Your Honors, it's a PIG in a poke

Artemio Panganiban, then a justice of the Philippine Supreme Court, was passionate in his dissent in Santiago v. COMELEC (March 1997):

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.

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

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.

The Supreme Court, however, speaking through then Justice, and later Chief Justice, Hilario Davide, ruled in Santiago that while Republic Act No. 6735 is “intended to include the system of initiative on amendments to the constitution,” it is “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 speaking for the Court, “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 majority in Santiago also ignored the plea of the late senator Raul Roco during his sponsorship of R.A. 6735 (also known as the Roco Law), the enabling law under dispute for the people’s initiative to amend the constitution. Senator 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 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 Fidel 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 zeal on the part of the majority to “burning the whole house to kill the rats.”

Now that EDSA II has been demoted in Estrada v. Desierto (March 2001) to an inchoate cousin of EDSA I, talks of “people power fatigue” are still up in circulation, and the people’s clamor for public accountability via impeachment have been brusquely quashed twice in the House, does the logic of Panganiban in Santiago still hold water?

To any critical vetting, the Panganiban dissent stands up all because it pays fealty to our constitutional regime since 1987. Our present state of constitutionalism, it should be underscored, could now be said to have accommodated people power democracy as having been integrated in our borrowed form of republicanism. This ideology 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.

This is therefore an earnest appeal to the Hon. Artemio V. Panganiban, now Chief Justice, to adhere to his intellectual honesty and consistency by leading his robed brethren to join him this time and uphold the constitutional mechanism of people’s initiative and thereby “(institutionalize the) legacies of the world-admired EDSA people power.” The Panganiban Court however 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 (March 1973) has in good conscience taken judicial notice of the ludicrousness of the citizens’ assemblies that supposedly ratified the Marcos constitution.

It comes as no surprise why former senator Rene Saguisag, placing himself into the shoes of the 10,000, 000 (or at least 6,000,000) Charter change petitioners, in good conscience has seen as equally preposterous any claim that the Filipinos’ direct action for constitutional amendment from a presidential to parliamentary form system is understood by them in a constitutional sense:

If asked to vote today on PI (People’s Initiative), maybe I should at the least abstain. What they say is clear to 10,000,000 Filipinos is not clear to me at all. I trained in the law but cannot pretend to understand what Raul (Lambino) & Co. say is clear to 10,000,000.

I know my limitations.

But the Legions (principally, Sigaw ng Bayan and the Union of Local Authorities of the Philippines) don’t. Their shameless scheme is just another Marcosian scam, nay, an open and shut “Hello Garci” chicanery perpetrated right under everyone’s nose. Hence, doing the right way, the right thing at the right time and for the right reason is of no other moment than today. The Panganiban Court should not pass up such a win-win opportunity.

Again, pursuant to the correct opinion of Panganiban in Santiago v. COMELEC, the Supreme Court should rule swiftly in this manner: Reverse Santiago by recognizing and upholding People’s Initiative under the Roco Law but derail and kill the locomotive of Charter change by simply taking judicial notice of the so-called people’s constitutional amendment campaign as being a PIG (People’s Initiative ni Gloria) in a poke that it is.

(This piece, an updated version of my blog here, is in response to the renewed attention to the Charter change debate.)