Wednesday, April 05, 2006

The other way to kill the rats

As a swipe at “Asian authoritarians,” the April 4, 2006 editorial of Financial Times has attempted to explain why the notion of democracy as a western product “that should no longer be ‘exported’ to east Asia” is misplaced:
Flawed individuals and constitutions, not inappropriate political philosophies, are to blame for the latest crises afflicting the democracies of south-east Asia. The problem with Gloria Macapagal Arroyo, the Philippine president, is not democracy but the way she subverted it by secretly talking to an election official during vote-counting in 2004 and refusing to explain herself when damning recordings of her telephone calls were leaked.
The criticism about the “flawed” character of Arroyo has firm grounding. However, the editorial in the main indicates how uninformed Financial Times is of the philosophy of “people power” undergirding the 1987 Constitution of the Philippines. Still, I find FT’s condescension explicable over against the shabby treatment by the Philippine Supreme of the conception of the power in Santiago v. COMELEC (March 1997).

The Santiago decision, I believe, has failed to pay full obeisance to the institutional groundwork of people power democracy as laid down in the Philippine Constitution.

It should be noted that the 1987 Constitution, a product of People Power uprising, under the very first section of the article on Legislative Department, has reserved to the principal, the sovereign Filipino people, a provision for initiative and referendum as an express legislative power-sharing mechanism co-existent with that so delegated by the same sovereign to the agency of the Legislature. This is a fundamental drift from a purely representative government that cannot be simply brushed aside.

“That our constitutional regime,” I have once elaborated, “could now be said to have accommodated people power democracy as having been integrated in our borrowed form of republicanism finds support in Article XIII, Sections 15 and 16 of the Constitution defining the role and rights of people’s organizations separately from the right peaceably to assemble or to petition the government for redress of grievances as well as in Article VI, Sections1 and 32 in relation to Article XVII, Section 2 thereof reserving to the people the power of initiative and referendum.”

My views in the foregoing somehow reflect the minority opinion of the then Justice Panganiban in Santiago as well as the cogent reasoning of the late senator Raul Roco who was an intervenor in the case.

Panganiban was passionate in his dissent. He wrote:
Initiative, like referendum and recall, is a new and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are sacred democratic rights of our people to be used as their final weapons against political excesses, opportunism, inaction, oppression and misgovernance; as well as their reserved instruments to exact transparency, accountability and faithfulness from their chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck down, on the other, their legitimate exercise should be carefully nurtured and zealously protected.
The majority in Santiago also ignored the plea of Roco during his sponsorship of Republic Act 6735 (or R.A. No. 6735, also known as the Roco Law), the enabling law under dispute for the people’s initiative to amend the constitution. Roco argued:
Under the 1987 Constitution, the lawmaking power is still preserved in Congress; however, to institutionalize direct action of the people as exemplified in the 1986 Revolution, the Constitution recognizes the power of the people, through the system of initiative and referendum.

As cited in Section 1, Article VI of the 1987 Constitution, Congress does not have plenary powers since reserve powers are given to the people expressly. Section 32 of the same Article mandates Congress to pass at the soonest possible time, a bill on referendum and initiative, and to share its legislative powers with the people.
The Supreme Court, speaking through then Justice Davide, ruled in Santiago that while R.A. NO. 6735 “intended to include the system of initiative on amendments to the constitution,” it is however “unfortunately inadequate to cover that system.” The inadequacy however was more of a defect in style or in form, but enough to consign, in the language of Davide, “the right of the people to directly propose amendments to the Constitution through the system of initiative (to) remain entombed in the cold niche of the Constitution until Congress provides for its implementation.”

It would have been easy for the Supreme Court if the will was there (as in the infamous concoction of “constructive resignation”) to give its imprimatur for the institutionalization of people power by reasonably filling in the interstices in the law. The will was wanting obviously, prompting Justice Panganiban to speak loudly of his frustration: “With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relive him of pain . . . we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously . . . Indeed, there is a right way to do the right thing at the right time and for the right reason.”

The restrictive, if not anti-people power, route taken by the Supreme Court in Santiago, would be quite understandable in the context of the political milieu still obtaining at the time decision was handed down. Amending the constitution through people initiative that would have allowed President Ramos to stay in office beyond his single term of six years was then seen as a haunting reprise of the dirty tricks Marcos had employed to perpetuate himself in power. That in a nutshell explains the promptitude on the part of the majority to “burning the whole house to kill the rats.”

But lo, am I arguing for the reversal of Santiago so as to provide for a free passage for Arroyo’s cha-cha train to a dreaded Marcosian trek on the basis of such a reversal? No. I mean Hell No! Here’s why: This piece is an earnest call to Chief Justice Panganiban to adhere to his intellectual honesty and consistency by leading his robed brethren, if the appropriate petition is brought before the Court, to join him in his dissent in Santiago and uphold the constitutional mechanism of people’s initiative and thereby “(institutionalize the) legacies of the world-admired EDSA people power.” The Panganiban Court must declare in due time the loco motive of Arroyo’s charter change in the same way that Chief Justice Roberto Concepcion in Javellana v. Executive Secretary has in good conscience taken judicial notice of the ludicrousness of the citizens’ assemblies that supposedly ratified the Marcos constitution.

Simply put, derail and kill the rotten rats of the unabashedly self-serving Arroyo initiative but save and keep the house of people’s initiative and People Power. To quote Panganiban anew: “. . . we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously . . . Indeed, there is a right way to do the right thing at the right time and for the right reason.”

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