Counsels for the Defense of Liberties (CODAL)

ARROYO CABINET SHOULD DEMAND FIRING OF SEC. GONZALEZ: Sen. Villar and Speaker de Venecia should publicly defend the IPU

2007-04-20T08:00:00.000+08:00

CODAL urges members of the Arroyo Cabinet, Senate Pres. Manuel Villar and Speaker Jose de Venecia to demand the firing of Sec. Raul Gonzalez for issuing a series of statements that show his intolerance and insensitivity as a person and as a public official.

Sec. Gonzalez lambasted a high level delegation led by the Secretary General of the Inter Parliamentary Union (IPU) for merely expressing a Resolution approved by the entire membership of the IPU asking for the release of Rep. Crispin Beltran, curtly telling them ‘if you don’t want to accept my explanation you can go home and tell the whole world what you want’, adding that “I don’t want foreigners dictating on us”.

Sec. Gonzalez was less than candid when he told the IPU the matter is “beyond me” because Rep. Beltran remains in detention due to the DOJ’s persistent objection to his release. In fact, it was the DOJ which sanctioned Rep. Beltran’s warrantless arrest and insisted that Rep. Beltran should not be granted his right to bail despite the very weak evidence against him. Sec. Alberto Romulo of the DFA should insist that Sec. Gonzalez be fired, not only for breaking protocol, but also for further exposing the intolerance of the Arroyo government to dissenting opinions. The Philippines is a member of the IPU and is therefore bound to give its representatives common courtesy. Sen. Villar and Speaker de Venecia are duty bound to the IPU to defend its representatives from the bullying of local government officials. Both should publicly demand the firing of Sec. Gonzalez.

Furthermore, Sec. Gonzalez who was in the US during martial law, is expected to know that under international law, human rights issues are of international concern since the UN promulgated the Universal Declaration of Human Rights and the Philippines is bound under Article 2 of the International Covenant on Civil and Political Rights to take action on human rights violations. He cannot denounce expression of concern over current human rights conditions in the country coming from the UN, European Union and now the IPU, as meddling or dictation from foreigners.

Blaming Peace Corpse Volunteer Julia Campbell

Sec. Gonzalez also made another insensitive remark by stating that Julia Campbell was to blame for her own death because she ‘carelessly’ went hiking alone in the Banaue Rice Terraces. Under international law, the domestic government has the burden of preserving peace and order within its jurisdiction and is obligated to protect foreigners from harm, particularly from criminal elements, while they are within that government’s territory. A municipal government cannot blame aliens who fell victims to local criminal elements since the “responsibility to protect” falls on the government. Sec. Romulo and the US government should demand the ouster of Sec. Gonzalez not only for insensitivity but for his ignorance of international law. Tourism Secretary Ace Durano should take notice of Sec. Gonzalez’ statement, which practically declared Banaue unsafe for tourists. The statements of the Arroyo government vigorously assuring countries which have issued negative travel advisories, of the safety of their nationals in the Philippines, has been exposed as a lie by the voluble Justice Secretary’s admission.

It must be noted that under the Philippine constitutional system, a cabinet member is the alter ego of the President and his actions are deemed the acts of the President unless reprobated or renounced by the President. The statements of the Justice Secretary, unless renounced, is an admission that such reflect the position of the Arroyo government.

CODAL believes that the Justice Department is not only expected to administer justice and the law, but is also expected to know the law. Affected members of the Arroyo cabinet and both Houses of Congress should express concern over the Justice Secretary’s remarks which have affected their respective institutions. Pres. Arroyo should now seriously consider whether it is beneficial to allow her justice secretary continue acting as her alter ego.

USING LEGAL PROCESSES AS TOOLS FOR POLITICAL PERSECUTION: A CRIMINAL OFFENSE

2007-03-13T21:40:00.001+08:00

CODAL strongly condemns the use of legal processes as a tool for political repression. The highly irregular barrage of legal cases filed against Rep. Satur Ocampo and Bayan Muna, forms part of acts of harassment against the opposition such as Rep. Allan Cayetano and Mayor Jejomar Binay that suspiciously escalated during the election period.

Hernandez Doctrine

The inordinate interest of Justice Secretary Raul Gonzalez in filing charges against Rep. Ocampo is a case in point. Under Philippine jurisprudence (People vs. Hernandez), a crime of rebellion absorbs all crimes committed in pursuit thereof. Considering that the government has been stressing that rebellion is a continuing crime, it is strangely irregular for government to be filing complaints for acts constituting rebellion in Makati, Leyte and Nueva Ecija against Rep. Ocampo in violation of the Supreme Court decision in Hernandez. Instead of submitting all evidence and consolidating all cases in the Makati RTC where the rebellion case against the Batasan six is currently lodged, Sec. Gonzalez chose to file it in Hilongos Leyte, more than 100 kilometers from Tacloban, a clear case of harassment and political persecution that will result in Rep. Ocampo’s difficulty in campaigning and defending himself.

The information should never have been filed in the first place considering that the complaint suffers from a fatal defect—the allege crime was committed while Rep. Ocampo was in prison.

The harassment conducted by government not only further weakens the legal institutions, but also endangers the state prosecutors and judges who are now vulnerable to criminal charges and administrative cases before the Ombudsman which will surely be filed by the victims of these harassment cases.

Judges are liable for giving an unjust interlocutory order while the prosecutors and false witnesses are liable for filing unwarranted cases or ‘incriminatory machinations’ and ‘perjury’ under the Revised Penal Code. These are also criminal offenses under Sec, 3 of RA 1319 for ;manifest partiality’. Furthermore, these are also violations of Sec. 261 of the Omnibus Election Code if proven to be a part of partisan political activity.

Selective ‘justice’

This pattern of selective justice can be gleaned from the government’s reluctance to impose sanctions on, or even just investigate, its allies while inordinately pursuing the opposition with all the legal tools in its arsenal.

Sec. Raul Gonzalez refused to at least investigate Usec. Jocjoc Bolante despite massive evidence pointing to his involvement in the ‘fertilizer scam’. AFP Chief of Staff Gen. Esperon ‘investigated’ Gen. Jovito Palparan for his involvement in the political killings merely by ‘phone’. The PNP was not enthusiastic in implementing the warrant of arrest issued by the Senate against PCGG officials. CODAL finds hypocritical and dangerous the government’s alacrity to ‘implement the rule of law’ against the opposition while continuously violating legal rules and jurisprudence. In fact, the acts against the political opposition is a criminal offense under the Revised Penal Code and the Omnibus Election Code which prohibits government officials from engaging in partisan political activity and using public resources in electioneering.

CODAL asks the government to refrain from using legal tools and processes as a tool for political persecution. CODAL asks the legal profession to condemn the prostitution of legal institutions for political harassment. CODAL asks the Supreme Court to resoundingly assert the independence of the judiciary in the midst of attacks against the integrity of the judicial processes.

Urgent Statement of Concern
Date : March 10, 2007

SENATE APPROVED ANTI-TERROR BILL: NOT WATERED DOWN BUT MORE DRACONIAN THAN THE HOUSE VERSION

2007-02-09T10:55:00.000+08:00

District Representatives asked to Declare No Vote During the Election

CODAL wishes to correct members of the Senate who contend that their version of the anti-terrorism bill is watered down. In this instance, the authors of the House version could not outdo Sen. Juan Ponce Enrile in crafting a bill intended to terrorize legitimate dissenters. The claim by opposition Senators that they managed to water down the bill, to justify their approval of the same, is an illusory and untruthful statement. CODAL commends Sen. Jamby Madrigal and Sen. Mar Roxas, the only two senators who voted against the bill for maintaining their principled position despite the absence of support even from pretend human rights advocates like Sen. Joker Arroyo.

The Senate Bill is draconian because it contain the following provisions that are not found in the House version, and in fact, have never been found in Philippine legal history:

I. Under Sec. 26, it allows for House Arrest despite the posting of bail, prohibition of the right to travel and the right to communicate with others

Sec. 26 Restriction on the Right to Travel—In cases where evidence of guilt is not strong, and the person charged is …granted... bail, the court shall …limit the right of travel of the accused to within the municipality or city where he resides. He or she may also be placed under house arrest by order of the court… While under house arrest, he or she may not use telephones, cell phones, emails, computers, the internet or other means of communications with people outside his residence until otherwise ordered by the court.

Considering that the evidence of guilt is not strong, Section 26 violates the suspects constitutional right to travel guaranteed under Section 6, Art. III of the Constitution when it prohibited the travel of a suspect outside his place of residence absent a court order. It also violates Sec. 13, Art. III which grants bail as a right to “ALL persons, when evidence of guilt is not strong” when it allows the house arrest of that person despite posting bail. Worse, it prohibits that ‘suspect’ from communicating through “cell phones, emails, computers, the internet with people outside his residence” a form of incommunicado detention outlawed under Sec. 12 (2) Art. III of the Constitution. This provision virtually punishes a mere suspect even if that suspecte has not been convicted—a draconian provision that tramples on the constitutional presumption of innocence and the right to due process enshrined under Sec. 1 and 14 (2) Art. III of the

Constitution. This not only surpasses the House version, but any law passed even by Pres. Ferdinand Marcos during martial law. Sen. Enrile, with the support of opposition senators, certainly outdid himself in crafting this law.

II. Provides for Indefinite Detention upon orders of an official who is not part of the judiciary

A deeper scrutiny of Section 19 of the Senate Bill shows that indefinite detention is allowed upon the mere approval of a mere municipal official, among others:

Sec. 19—In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a human rights commission or judge of the municipal. . .

Section 19 actually states that a suspect may be detained for more than three days provided a municipal officer, inter alia, of an amorphous ‘commission on human rights’ approves. An ‘official’ who does not have the judicial authority to order the arrest of a person, is empowered by the Senate to order his detention for more than three days, a blatant violation of many provisions under Article III of the Constitution. Worse, that suspect, who is not even judicially charged as an accused, may be detained for more than three days, a clear violation of the Sec. 18, Article VII of the Constitution which provides that “During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

Demand Rejection of ATB During the Campaign Period

The Senate bill contains more repressive provisions on surveillance, opening and freezing of accounts, and other threats on civil liberties which may be used by the executive to persecute dissenters. The above provisions are not only constitutionally infirm but are even violative international human rights law and the principles of international criminal law, which makes the Senate version worse than the House bill, or any other law in Philippine legal history. Attacks against civilians by the likes of Al Qaeda. JI and the Abu Sayyaf are condemnable and must be dealt with decisively. However, the current anti-terror bill will not curtail attacks from these groups and may even inspire more attacks once abused by the executive and the military. The bill, even as it will not strike fear on the ‘terrorists’, will certainly be used to terrorize the opposition. Pres. Arroyo has shown her penchant to misuse laws against her detractors as shown by our experience under EO 464, the CPR policy and Proclamation 1017.

The credibility of the Senate and almost all senators on human rights issues are now tainted if not completely destroyed. CODAL asks members of the legal profession and human rights advocates to launch a campaign for the rejection of the resulting bill once it is again by a lame duck House of Representatives in June. The people must require their district representatives during this election to declare that they will vote no on the anti-terror bill once it is presented in the House for ratification. This is one rare instance when the people must assert a clear position on a national issue from local politicians in a local election. Since the Senate failed to protect the people from this draconian anti-terror bill, it is now up to the people themselves to directly act to force the rejection of the bill.

Reference Person: Atty. Neri Javier Colmenares

Date: February 9, 2007

RELEASE OF SMITH: ABSOLUTE DISREGARD FOR THE JUDICIARY THE SUPREME COURT AND THE CONSTITUTION

2006-12-30T13:06:00.000+08:00

The surreptitious release of Cpl. Daniel Smith, in the middle of the night at that, to the custody of the United States, despite pending litigation in Philippine courts, is not only a violation of the Constitution, but also a complete disregard and disrespect for the judicial branch including the Supreme Court. It is not only a contempt of court, but treachery that signals the complete breakdown of the rule of law.

Pres. Gloria Arroyo has submitted the custody issue to the jurisdiction of the judiciary by intervening in the Court of Appeals and arguing against Judge Pozon’s order. Not only is the Executive without the power to transfer a convict under the custody of the Regional Trial Court, but it is also estopped from doing the same since it submitted the issue to the judgment of the Court of Appeals, and ultimately the Supreme Court. The unilateral action by the Executive is courting a constitutional clash between two branches of government, should the Supreme Court uphold RTC Judge Pozon and order the Executive to confine Smith to the Makati City Jail or the New Bilibid Prisons. The US embassy is a foreign territory under international law, beyond the reach of any Supreme Court order.

Pres. Gloria Arroyo has again committed another culpable violation of the Constitution. Under Sec. 17 and Sec. 5, of Art. VII, 1987 Constitution the President is required to defend the Constitution and execute all laws faithfully.

Under Section 13 of the 1987 Constitution, anyone who commits a capital offense in the Philippines cannot post bail nor be released on recognizance, when the evidence of guilt is strong. Not only were the evidence strong against Smith, but they were sufficient to find him guilty beyond reasonable doubt. Allowing the accused to remain in US custody is releasing Smith on ‘recognizance’ to the US government, clearly not allowed under the Constitution. The Visiting Forces Agreement, or any treaty for that matter, cannot trump the 1987 Constitution.

The US will in fact be violating their obligations under the VFA if they continue exercising absolute custody over the accused as provided in Art. II (VFA):

Art. II It is the duty of the US personnel to respect the laws of the Republic of the Philippines x x x The US Government shall take all measures within its authority to ensure that this is done.

Wrong Appreciation of the VFA

The VFA is unconstitutional under Sec. 25, Art. XVIII of the Constitution which provides that :

Sec. 25. x x x foreign military bases, troops or facilities shall not be allowed in the Philippines EXCEPT UNDER A TREATY CONCURRED IN THE SENATE and, x x x RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING PARTY.

The US has not recognized the VFA as a treaty, and has refused to have it ratified by the US Senate until today. Since, the VFA is not recognized as a treaty by the US, it cannot be the basis for the entry of “foreign troops and facilities” into the Philippines. It is the height of self-humiliation for Pres. Arroyo to insist on calling the VFA a ‘treaty’ while the US refuse to accord it the same level of respect.

Additionally, transferring Smith to the custody of the US violates the VFA presuming the VFA is constitutional. The relevant provision is not Paragraph 6, which discusses the trial stage, but the later provision under Paragraph 10, which appropriately discusses the custody of those convicted and are serving sentence, to wit:

Sec. 10—The confinement or detention by Philippine authorities of US personnel shall be carried out in facilities agreed on by appropriate Philippine and US authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance.

Cpl. Daniel Smith has been convicted, and is now serving sentence. If he loses his appeal in the Supreme Court, the time he spent under detention is counted as part of his sentence under the Rules of Court. Sec. 10 no longer provides for US custody, but merely requires that the US has a say on which facility he will serve his sentence. The facility contemplated under sec. 10 is any of the Philippine prisons, and not a prison facility outside the Philippine jurisdiction. The US Embassy is not a detention facility abd is a foreign territory outside the jurisdiction of Philippine courts.

Unequal Relations under the US Counterpart VFA

The US also signed a counterpart VFA which regulates the entry of Filipino soldiers in the US. The counterpart VFA is strictly and unequally construed against the Philippines.

Under the US VFA, the US can immediately imprison any Filipino soldier who commits a crime in US territory, and may waive said right only upon ‘request’ of the Philippine government, but unlike the Philippine VFA, the ‘request’ may be denied. Article VIII, Sec. 2 of the VFA Counterpart Agreement in the US (VFA Part II) merely requires the US government to request US ‘authorities’ detaining a Filipino to release that Filipino to Philippine custody:

Sec. 2 (VFA II) x x x The (US) Department of Defense will ask the appropriate authorities in the United States having jurisdiction over an offense committed by Republic of the Philippines personnel to waive in favor of the Republic of the Philippines their right to exercise jurisdiction, except in cases where the Department of State and the Department of Defense, after special consideration, determine that United States interests require the exercise of United States federal or state jurisdiction.

Since the US maintains the right to refuse the Philippine ‘request’ for custody, the Philippines should also do the same under the terms of the counterpart agreement. By giving the US the absolute discretion on the custody of a convicted US personnel, immediately clashes with the Constitutional rights of the rape victim, legal provisions on bail and the equal protection clause.

This is the first time when a US serviceman is convicted of rape and allowing the convict to escape punishment is not only unjust on the victim but an insult to Philippine sovereignty. This disparity in treatment is magnified by the fact that arrested Filipino “TNT’s” in the US are immediately detained and deported like cattle for not having a visa, while the convicted Smith stay in comfortable rooms in his embassy.

The Visiting Forces Agreement is unconstitutional. It not only violates the 1987 Constitution’s provisions on deployment of foreign troops, nuclear free Philippines and provisions on sovereignty, among others, but it also violates the Constitution’s provisions on criminal offenses. By not asserting Philippine sovereignty and jurisdiction over the convicted rapist and transferring his custody to a foreign power, in violation of the Constitution, Pres. Arroyo has added one more ground for her impeachment and one more item in the list of crimes she has committed against the Filipino people.

Reference : Atty. Neri Javier Colmenares

Date : December 30, 2006

CODAL CONDEMNS KILLING OF HUMAN RIGHTS LAWYER: Seven lawyers killed this year

2006-12-14T10:49:00.000+08:00

CODAL condemns the brutal killing of human rights lawyer Atty. Gil Gojol and the recent spate of attacks against lawyers and their families. Atty. Gojol has been a human rights lawyer in Bicol since the 1990s and was lawyer to Bicol farmers and many political prisoners charged by the military with acts of rebellion, including Sotero Llamas who was also gunned down this year. He was also counsel to members of the Kilusang Magbubukid ng Pilipinas (KMP) and Bayan Muna. He has been in the so called ‘order of battle’ of the AFP for sometime now due to his militant advocacy for human rights.

No less reprehensible is the killing of Asst. Solicitor General Nestor Ballacillo who was the second lawyer involved in the Piatco-Naia 3 expropriation case to have been assassinated. Seven members of the legal profession were killed this year, mostly by motorcycle riding men, namely:

1. Atty. Gil Gojol who was killed with his driver in Gubat, Sorsogon;about 200 meters from a detachment of the 22nd IB of the Philippine Army;
2. Atty. Nestor Ballacillo who was killed with son, Benedict in Metro Manila;
3. Atty. Froilan Villacorta Siobal who was killed with his wife, Erlinda, in Alaminos, Pangasinan,
4. Atty. Rogelio Montero, who was shot together with his son who is a State Prosecutor in Bulacan;
5. Atty. Carlo Magno Umingga, whose wife was also wounded in the attack in Pangasinan;
6. Pros. Godofredo Pacenio, who was killed in Agusan del Norte; and
7. Judge Sahara Silongon who was killed in Cotabato City.

Human rights lawyers of the Pro-Labor Legal Assistance Center, who are counsels to workers of Hacienda Luisita were trailed by unmarked cars and a motorcycle riding man who was later accosted and identified as Private Rommel Santiago of the Philippine Army. Army General Jovito Palparan is suspected of involvement in many of the political killings. The killing of human rights lawyers such as Bayan Muna counsel Atty. Felidito Dacut and Vice-Mayor Juvy Magsino is part of the unabated political killings that plague to country today meant to eliminate activists, dissenters and their lawyers. Surviving victims of the attack and the families of those killed point to the military as the perpetrators of these crimes. Gen. Palparan headed the army unit in Mindoro when Atty. Juvy Magsino was killed in 2004. He was also head of the Army in Eastern Visayas when Atty. Dacut was killed in 2005.

The Philippines has become one of the most dangerous places for lawyers. Nine lawyers, one judge and one law student were shot and killed in 2005. Twelve judges have been killed under the administration of Pres. Gloria Arroyo, and many of these remain unsolved until today.

The attack against lawyers, including human rights lawyers, is a serious threat not only on the practice of law but also on civil liberties as well, since it deprives the poor and marginalized sectors access to and representation in our courts. Almost all of these attacks have remained unsolved as the police continue to fail to arrest the perpetrators, thereby resulting in impunity and unabated killings. There has been no satisfactory development in the case of Judge Guingoyon who killed almost one year ago. The government has failed to come up with serious leads in the killings of lawyers and activists since 2001.

CODAL calls on Pres. Gloria Arroyo to condemn these attacks against lawyers and order the Philippine National Police to immediately and seriously investigate the killing of lawyers and harassment of other members of the legal profession. We challenge the government to also offer a P 1 Million reward for those who will provide information leading to the arrest of the killers of Atty. Gojol similar to that offered in the case of Asst. Solicitor General Balacillo.

CODAL asks the Supreme Court to intervene and actively press the government to prosecute those involved in these attacks. CODAL asks the Integrated Bar of the Philippines to file a complaint with the United Nations Special Rapporteur on Human Rights Defenders and inform international bodies of lawyers and judges of the current condition in the Philippines considering that the Philippine justice system, including the Melo Commission, is unable or unwilling to seriously investigate these killings and prosecute the perpetrators.

Reference Person : Atty. Neri Javier Colmenares
Date : December 14, 2006

NO ELECTION A CERTAINTY IF CON ASS IS FORCIBLY CONVENED

2006-12-04T13:28:00.000+08:00

CODAL warns Charter Change proponents that their plan to scrap the 2007 elections may lead to a constitutional and political crisis. Speaker Jose de Venecia justified their proposed scrapping of the 2007 elections by admitting that it would be impossible for the Comelec to conduct a plebiscite in February and also conduct the election in May 2007. The Speaker, however, premised his argument on the possibility that cha-cha advocates will get a “yes” vote during the plebiscite. If the people will reject charter change in the plebiscite, there will still be no elections in May 2007, due to the physical and budgetary impossibility of conducting one. The COMELEC budget cannot afford two national electoral exercises, especially if the 2006 budget is reenacted. The failure to hold elections in 2007 should ‘charter change’ be defeated in a plebiscite, will create an unconstitutional government considering that half of the Senate, the entire House of Representatives and all local officials in the country will be “holding over” beyond their constitutional mandate and term, a crisis of unimaginable proportion for the Arroyo government. In fact, Chairman Abalos warned about this crisis in his recent statements before the media, and we quote:
Abalos also warned of a constitutional crisis if there would be no elections next year since there would no longer be a House of Representatives or Senate, because its members could not remain in office in a hold-over capacity.
“I don’t want to be an alarmist but if the 2007 elections don’t push through due to lack of funds, we will have a constitutional crisis because we will have no House of Representatives and a Senate with only 12 members,”

Constitutional Issues against “Con-Ass”

According to a CODAL study the current move in the House to delete from House Rule 105 the provision which states that The adoption of resolutions proposing amendments to or revision of the constitution shall follow the procedure for the enactment of bills is legally and constitutional untenable. While an ordinary bill will require the scrutiny and careful consideration of the House through 3 readings and the passage of a similar bill from the Senate, the House majority cannot explain why amendments to the Constitution need not go through the rigor of that similar process. Such a deletion will only lead to a “con ass’ without the Senate, a violation of Art. XVII, Sec. 1 of the Constitution. Speaker de Venecia and the House majority actually violates its own rules by doing so, since Rule XXV, Sec. 150 of the Rules of the House provide that :
“Rule 150—Any provision of these Rules, except those that are also embodied in the Constitution, may be amended by a majority vote of all the members of the House”

The other constitutional issue against Con-Ass is the fact that a joint session of Congress can only be convened if each of the two Houses issue a joint resolution convening both Houses in a joint session. It cannot be achieved, under the Constitution, by one House ‘inviting’ the other. Absent a Senate resolution calling for a joint session, any Senator who attends the ‘con-ass’ does so in his personal capacity and not in representation of the Senate as an institution. The Senate-less ‘con ass’ is therefore illegal and unconstitutional and will subject those who participate in it to criminal liability. Senators attending the “con ass “ representing the Senate will commit the crime of ‘usurpation of authority” under Art. 177 of the Penal Code which penalizes with prision correccional, “any person who shall knowingly and falsely represent himself to be an … agent or representative of any department or agency of the Philippine government, under pretense of official position x x x without being legally entitled to do so.”

Officials who will remain in office after the expiry of their term in June 2007, is liable under Art. 237 of the Revised Penal Code which penalizes public officials who “continues to exercise the powers and functions of his office…beyond the period provided by law’ with prision correctional and temporary disqualification from holding public office.

Rampage during the Asean

CODAL warns that blatant attempts to ram the passage of charter change through a ‘con ass’ despite the unconstitutionality and illegality of such move will only exacerbate the political instability and increase the unpopularity of Pres. Gloria Arroyo who is perceived as leading the ‘final push’ in tandem with Speaker de Venecia. The pent-up anger of the people will only increase the protest currently being planned during the ASEAN conference.

The ‘con ass’ scenario, whether or not it is approved in the subsequent plebiscite will result in the cancellation of the 2007 elections. The constitutional crisis that looms because of the blatantly unconstitutional attempts to short-circuit the process of amending the Constitution is imminent, unless ‘con ass’ is successfully shelved or defeated.

Reference Person Atty. Neri Javier Colmenares
Date: December 4, 2006

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

2006-11-23T11:49:00.000+08:00

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

CODAL HAILS SUPREME COURT DECISION ON SIGAW PETITION: URGES ARROYO CABINET TO REFRAIN FROM INTERVENING IN THE JUDICIARY

2006-10-30T13:57:00.000+08:00

CODAL hails the Supreme Court decision dismissing the Sigaw ng Bayan petition for a peoples initiative. We commend the eight Supreme Court justices for asserting their independence despite the open and public pressure applied on the tribunal. We urge members of the Arroyo cabinet to refrain from exerting pressure on the justices through public pronouncements that tend to threaten or discredit the Supreme Court decision. We demand that Pres. Gloria Arroyo’s appointment of a new justice to replace Chief Justice Artemio Panganiban should be based on integrity, independence and legal capabilities rather than on his or her position on charter change. We demand that whoever is appointed should inhibit himself from issues related to charter change to erase doubts on the integrity of the appointment and the Court’s final decision on the issue.

Intervention and Pressure

CODAL is seriously concerned by the pronouncements of public officials pressuring or discrediting the Supreme Court considering that, unlike private individuals, these public officials have the resources and influence to pressure the Supreme Court particularly in the appointment of justices. Sec. Raul Gonzalez is possibly the only Justice Secretary ever who publicly discredited the very justice system he administers by declaring that the Court’s decision was ‘railroaded or rushed’ for the personal interest of the justices implying that justice and due process were not served by the decision. We ask Pres. Arroyo to fire Sec. Gonzalez for his shameless intervention on the issue thereby compromising even his position as Justice Secretary. Sec. Gonzalez, who will be appointed to the Interim Parliament under the Sigaw proposed Constitution, should refrain from attacking the decision, including his colleague Sec. Avelino Cruz, since his statements will be self serving considering that he stands to personally gain under the new Constitution as a new member of the Interim Parliament and the resulting Constituent Assembly. CODAL which plans to have public officials investigated and prosecuted for the misuse of public funds on the ostensibly private endeavor called the “peoples initiative” cannot now expect impartial investigation and prosecution by the Department of Justice of those found to have misappropriated public funds because the Justice Secretary has once again prejudged the case.

The Supreme Court decision was legally sound and based on constitutional issues, and not on mere issues of fact as Sigaw wishes to portray. The initiative petition was a revision in violation of Art. VII, Section 2 of the Constitution. The signatories did not sign the petition itself but mere signature sheets as admitted by Sigaw, proof that Sigaw failed to show that the people read or were aware of the contents of the petition. Since this fact was admitted by Sigaw, there was no factual issue that needs to be investigated or ‘tried’ by the Supreme Court. It is an entrench legal principle that the one who alleges has the burden of proving the allegation. Since Sigaw failed to prove that the petition was read by the signatories, then it is imperative on the Court to dismiss the petition. Many of the signatories for example were not aware that members of the Arroyo Cabinet, such as Sec. Raul Gonzalez, will become members of a powerful ‘Interim Parliament’ who will again amend the Constitution and decide when to hold the next election and when their terms of office will end. The decision saved the nation from the dangers of being ruled by an amorphous Interim Parliament under a more powerful Pres. Arroyo who are both given the ‘constitutional authority’ to perpetuate themselves in power beyond 2010 as outlined in the Sigaw proposed Constitution.

Inhibition

CODAL demands that the new justice to be appointed by Pres. Arroyo inhibit from voting on the Sigaw petition and other issues related to charter change to ensure credibility of the decision and avoid a constitutional crisis that will ensue should the Court’s decision be tainted with partiality. In fact, it is imperative on the new justice to recuse himself from deciding the Sigaw petition under Article VIII, Section 4 (2) which states that :

Sec. 4(2) All cases involving the constitutionality of a x x x law x x x and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, orders x x x and other regulations shall be decided with the concurrence of a majority of the Members who ACTUALLY TOOK PART IN THE DELIBERATIONS ON THE ISSUES IN THE CASE AND VOTED THEREON. “

Since the new justice did not participate in the deliberation of the Sigaw petition, said justice cannot vote on that issue, as this is prohibited not only by the principles of delicadeza but also by an express provision of the Constitution. It is foolhardy therefore for charter change supporters to pin their hopes on the new appointee.

Reference Person : Atty. Neri Javier Colmenares—Spokesperson

Date : October 30, 2006

PRESSURE ON THE SUPREME COURT MAY COMPROMISE CREDIBILITY OF ITS DECISION ON THE PEOPLES INITIATIVE PETITION

2006-10-25T13:43:00.000+08:00

CODAL condemns the pressure being applied to the Supreme Court, personally conducted and openly admitted by pro charter change advocates like Pres. Gloria Arroyo and Speaker Jose de Venecia. The people may express their opinion publicly in the exercise of their constitutional right to expression on such an important issue. However, personally lobbying Justices of the Supreme Court to decide in favor of the peoples initiative in exchange for promised rewards, is no longer an exercise of a constitutional right, but an unlawful attempt at bribery and a contemptuous attack on the independence of the Court particularly if the lobbying is done by those who have the power or influence to affect the appointment of members of the Court and its Chief Justice. We are aghast that a member of the Bar in the person of the Justice Secretary while rebuking the Chief Justice, the person being “pressured”, found nothing wrong with the acts of those who pressure. We urge those who seek to pressure the Supreme Court in exchange for promised rewards to desist from personally and directly lobbying members of the Court because such influence peddling is legally, constitutionally and morally wrong.

We ask members of the Supreme Court to assert their independence by shunning the intense pressure and deciding on the basis of what their conscience dictates as right under the law and the Constitution. The charter change issue is an important issue that merits an engaged public debate among the people who are free to express their opinion for or against charter change. While the Court should recognize the need for such a public expression of advocacy, it should not allow the kind of pressure openly admitted and justified by pro charter change advocates.

We believe that current charter change is for the benefit of everyone except the Filipino people. The Sigaw ng Bayan instigated ‘peoples initiative’ is also unconstitutional because, inter alia, (i) the proposed changes revises the Constitution, and is therefore constitutionally prohibited (ii) there is no enabling law as required by the Constitution and (iii) and it did not get the 3% and 12% signatures of the registered voters. We find the intense lobbying by local officials self serving since they will benefit from the ‘no election’ scenario under the new Constitution. Furthermore, we find it dangerous that the proposed Constitution provides for the creation of an interim parliament that, because it is empowered to further amend the Constitution, may not call for an election for years and perpetuate itself for a long time similar to Pres. Marcos’ interim government during martial law.

We express our dismay that due to the pressure and lobbying admitted by the Chief Justice and Speaker de Venecia, the Court’s decision on the initiative case is inextricably compromised. We urge members of the legal profession to rally against this insidious attempt to change the Constitution by violating it. We ask the Filipino people, to publicly give the proposed charter change their resounding disapproval and publicly disown the ‘initiative’ that was never ours in the first place.

Reference Person : Atty. Neri Javier Colmenares

Date : October 25, 2006

CODAL POSITION ON HUMAN RIGHTS ISSUES

2006-10-06T10:00:00.000+08:00

CODAL urges the Senate to remove Sen. Juan Ponce Enrile as chairman of the Human Rights Committee for his anti-human rights position by ramming the Anti- Terrorism Bill in the Senate and for his lack of respect for the rights of other by threatening to slap another senator who objects to his sponsored bill. CODAL finds it incomprehensible why majority of the Senators voted Sen. Enrile to the Committee when he is sponsoring a bill considered anathema to civil liberties by the human rights community. Sen. Enrile, who helped implement martial law, cannot head a committee that will help implement the compensation of martial law victims considering that he has consistently refused to acknowledge any wrongdoing during martial law. He has publicly announced that he is remorseless for his role as martial law Defense Secretary and it is fair for the Senate to withdraw their votes for his chairmanship of the Human Rights Committee. Some CODAL lawyers were imprisoned during martial law under the direct orders of then Sec. Enrile.

Abolition of the Melo Commission

CODAL also seriously urges Pres. Gloria Arroyo to abolish the Melo Commission pending the passage of an enabling law implementing her executive order creating a fact finding body on the political killings. Such law will define the process for selecting the members, the procedure and the powers of the body. CODAL notes that the although the Davide Commission was created through AO 146, an administrative order, Pres. Corazon Aquino waited for Congress to pass a law before constituting the Commission. Congress passed Republic Act 6832 which expressly granted the Davide Commission contempt powers and the power to grant immunity.

Without the appropriate procedures that will generate credibility for a fact finding body, contempt powers that will ensure production of witnesses and evidence and the power to grant immunity, the Melo Commission is nothing but a ‘gatherer’ of evidence as Sec. Eduardo Ermita himself called the still born Truth Commission on electoral fraud. Malacanang previously proposed the creation of a truth commission to look into the Garcillano scandal through an administrative order “that will be patterned after the Davide Commission ….which was reinforced by a legislation passed by Congress. CODAL wishes to remind Malacanang that Sec. Ermita once said that ‘Without legislation, its (the fact finding body) just a gathering of facts.”

CODAL also condemns the killing of Bishop Alberto Ramento and reiterates its call for Pres. Gloria Arroyo to act swiftly to stop the killings of activists. Bishop Ramento was an outspoken critic of Pres. Arroyo and has been an active member of the Presidium of the Citizens Congress for Truth and Accountability (CCTA). He voted to find Pres. Arroyo culpable for graft and corruption, electoral fraud and human rights violations in the CCTA verdict. CODAL urges the police not to hastily conclude that the killing was an ordinary case of robbery as it may mislead investigators and cause the real criminals to escape investigation.

Reference Person: Atty. Neri Javier Colmenares (October 6, 2006)

LAWYERS TO INSPECT SIGAW DOCUMENTS IN COMELEC: SUPREME COURT ORDERS COMELEC TO OPEN BOXES

2006-10-02T12:08:00.000+08:00

CODAL is glad that the Supreme Court ordered the Comelec during the hearing on Oral Arguments to allow lawyers of oppositors to the peoples initiative, the opportunity to look into the documents submitted by SIGAW including the signature sheets and the certification by different COMELEC officials. The Supreme Court ordered the lawyers to submit their Memorandum of Arguments on or before October 11 together with any evidence on fraud or failure to achieve the 3% requirement in a particular district. Among the questioned districts pertain to Davao, South Cotabato, Makati, Roxas City and other districts in the Visayas.

On September 29 Atty. Neri Javier Colmenares together with Atty. Aquilino Pimentel III sent a letter to Comelec lawyer Dir. Alioden Dalaig, informing him of the dates when lawyers will go over the Sigaw documents. The date agreed with Comelec is October 4, 5, 6 and possibly October 7 or 9 from 9:00 am to 5:00 pm.

The inspection will focus on the certifications issued by Comelec officers regarding their assertion that the 3% requirement was achieved in their respective municipalities, cities or provinces. Comelec officials who issued certifications without genuinely verifying the signatures submitted will be reported to the Supreme Court. The lawyers will also attempt to look into the signatures sheets although it cannot focus on the same due to lack of time. The Supreme Court is not a trier of facts and could not therefore tackle the voluminous documents showing massive fraud.

CODAL argues that in the absence of an enabling law and rules and the failure of Comelec to notify the oppositors, it was impossible for oppositors to have opposed the verification process in the districts. The 5 day period to inspect these documents is not sufficient to cover all districts.

Dismissing the Sigaw Petition a certainty

CODAL is certain that the Supreme Court will dismiss the petition filed by Atty.Raul Lambino asking the Court to declare that the Comelec gravely “abused its discretion’ when it dismissed the Sigaw petition.

Firstly, Comelec could not have abused its ‘discretion’ when it merely implemented the Supreme Court injunction in Santiago vs. Comelec. The Sigaw petition will definitely be dismissed since following a Supreme Court order can never be interpreted as abuse.

Secondly, the petition is for a ‘revision’ which the Constitution does not allow the exercise of under a peoples initiative. Sol. Gen. Eduardo Nachura admitted during the Oral Arguments that a peoples initiative cannot undertake a revision of the Constitution.

Thirdly, there are other fatal defects in the Petition notably:

a. issues of fraud or the failure to get the signatures of 3% of registered voters in all legislative districts. The case of South Cotabato and General Santos raised in the petition filed by former congresswoman Lualhati Antonino, was mentioned during the oral arguments as one of the areas which must be looked into the opposition lawyers.

b. Support given by local officials in the initiative including the funding of Sigaw. CODAL finds impossible and untenable the statement by Sigaw during the hearing that their total budget is a mere P3 M when the 600,000 signature sheets alone would have cause P 2 M. SIGAW mustalso explain the funding for their almost daily newspaper and TV ads which could now amount to more than P200 M.

c. The admission by Sigaw during the hearing that they only reproduced 100,000 copies of the petition shows that the petition could not have been attached to many of the 600,000 signature sheets signed by voters. CODAL believes that only this admission is fatal to the petition since signature by voters in signatures shets without the attached petition is void.

d. The admission by Sigaw, during the interpellation of Justice Quisumbing, that the signatories did not know that the proposed charter change allows for no election in 2007 is also fatal since this constitutes misrepresentation by the petitioners.

CODAL is confident that the petition for a peoples initiative is doomed to die a natural death due to its fatal flaws even if the Court will reverse Santiago and declare the adequacy of RA 6735, the initiatives law found inadequate in Santiago. The additional arguments of fraud and misrepresentation are only extra nails in the coffin of Sigaw.

Lawyers will make an initial viewing of the Sigaw documents before Dir. Dalaig on October 4.

Reference Person : Atty. Neri Colmenares

Date : October 2, 2006

PERSONS WITHOUT HUMAN RIGHTS BACKGROUND HEAD HUMAN RIGHTS BODIES IN THE ARROYO GOVERNMENT: A MEDIA PLAN TO MUDDLE ISSUES AND EXONERATE AFP

2006-09-23T13:13:00.000+08:00

Pro-Arroyo supporters handling human rights issues

CODAL is seriously concerned that people without any track record for human rights advocacy, such as Sen. Juan Ponce Enrile, Justice Melo and Rep. Bienvinido Abante, are heading human rights bodies tasked with investigating human rights violations of Arroyo government.

Senate should withdraw votes for Sen. Enrile

CODAL condemns the shameless lack of remorse and sensitivity of Sen. Juan Ponce Enrile for his role as the implementor of martial law. He misses the point when he justified his role by using the ‘constitutionality’ of martial law, since the issue is not merely whether Pres. Ferdinand Marcos had the power to declare martial law but whether he had the power to close Congress, to conduct political killings, illegally arrest and detain the opposition and enrich his family through graft and corruption. Surely, many of the acts Hitler may have constitutional basis in Germany, but they were crimes against humanity under international law just the same.

CODAL is concerned that an unrepentant martial law executor, without any background or sympathy to human rights, is currently the head of the Senate Human Rights Committee. It is surprising and unacceptable why Sen. Enrile got the vote of the Senate majority to chair a Committee which will deal with issues on political killings, compensation of martial law victims and other human rights concerns.

Due to Sen. Enrile’s lack of understanding of human rights and lack of remorse for his role during martial law, CODAL calls on members of the Senate to withdraw their votes for Sen. Enrile, oust him from his current position and vote for a senator with knowledge of human rights to chair the Senate Committee on Human Rights.

Muddling the issue

CODAL finds abhorrent the attempt of Pres. Arroyo’s administration at pointing to the New People’s Army as responsible for the murder of more than 700 people, considering that the relatives of the victims point to the military as perpetrators while not one of these relatives ever mentioned the NPA as their suspects.

Experienced lawyers know that relatives of the victims will not point to the much feared military if they suspect the NPA. CODAL confidently asserts that Gen. Hermogenes Esperon does not really have any evidence, admissible in court, to prove his claims before the Melo Commission except self serving ‘captured documents’ that no one can verify or testimonies of witnesses whose credibility is not even closely comparable to those of the victim-survivors or their relatives. Gen. Esperon was merely playing a media counter offensive to diffuse criticism from Pres. Arroyo and the AFP.

MELO Commission’s lack of human rights sensitivities

CODAL is seriously concerned that the Melo Commission is contributing to the military’s media counter offensive when it allowed the AFP to explain why they are not guilty of the political killings rather than asking the victims what actually happened. Any serious, competent and genuine fact finding body or court for that matter must first establish the facts of the incident before interviewing the suspects. The prosecutor must first lay the basis of the case before the accused or the respondent is allowed to present his or her defense. This major mistake of the Melo Commission is a serious blow to its already tattered credibility, from which the Commission may not be able to recover. From the conduct and composition of the Melo Commission, it is no longer surprising to expect that it will come out with a decision declaring that there is no evidence proving government involvement in the killings, using the killing of journalists as a basis. It may sacrifice an individual soldier or two as perpetrators but will point to the NPAs and criminal syndicates as the main perpetrators of the killings.

The sinister inclusion of the Committee on Defense and the Public Order Committee headed by former military officers in the House of Representatives’ investigation of the political killings is one more proof of the malicious effort by government to derail the ongoing investigation and discourage witnesses from testifying. Rep. Abante, who chairs the human rights committee, shows his lack of human rights advocacy and sensitivity by inviting former military officers to join in his committee’s investigation.

Pattern of Deception

All these point to the fact that Pres. Arroyo and the military hopes to distract international concern by muddling the issue using supposed killings of the NPAs as a diversion. Such an argument however, is not only irrelevant to the issue of political killings but is an admission on the part of the military of their involvement in the current killings using the analogous principle of ‘negative pregnant’ under the rules of court. It is negative pregnant because instead of proving their innocence of the recent killings, the military argues that the NPAs committed similar killings more than 16 years ago. The rules of evidence require specific denial of a charge and the presentation of evidence to prove such denial rather than using generalities and pointing to the perpetrators of another incident not related to the issue at hand.

CODAL expresses its abhorrence over the contribution of the Senate, the Melo Commission and the House of Representatives Human Rights Committee in this blatant cover up. CODAL asks the victims and the human rights groups to expose this grand design of the AFP and the Arroyo government, so that the search for truth and the real perpetrators of the political killings will not be derailed. CODAL urges human rights groups and concerned governments worldwide to insist that the Melo Commission and congressional human rights committees focus their investigation on the killing of the 752 victims so that the issue of current political killings will be substantially resolved and the death squads stopped from committing more assassinations and extra judicial killings.

Reference Person : Atty. Neri Colmenares

Date : September 23, 2006

POLITICAL KILLINGS AND CHARTER CHANGE: A RETURN TO MARTIAL LAW (September 21 Statement)

2006-09-21T11:00:00.000+08:00

Imagine a country attended by thousands of political killings, involuntary disappearances, illegal arrests and harassments, where activist organizations and the media are threatened daily for exposing the truth, where electoral fraud, misuse of public funds, graft and corruption are rampant, where impunity and a complete disregard for the judiciary and the legislature exists, where arrogant military officers hold sway over civilian institutions and a self-serving Constitution is being rammed down the throats of the people by a repressive president. The scenes above do not only refer to the ‘new society’ under Pres. Ferdinand Marcos’ martial law, but to the ‘strong republic’ under Pres. Gloria Arroyo. Despite the 34 year difference between the two, the similarity is striking.

Proposed Constitution: Absolute Martial Law Powers to the President

CODAL expresses strong condemnation of the move to grant Pres. Gloria Arroyo absolute martial law powers through charter change, especially since Pres. Arroyo’s administration has been charged with gross human rights violations and intolerance with dissent since it came to power in 2001.

Thirty-fours years ago today, Pres. Ferdinand Marcos declared martial law on the ground of ‘imminent danger’ of rebellion. To prevent the president from using such amorphous ground again, the 1987 Constitution subsequently limited the grounds to declare martial law to rebellion and invasion. CODAL finds it abhorrent that the proposed Constitution seeks to reinstate ‘ imminent danger’ of rebellion as a ground to declare martial law, considering the penchant of Pres. Arroyo to consider all forms of criticism against her as destabilization and therefore a threat to national security.

Additionally, while Martial Law has a 60-day life span under the current Constitution subject to an extension only upon approval of Congress, the proposed charter deleted such an important legislative checks and balance mechanism. Furthermore, the power of the Supreme Court to look into the factual basis of a martial law declaration has also been deleted in the proposed Constitution, a return to the martial law experience where the Supreme Court remained powerless to check the abuses of Pres. Marcos. The proposed Constitution, by granting Pres. Arroyo absolute martial law powers unrestricted by legislative and judicial intervention, is not only a throwback to the Marcos martial law Constitution but also another serious threat to the rights and freedoms of the Filipino people.

The Philippines: A Garrison State with the revival of the Marcos Constitution

Despite the overthrow of the Marcos Regime in 1986, the specter of Martial Law continues to haunt the people under the Arroyo regime. With the rampant political killings, growing number of disappearances and escalating human rights violations, complemented by an abuse of power through Presidential Proclamation 1017, CPR and Executive Order 464, Gloria Macapagal-Arroyo has placed the whole nation virtually under military rule which she seeks to further institutionalize under a new Constitution.

Considering the escalating human rights abuses by the government forces and the military’s lack of respect to civilian institutions, the new Constitution will only formalize martial rule in the country and transform it into a garrison state effectively controlled by the Pres. Arroyo and her military supporters.

CODAL opposes the current move to change the Constitution because its MOTIVATION is not for the benefit of the people but the self-serving interest of Pres. Arroyo and public officials who want to stay in power until 2010 without the mandate of an election, because its CONTENT is anti-people as it formally opens up private lands, public utilities and our natural resources to foreign control and ownership and because the PROCESS employed is not consultative nor participatory as it is being rammed on the throats of the Filipino people though deceit, threats and bribery.

Solicitor General Must Not Participate in Oral Arguments

CODAL is further seriously concerned with the pronouncement of Solicitor General Eduardo Nachura that there is an adequate law to implement the people’s initiative of Sigaw ng Bayan. This turn-around by Solgen. Nachura is surprising since he once filed two bills proposing an initiative law when he was a congressman during the 11th and 12th Congress thereby recognizing the lack of an enabling law for a peoples initiative. CODAL is afraid that the declaration of the counsel for the Respondent favoring that of Petitioner Sigaw will threaten the credibility of the scheduled oral arguments before the Supreme Court. CODAL asks Solgen Nachura not to represent the respondent in this case and, like former Solicitor General Frank Chavez, inhibit himself from a representing a case he does not agree with.

Members of the Legal Profession must take an active stand

The most prominent place in hell is reserved for those who remain neutral in the greatest issues in life.

On the 34th commemoration of the declaration of Martial Law, CODAL calls on lawyers and law students to join the nation in condemning political and civil repression, denouncing human rights violations, opposing charter change in all its forms under the current Arroyo administration, and preempt the institutionalization of a dictatorship.

Uphold Civil Liberties and Human Rights! STOP THE KILLINGS! Oppose CHA-CHA!

Reference : Atty. Neri Javier Colmenares—Spokesperson
Date : 21 September 2006

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

2006-08-30T13:41:00.000+08:00

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

2006-08-30T13:32:00.000+08:00

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

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”

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

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

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.

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.

^{^[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

2006-08-28T13:43:00.000+08:00

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

2006-08-28T13:42:00.000+08:00

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

2006-08-21T13:03:00.000+08:00

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

2006-08-13T12:39:00.000+08:00

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

2006-08-09T11:46:00.000+08:00

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

2006-08-09T11:45:00.000+08:00

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

2006-08-08T11:32:00.000+08:00

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

2006-07-31T13:02:00.000+08:00

July 24, 2006
State of the Nation Address

CONFLICTING LEGAL ARGUMENTS BY PRESIDENTIAL ALLIES

2006-07-29T11:31:00.000+08:00

Prelude to Dismissing the Impeachment Complaint on Technicalities that have no Constitutional or Legal Basis

Sen. Mirriam Santiago’s legal analysis that the impeachment complaints filed recently will be dismissed on the principles of ‘res judicata’ and “double jeopardy” is without legal and constitutional basis.

According to the Supreme Court in Mirpuri vs. CA (GR 114508, 1999) “Res judicata has the following requisites: (1) the former judgment must be final (2) the judgment must be one on the merits, (3) it must have been rendered by a court having jurisdiction and (4) the parties, subject matter and causes of actions must be identical in the two cases.”

It is a well known principle among lawyers that ‘res judicata’ only applies if the original case has been dismissed by a court on the merits and the same issues are raised by the same parties in a second complaint. None of these elements are present. Sen. Santiago’s analysis may have been clouded by her pro-GMA sentiments when she missed the fact that the Amended Impeachment complaint was dismissed on a baseless technical and procedural ground last year, and was never tackled on the merits by the Justice Committee. Furthermore, the impeachment complaints contain new issues not raised in the amended complaint last year such as the imposition of Proclamation 1017, EO 464 and CPR. The parties in both complaint are also different since the current complaints were filed by citizens-complainants while the amended complaint last year was filed by members of Congress. Clearly res judicata does not apply.

CODAL also finds absurd the claim by Sen. Santiago, who was a former RTC judge, that the impeachment complaints constitute ‘double jeopardy’ against Pres. Arroyo. The Supreme Court declared in Guerrero vs. CA (GR 107211, 1996) that:

“ any legal jeopardy attaches only (a) upon a valid indictment (b) before a competent court (c) after arraignment (d) a valid plea having been entered and (e) the case was dismissed or otherwise terminated without the express consent of the accused”.

CODAL expresses concern over the twisting of legal arguments by Sen. Santiago since, it is presumed that she, like any lawyer knows that the doctrine of double jeopardy only applies to criminal cases and not to an impeachment complaint. Her pronouncements may be a prelude to the dismissal of the current impeachment complaints, again, on a technicality that has, as in last year, no constitutional or legal basis.

The position of Rep. Monico Puentebella that the complaints will be dismissed because they ‘contain no new issues’ is both factually and legally baseless. The charges last year were never tackled as the amended complaint was dismissed, so it is unethical for members of congress to delude the people on this respect. Furthermore, the complaints contain new issues.

Members of the Justice Committee must realize that “the demands of due process present a weightier consideration than the need to bring an end to the parties' litigation. For more important than the need to write finis to litigation is to finish it justly, and there can be no justice that satisfies unless the litigants are given the opportunity to be heard” as the Supreme Court demanded in Salud vs. CA (GR 100156, June 27, 1994). Killing the impeachment complaint not only on mere technicalities, but on legally baseless technicalities will virtually close another legal venue for justice for victims of political killings, no different from that during Marcos’ martial law.

Correct Filing Date

CODAL also finds legally untenable the contention of Rep. Edcel Lagman that last year’s impeachment complaint was initiated not upon the filing of the impeachment complaint but by the receipt of the Justice Committee of the complaints on July 26. The conflicting opinion of Rep. Prospero Nograles that the one-year ban starts on the date of the referral on July 25 is correct as it follows jurisprudence.

The contention of both, however, is a 360-degree turnaround for the Majority which insisted that the mere ‘filing’ of the Lozano complaint on June 26 last year initiated the impeachment proceedings thereby making the Amended impeachment complaint a “second complaint’ and therefore barred. It must be noted that the complainants last year were insisting that the complaint was initiated on the date of referral rather than filing and that, therefore, the Amended Complaint is not a ‘second complaint’ since it was referred to the Justice Committee together with the Lozano Complaint on July 25, 2005 during the SONA of Pres. Arroyo.

The Supreme Court , in Francisco vs. House of Representatives, (GR 160261, Nov. 10, 2003), has declared that an impeachment “proceeding is initiated or begins, when a verified complaint is filed and referred to the Justice Committee for action.” The decision is clear—an impeachment complaint is initiated upon the referral of the impeachment complaint on July 25 last year and not on the date that the Justice Committee received the complaint. The one year ban therefore ends on July 25 of 2006 and the correct date for the filing of a valid impeachment complaint is July 26.

However, it does not matter whether the July 26, July 27 or any other complaint is valid since all the complaints contain the same issues, and the all the complainants are united on the need to impeach Pres. Arroyo so that the evidence on the charges of electoral fraud, political killings and corruption be heard.

CODAL supports Rep. Lagman’s disagreement with Atty. Romulo Macalintal’s position that the impeachment complaint be dismissed because it is pending on appeal before the Supreme Court. After killing the impeachment complaint, it is abhorrent for presidential allies to now belatedly claim that it is still, in fact “alive”. Furthermore, any public official with a pending impeachment case, may still be charged with another impeachment complaint the following year, if she commits another impeachable offense subsequently. Atty. Macalintal’s legal thesis will mean that public officials with pending impeachment complaints, are free to commit subsequent impeachable offenses and crimes provided they have a pending impeachment complaint.

The confusion and contradictions of legal opinions among presidential allies show that they have no clear and strong legal basis with which to quash the impeachment complaints on mere technicalities. The disarray among them may be favorable to the impeachment complaint and may convince many members of Congress that the impeachment complaints are valid as to form and substance.

Presidential allies must resort to fair play and not use amorphous and patently erroneous legal arguments to derail the impeachment this year and confuse the people. The ‘technical, prejudicial questions’ worked last year. It may not work this year.

Reference : Atty. Neri Javier Colmenares—Spokesperson

Date : 29 July 2006