A non-precedent?

Let’s make this clear right at the outset. At the moment, as a result of the Supreme Court’s decision in Lambino, et al. vs. Comelec, the prevailing rule on People’s Initiative (PI) in this country is clear.

There is at this time no enabling law on PI, since Republic Act 6735, the Referendum and Initiative Act, was declared by the Court back in March, 1997 to be "incomplete, inadequate and wanting in essential terms and conditions" to implement the Constitutional provision on Initiative (Section 2, Art. XVII).

The Court, through Mr. Associate Justice Antonio Carpio as ponente or author of the majority opinion, held it was unnecessary to revisit, much less reverse, the ruling in that 1997 case of Santiago vs. Comelec. The Court ruled, by a razor-thin majority of 8 to 7 Justices, that since the petitioners had "miserably failed" to comply with the provisions of Sec. 2, Art XVII, it was not necessary to review the Santiago decision.

Even if R.A. 6735 were to be ruled, after review, to have been adequate after all to implement PI, it would not have made any difference, since the petition filed to propose certain Charter changes did not comply with constitutional strictures.

According to the majority decision, the fatal defects were principally two: First, the full text of all the proposed amendments was not "first shown to the people who express their assent by signing such complete proposal in a petition."

The result was a "grand deception" on the 6.3 million signatories who "could not have known the nature and effect of the proposed changes," including the lifting of term limits on members of the new parliament; that members of the interim parliament would determine the expiration of their own terms of office; and, that the interim parliament would propose further unrelated amendments or revisions to the Constitution.

The second fatal flaw in the initiative petition was that the proposed changes constituted revisions to the Constitution, whereas people’s initiative is specifically limited by the Charter to amendments. According to the majority view, "Where the intent and language of the Constitution clearly withheld from the people the power to propose revisions to the Constitution, the people cannot propose revisions even as they are empowered to propose amendments."

The reaction to this Supreme Court decision has been as expected, even as a motion for reconsideration is expected to be filed by the petitioners. Still, although the decision isn’t final yet, advocates of people’s initiative are naturally disappointed. They are convinced that the other methods of effecting Charter change have less of a snowball’s chance in hell of succeeding than PI ever had.

A constituent assembly will inevitably wind up in the Supreme Court, and will probably be thrown out on the "each House voting separately" issue, despite the brave fighting words of Speaker Joe. Con-Ass is, in fact, a monumental waste of time.

Constitutional convention, while attractive in principle, will be too expensive and take too long to complete, with uncertain results. Besides, political pragmatists insist that aside, conceivably, from Metro Manila and some urban areas, a con-con will be packed with proxies of a political and financial elite bent on protecting their interests.

But is People’s Initiative finally and irrevocably dead? If R.A. 6735 is inadequate and insufficient, there is now no law which effectively implements the Constitutional provisions on People’s Initiative, right? Well, not so fast!

Further, since the Court has "clarified" the distinction between revision and amendment, that should be the last word on the matter, correct? Not quite!

The majority opinion required that the "full text" of all proposed amendments to the Charter be included in the initiative petition, and all ostensible signatories of that petition be fully apprised of details of the proposals.

Thus, the Court laid down the arguably sensible rule that all proposals to amend the Charter should make absolutely certain that the people, in proposing them, and in later ratifying them, know and fully understand what they were agreeing to or ratifying. The "full text" rule would seem to apply both to the proposal and, with more reason, the ratification stages.

Again, with even more reason, the same "full text" rule should apply to the ratification by the people of an entirely new proposed Constitution.

Justice Carpio notes that 16,622,111 voters ratified the 1987 Constitution. To avoid legal attacks on the ground that the ratifying voters didn’t know what they were ratifying, the "full text’ rule would seem to require that 16 million plus copies of the "new" Constitution be disseminated. Or, if one concedes a 10 to 1 "pass-around" ratio, roughly 1.6 million "full text" copies must be distributed. The question is: At whose cost?

What’s wrong with this legal picture? We need to talk about that, especially in the light of the dissenting opinion of the Hon. Senior Justice Reynato Puno.

Some in media reported the case of PI as if it were a sports event, with the only relevant consideration being "the score." Or worse, some portrayed the process at the SC as if it were some kind of morality play with heroes and villains contending on stage. This demeans, and oversimplifies, the work of Judges. `

The best jurists, whose reputations stand the often cruel tests of time and outrageous fortune, and who really know their job, do not give a hoot about the political dimensions of a case. Their function is to discern and apply the Constitution or the law, not to guess at what the political fallout might be.

Thus, those who, with the supreme advantage of hindsight, claim after the fact that they had always felt Charter change through people’s initiative was a "harebrained scheme" should be regarded with great skepticism. How "harebrained" could that "scheme" have been, when 7 out of 15 SC Justices seemed to support it?

Perhaps all those 7 Justices are themselves harebrained? I think not. They were, I am certain, just as independent, patriotic and passionate about the public interest as the other 8 who are now extolled as heroes. To see the voting in the Court as affirmation by individual Justices of political affiliation, or of political debts, is overly simplistic.

Contrary to the appraisal of other commentators in media, the dissent of Senior Justice Puno met all the arguments of the majority opinion point by point. I juxtapose these dueling arguments, so you may judge their relative merits, next time.

(To be continued)