Who’s right and who’s wrong ?

Constitutional reform advocates are rightly unfazed by the Comelec’s refusal to act on the people’s petition. By refusing to act on the petition despite the petitioners having fulfilled the requirements of law, the electoral body has tossed the issue into the Supreme Court’s backyard where it should be.

Advertently or inadvertently, it has put the merciless spotlight on the Davide-led Supreme Court and its decision in the Santiago vs. Comelec case in 1997 where it should be. The question we must now confront is far more fundamental than partisan politics. It is whether we are committed to democratic and republican government. Did the Supreme Court, by putting a permanent TRO on the electoral body act democratically?

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One US-based Filipino columnist misread my column on ‘Free Speech’. He argues that preventing a successful people’s initiative is an issue of legalities not about free speech. First, there is not a single word in that column which speculates on what the Panganiban-led Supreme Court will do in the face of today’s people’s initiative. The column was posted in Mindanao1081 by Dr. Jose Abueva, former president of the University of the Philippines, and chairman emeritus of ADCOM.

When I cite the dissenting opinions of the present Chief Justice Artemio Panganiban and Justice Reynaldo Puno, the only surviving members of the 1997 Court, I certainly do not mean that the two justices will reverse their positions. I am neither Justice Panganiban nor Justice Puno. I may have ‘liberally’ (I don’t know how else) quoted from Justice Panganiban’s dissenting opinion in my column because I believed and agreed with what the justices did and said in 1997. It does not follow that I am speculating on what they will do today. That is their call. What I did say is that their dissenting opinions even if these were written in 1997 or any other year is true through the ages and remains valid as "guideposts" and "our beacons for today’s endeavor".

Speaking of intellectual beacons I likewise take my lessons from elsewhere. It has been said again and again by some law ‘experts’ that we should all submit to "the rule of law." If the Supreme Court said there was no enabling law in 1997, then there is no enabling law, tapos ang kuwento. In fact the Supreme Court did not say there is no enabling law. What it said was there is an enabling law but it was inadequate. There is a whale of a difference and it is that difference that the people need to know to appreciate why the 1997 decision ought to be revisited. On this the vote was a tie, which according to my lawyer friends makes it a non-decision. So here is a clear instance which calls for citizens’ vigilance on how the ‘rule of law’ has been interpreted. To me, and I many others, it does not command blind obedience.

The rule of law is a form of check and balance. It purports to deny unlimited or discretionary power and authority. As a fundamental tenet of democracy it is a way to prevent dictatorship and despotism. In this case the power and authority in question is the Davide-led Supreme Court’s 1997 decision. The issue is whether what the Supreme Court did in 1997 ought to be revisited for very compelling reasons. Certainly if it frustrates the right to free speech, it ought to be. Because that is ultimately what a people’s initiative means – the right of sovereign people to propose amendments, repeat propose not make amendments. This right is embodied in the Constitution. Moreover, as a specie of free speech it rates higher than "legal" technicalities.

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The rule of law became a byword on how to keep order in free and democratic societies with competing interests. The implicit assumption in such societies is the fallibility of men and women whether in or out of government. That includes a Supreme Court. In the words of a towering Greek intellectual and politician, he humbly admitted "I do not know that the People or selected rulers can be trusted to know the good well enough to rule at their discretion or to abridge the principles and rights that exist in natural law." Free speech is one of those natural rights. No one can be trusted with too much power. But if the rule of law was used through the ages to protect ordinary citizens from those more learned and more powerful it was also abused and eroded. Courts of law were also used to sugarcoat the pursuit of partisan agenda. In a constitutional democracy such as ours both the people and the government cannot be trusted with absolute and arbitrary authority any more than a king or a dictator.

In my books, a people’s initiative with ten million signatures asking for a plebiscite on their proposed amendment should certainly not be trivialized by the stooges of an oligarchy once described as the longest-surviving in Asia. If we profess to be a democracy, we have to fight for free speech. That is the short answer to why Sigaw ng Bayan and ULAP have persisted with a people’s initiative. Democracy, as a way of life, is being defended by a people’s initiative. The signature gathering may have its defects but the principle being defended cannot be questioned. Apropos democracy, Winston Churchill encapsulated it best when he said it may be the "worst form of government," just better than all the others. He echoes James Fenimore Cooper who said "We do not adopt the popular polity because it is perfect, but because it is less imperfect than any other." Let us call a plebiscite so we can know once and for all who are the many and who are the few: on Charter change.

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I agree with a priestly columnist that the Supreme Court will be severely tested when it faces the question of just what happened in 1997. He is correct that the heart of that decision permanently enjoins Comelec 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." But I must differ when it assumes a moral dictum. We have to revisit that decision because it ought to be questioned. That is not defiance. It is true citizenship in a democracy.

On the contrary, it is a commitment to democratic standards. Democracy requires continuing citizens’ vigilance. Here is a unique opportunity to test our institutions, the Supreme Court included, to determine whether an error was committed. Unfortunately, not a few will be intimidated by moral posturing from those who claim to know right and wrong. But whose right and whose wrong should be the more humble approach to an intensely debated issue such as Charter change.

It is sad but true that priestly pronouncements continue to intimidate, if more subtly today, in this once friar-run country. Yes, it will ultimately depend on the Supreme Court but we hope they do so as using their consciences and what they think is in the best interest of our country. As for being remembered by history, happily this is not a monopoly of those who claim religious superiority.

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My e-mail is [email protected]