusal to disclose information should an impeachment hearing prosper, despite the Supreme Court’s declaration that even if the President is exempted from appearing in a congressional inquiry, such exemption does not apply to an impeachment proceeding. In Drilon, the Court stated that that: “Only one executive official may be exempted from this power (to summon officials in a congressional inquiry)— the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment”

By usurping and transgressing congressional and judicial powers and prerogatives, Pres. Arroyo’s government is a ‘dictatorship’ under general principles of international law, akin to Pres. Marcos’ usurpation of both the judiciary and the legislature during martial law. This merely strengthens impeachment charges that she used ‘dictatorial powers’ to maintain herself in power.

CODAL asks the Supreme Court to declare Exec. Sec. Ermita, OWWA and PRC officials in contempt for its contumacious defiance of the Court’s ruling. The executive is not above the law, nor is it above the judiciary and the legislature.

Reference Person: Atty. Neri Javier Colmenares

News Report Date: August 9, 2006

HOUSE MAJORITY DEFIES SUPREME COURT DECISION IN FRANCISCO VS. HOUSE OF REPRESENTATIVES

Pres. Gloria Arroyo and her allies in Congress have once again defied the Supreme Court by clearly misinterpreting the Court’s ruling in Francisco vs. House of Representatives when they defined initiation of an impeachment proceedings to mean the “filing, referral and receipt by the Justice Committee” of an impeachment complaint.

The Supreme Court declared in Francisco that an impeachment “proceeding is initiated or begins when a verified complaint is filed and referred to the Justice Committee for action”. Nowhere in the said decision did the Supreme Court require that for an impeachment proceeding to be initiated, the Justice Committee must receive it. CODAL finds Rep. Edcel Lagman’s strange interpretation distressing considering that he is a member of the legal profession and is supposed to be equipped with the knowledge to interpret clear decisions of the Court.

CODAL also finds absurd the theatrical interpretation by a Rep. Douglas Cagas of the term ‘referral’ to include ‘receipt’ using the Readers Digest as reference. Webster and other dictionaries defines refer as ‘to direct to a person or place’, and referral as ‘an act or instance of referring’. The act of referring does not require acceptance by the object of referral. To follow the logic of the majority, no person can be charged with firing a gun unless he hits his target. CODAL finds it regrettable that the impeachment proceedings is held hostage by the senatorial ambitions or other political plans by members of the House.

If the majority followed the Supreme Court definition, the Lozano Complaint is deemed initiated when it was referred by the Speaker to the Justice Committee on July 25, 2005 during the SONA last year. In that case, the one year period would have ended on July 25, 2006 and the valid complaint would be the 7^th Complaint filed by members of Bayan on July 26, something possibly unacceptable to some members of the Majority. A Supreme Court decision, however, cannot be twisted on the basis of bias or ideological differences.

Problems with the Majority Interpretation : Danger to Impeachment Complaints

Firstly, the interpretation is a clear departure, again, from the Supreme Court ruling in Francisco. It must noted that the Majority patently violated this ruling last year, when it insisted that the impeachment complaint was initiated by the mere ‘filing’ of the Lozano complaint on June 27 rather than the ‘referral’ on July 25.

Secondly, this new House definition will allow the staff and other members of the Justice Committee to hold an impeachment complaint hostage by the mere act of delaying or withholding ‘receipt’ of the same. It practically invalidates intent of the Constitution and the rules of the House which requires the Speaker to ‘refer’ an impeachment complaint within 10 session days. The justice committee may not ‘receive’ an impeachment complaint within that 10 day period thereby making the Speaker vulnerable to violation of the rules as a result of the act of Committee personnel.

Thirdly, this definition will sow confusion in the House in regard to bills or resolutions filed. Normally, bills are deemed ‘referred’ on the date when these are referred to a particular committee in the First Reading. With the definition, a bill is only deemed referred once the sponsor manages to have it received by the relevant Committee, a complete departure from the tradition of Congress since it was created in during the Commonwealth period.

Pres. Arroyo’s has set a pattern of persistent defiance of judicial decisions not favorable to government such as prohibiting executive officials from appearing in Senate inquiries despite the Court’s decision invalidating EO 464. Her allies in the House have once again followed suit by distorting another Court decision. CODAL condemns the blatant disrespect and defiance shown by members of the Executive and Legislative branch to Supreme Court decisions and the erosion of the check and balance mechanisms under the Constitution in order to preempt serious investigation on crimes and other impeachable offenses. These acts only prove that the Impeachment Complaint is not only sufficient in form but also sufficient in substance particularly on the charge that Pres. Arroyo used ‘dictatorial powers’ to stay in power.

Reference Person: Atty. Neri Javier Colmenares

News Report Date: August 9, 2006

CREDIBILITY OF IMPEACHMENT PROCEEDINGS AT STAKE: THE LEGAL BASIS FOR THE INHIBITION OF FERTILIZER FUND RECIPIENTS

CODAL calls on Members of Congress, whether from the majority or the opposition, who received funds from the GMA fertilizer project to inhibit themselves from the impeachment proceeding to ensure its credibility. Any hasty dismissal of the impeachment complaint without the inhibition by tainted members may void the entire proceedings. This scenario is analogous to the Galman-Aquino case where the Supreme Court allowed a re-trial despite the finality of a previous decision by a tribunal subsequently found to be biased. The inhibition of involved justice committee members who will decide on the fate of the impeachment complaint is analogous to the inhibition of a judge.

The inhibition of judges perceived to be biased is a regular due process mechanism in the Philippine legal system either in jurisprudence or the Rules of Court. Pres. Gloria Arroyo, through her justice secretary, has asked for the inhibition of judges who ruled against government cases. It is a tool to ensure that decisions are given respect and recognition, not only by the parties but by the public as well.

Inhibition is not only required under Sec.1 of Rule 137 of the Rules of Court but of the Code of Judicial Conduct which provides :

Rule 3.12 A judge should take no part in a proceeding where the judge’s impartiality might reasonably be questioned…

(a) where the judge ..has personal knowledge of disputed evidentiary facts

Canon 2 Rule 2.01 also requires that judges ‘should at all times promote public confidence in the integrity and impartiality of the judiciary’. Members of the House must also ensure the integrity of the impeachment proceeding considering that at stake is the legitimacy of the government.

Since congressmen-beneficiaries have a stake in the issue, it is imperative upon them to desist from voting on the impeachment complaint, which contains the charge of misuse of public funds in the GMA fertilizer scam. The claim by the majority that they found nothing illegal in the use of the funds, despite findings by the Senate that the funds were channeled through fake NGOs and were used to buy overpriced fertilizer which were never received by the farmers, is of no moment. Findings of illegality is not a prerequisite for inhibition. A judge who is a relative up to the 6^th degree of one of the parties in a case before him is required to inhibit, even if there is nothing illegal in having a relative. CODAL is concerned by the lack of decency by some congressmen who want to sit in the impeachment proceedings despite the fact that they have a stake in the outcome of the fertilizer fund case.

The inhibition issue must take precedent over other issues raised by Pres. Arroyo such as the motion to dismiss filed by third parties and the appeal on the 2004 impeachment currently pending before the Supreme Court. Congressmen-beneficiaries of the GMA fertilizer fund cannot vote on the dismissal of the impeachment complaint unless the inhibition issue has been dealt with on the merits.

Reference: Atty. Neri Javier Colmenares, Spokesperson
Date: August 8, 2006