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

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

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

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

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

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

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

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