Thursday, November 23, 2006

SIGAW’S “PEOPLES’ INITIATIVE” IS CONSTITUTIONALLY, LEGALLY AND POLITICALLY DEAD: Charter Change Advocates must now abandon moves for charter change

CODAL supports the Supreme Court decision dismissing with finality the Sigaw ng Bayan petition for a “peoples initiative” to change the Constitution. The rules of court prohibit a second motion for reconsideration and we ask the Solicitor General and the other parties to abide by the rule and put the issue to rest.

The peoples’ initiative of Sigaw ng Bayan is legally, constitutionally and politically dead and can no longer be revived for the following reasons:

(i) Sigaw’s proposal for a shift to Unicameral-Parliamentary system was deemed a revision and can no longer be used in any future initiative as it will be dismissed for violating the constitutional restriction limiting initiatives to mere amendments. The opinions of some legal quarters that this issue has not been fully resolved by the Court, falls on its face upon reading the express declaration in Lambino vs. Comelec, to wit:

“ A change in the structure of government is a revision of the Constitution as when three great co-equal branches of government in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of government” (page 37 of the Majority Decision)

(ii) Any similar initiative cannot be entertained by the COMELEC in the absence of an enabling law as required by Article XVII, Section 2 of the Constitution. It is incorrect to construe the Court’s decision as having abandoned Santiago vs. Comelec when it said in passing that ten justices reiterate their position that RA 6735 is adequate law, for the following reasons :

(a) The main issue tackled by the Court in the Petition and the Motion for Reconsideration was whether the Sigaw initiative violated the Constitution, and not whether RA 6735 was adequate. The Supreme Court could not rule on a matter that was not the issue before it, particularly if it pertains to the validity of a certain law. Philippine jurisprudence dictates that the Supreme Court should avoid ruling on the validity of a law unless such is inherently necessary to resolve an issue pending before it. Ruling on the validity of RA 6735 was not necessary in resolving the Sigaw petition.

(b) The Supreme Court did not revisit Santiago vs Comelec and could therefore not abandon a case it did not review. The Supreme Court categorically stated in Lambino vs. Comelec that :

“ The Lambino Group miserably failed to comply with the basic requirements of the Constitution. Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group’s failure to comply with the basic requirements of the Constitution. For following the Court’s ruling in Santiago, no grave abuse of discretion is attributable to the COMELEC.” (page 11, Decision)

It is incorrect to say, therefore, that the Santiago ruling has been reversed.

(c) The Decision merely stated “as a fact” that ten justices reiterate their position that the law was valid. Such statement by the Court was a mere obiter, an aside that does not create constitutional rights or have legal effects. The validity of a law cannot be attacked collaterally considering that the Philippine legal system abides by the stare decisis rule on following precedents. Furthermore, there is a permanent injunction in Santiago which ‘prohibits the Comelec from entertaining any petition for a peoples’ initiative unless an initiative’s law is passed’. No law has been passed and the injunction has not been expressly lifted.

The Court must categorically express the validity of RA 6735, explain why it is reversing Santiago vs. Comelec, and a clearly lift the permanent injunction against the COMELEC. This was not the case in the decision dispensing Sigaws motion for reconsideration. The validity (or invalidity) of any law and the lifting of an injunction cannot be implied, otherwise COMELEC will be left to construe whether the injunction still stands. Article VIII, Sec. 14 of the Constitution declares that :

Sec. 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

Construing the decision to mean the revival of RA 6735 is to rob those opposing Sigaw’s petition the opportunity to argue clearly why RA 6735 is invalid since that was not the issue tackled in the main petition and in the oral arguments. The Supreme Court merely asked the parties to discuss whether the Court should revisit Santiago, and Oppositors argued that it should not. After winning the issue (since the Court decided not to revisit Santiago), it would be unjust if such decision were reversed in the motion for reconsideration without the oppositors being apprised and allowed any opportunity to comment.

CODAL reiterates its position that it is not against a peoples’ initiative to amend the Constitution. However, in the absence of any clear law that regulates such an initiative, that mechanism may be used by politicians and other vested interest for their benefit and not for the people. A clear law that prohibits such abuse is necessary before the same could be exercised.

CODAL also asks members of Congress to avoid another major defeat before the Supreme Court by abandoning its move to force through a “constituent assembly” without the Senate. The unconstitutionality of ‘Con Ass’ is more patent that Sigaw’s initiative considering that the Constitution expressly declares the Philippine Congress ‘bicameral’, and requires all laws to be approved by both Houses of Congress. If changing names of streets require the approval of both Houses, then changing the Constitution requires no less. Since the current moves for charter change do not benefit the people, they will not get the support of the people, including the legal community, and all these moves are, therefore, doomed to fail in the end.

Reference Person : Atty. Neri Javier Colmenares
Date : November 23, 2006