The Supreme Court has the ball

Wed, 05/03/2006 - 00:00
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Abueva points out how, in 2001, "they (Supreme Court justices) even had to invent a doctrine called constructive resignation."

Still, there are those like Fr. Joaquin Bernas, S.J., a constitutional law expert and one of those who had helped frame the 1987 charter, who say the current Supreme Court may yet pull a surprise - at least for those who want to change the constitution.

In a forum last week, Bernas pointed to two recent rulings issued by the Panganiban Court that he says shows that "the justices are conscious of their own place in history."

On Apr. 20, the Court partially voided Executive Order 464 that had clipped the powers of Congress to summon government officials to its inquiries. A few days later, the Court followed that up with an opinion on the so-called "calibrated preemptive response" of the government regarding rallies; according to the Court, the policy had no place in the country's "legal firmament."

These rulings have made Bernas optimistic that there would be no revision of the constitution this year. But if such a revision "comes through," he says, "it would only mean that the Supreme Court will have approved initiative and referendum for revision."

"We can give up on the Supreme Court if that happens," he said.

Eagle eyes

Those who are already cynical about the Court, however, are keeping a careful eye on just how close the Arroyo administration comes in copying steps taken by the Marcos government in 1973.

Initially, Marcos had scheduled a plebiscite to meet the requirements of the constitution for a valid ratification. But he suddenly postponed the plebiscite a week before it was to take place. Instead he directed his citizens' assemblies to conduct a referendum "on important national issues."

Ten suits were filed before the Supreme Court to stop or void this highly doubtful manner of ratifying a charter - where in some cases, people were asked to raise their hands if they were hungry and these were counted as the votes.

But the Supreme Court dismissed all the cases in a ruling dated Mar. 31, 1973, after Chief Justice Roberto Concepcion received a copy of Marcos's Proclamation No 1102. According to the proclamation, the citizens' assemblies had met and they had allegedly asked Marcos to consider their approval as the ratification; not to convene the interim national assembly; postpone elections, and lastly, to continue martial law.

Javellana v. the Executive Secretary, nailed the coffin shut on democracy. The Supreme Court said that even if the constitution had not been ratified by a body or agency "not duly authorized" by the constitution, the court could no longer inquire into the validity of the ratification because people had already accepted and obeyed its laws and the government was already operating under it.

Asked about the Javellana ruling, ConCom member Lambino said it is not relevant to the current people's initiative. This is because, he said, a plebiscite was sure to follow the initiative, complete with an official ballot, printed and administered by the Comelec.

What's a plebiscite?

But former ConCom member Vicente Paterno, who resigned from the body last December, in effect disowning the draft charter he helped craft, remains jittery. He says one loophole that charter-change advocates can take advantage of is the fact that the present constitution does not define what a plebiscite is.

"It will have to be a Supreme Court interpretation of what a plebiscite is," says Paterno, who chose to leave the ConCom after last-minute provisions giving President Arroyo vast powers made their way into the draft constitution. "Is it a written vote or a referendum like what Marcos did in the citizens' assemblies with a show of hands?"

Bernas, for his part, reminded the audience at a forum last week that a 1997 Supreme Court decision says there must first be an "enabling law" before a "people's initiative" could be used to amend the constitution. He also stressed that any "initiative" or referendum may be used to introduce only amendments to the charter, and not revisions.

"For the simple reason of practicality," said Bernas. "When you want to make major changes, there are a lot of things you have to debate upon. You can't expect a mass of people, unorganized, to debate on these."



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