“I do not know if we can convene immediately even if the resolution is approved today.” – Hon. Prospero Nograles, Speaker, House of Representatives

The approval of House Resolution No. 1109 (ConAss) has been met with everything but sobriety – even the very leadership of the House of Representative has failed to comprehend its approval in the light of the provisions of the very Constitution they seek to amend.

It is unfortunate that most of our Representatives never attempted to understand where ConAss lies in the Constitutional scheme of things. However, it is even more unfortunate if we resort to labels identifying ourselves as ‘Anti-ChaCha’ and placards articulating our ‘No to ConAss’ without an appreciation of the dynamics in our Constitution, however flawed it may seem to many.

Charter Change refers to either the revision or amendment of the Constitution. Amendment would refer to ‘isolated or piecemeal change only’ while revision would pertain to a ‘revamp or rewriting’ [Cruz, 1996]. Article XVII provides that both involve two (2) steps – proposal and ratification.

Constituent Assembly (ConAss) is among the modes of proposing either amendments or revisions to the Constitution. A reading of the Article would show that there are the three modes for proposing changes: (a) Constituent Assembly [Section 1 (1)]; (b) Constitutional Convention [Section 1(2)]; or (c) by a People’s Initiative [Section 2].

For the first mode, Congress – and by ‘Congress’ we mean not merely the House of Representatives but must necessarily include the Senate – may convene itself into a Constituent Assembly ‘upon a vote of three-fourths of all its Members’ [Emphasis mine.] As ConAss, the Senate and House of Representatives become a constituent body exercising special power to formulate a new constitution or propose amendments to the constitution. A caveat though, our Constitution does not explicitly state whether the two houses of Congress will be voting jointly or separately.

Congress may call for a Constitutional Convention (ConCon) ‘by a vote of two-thirds of all its Members’ or by a simple majority vote, Congress can submit the decision (on whether or not to call a ConCon) to the electorate. [Again, emphasis mine.] Under ConCon, it is imperative that the delegates to the ConCon is from a direct election by the people. The number of delegates is entirely the discretion of Congress.

Finally, proposals may also be made by our own initiative. We, the People, may directly propose amendments to the Constitution upon petition of at least 12% of all registered voters, and provided that every legislative district is represented by at least 3% of its registered voters. The last sentence in Section 2 of Article XVII makes it imperative for Congress to enact legislation to implement this provision.

Congress has the sole discretion to decide on which mode to employ in proposing changes to the Charter, save, perhaps, for the third mode on People’s Initiative. Be as it may, Article XVII makes it imperative that the product of either ConCon or ConAss must be submitted to the people for ratification through a referendum. [Section 4]

Finally, the Supreme Court, even after Congress has convened itself into a ConAss, can still strike down such measure if it appears that the conditions precedent to the convening of the ConAss was attended with ‘grave abuse of discretion amounting to lack or excess of jurisdiction’. [Section 1, Article VIII] Hence, even if it is the sole discretion of Congress to choose which mode of proposing changes to the Charter, the Supreme Court can still come in and strike down such as unconstitutional.

In other words, while we may rage against the railroading of the ConAss resolution by our Honorable Representatives (Aside: I cringe whenever I hear them refer to themselves as ‘representatives’ – they seldom genuinely represent our interests), we must do so in the light of what the Constitution actually provides. Although we are all glad that we, as a people, are edifying ourselves (about time that we do) with the provisions of our Constitution and are engaging in healthy debates, let us not fall prey to our emotions.

The House of Representatives may have passed the resolution but such would remain meaningless if the Senate refuses to pass an equivalent resolution. Again, Mr. Speaker, without a similar move by the Senate, the resolution doesn’t mean anything and you cannot ‘convene immediately’.

Again, this is a call for sobriety. If we do not want ConAss as a mode of proposing changes to our Constitution, then let us make sure the men and women who are supposed to represent our opposition would, in fact, represent our sentiments. If not, let us turn to our Senators – Senators Arroyo and Pimentel have categorically stated that the Senate will not pass a similar resolution. If the Senate fails us, the Supreme Court has proven time and again that it heeds reason and fairness.

Dear Manila,

I write this still stunned. The power, the speed and the tenacity by which Philippine House Resolution 1109 transforming Congress into a Constituent Assembly was adopted, it was simply mind over matter. Your valiant and dedicated Congressmen fought sleep and sanity and reason. The Eighth Republic as you slept, Manila, was conceived and dedicated and they dream for it to endure. This even as other more important legislation were set aside like the Reproductive Health Bill and measure on Comprehensive Agrarian Reform.

While you slept, the media whose promise has always been to inform the Filipino people, failed you miserably save for coverage from ABS-CBN’s News Channel and a handful of others. It failed to be your eyes and ears at a moment you most needed it. It preferred to put sex tapes and gossip above the national interest. Perhaps they thought you wouldn’t be interested or wouldn’t care. Ratings after all are important.

Even as Mainstream Media stood idly by despite repeated calls from many of those online to COVER IT, our primary vector was Twitter. It has become a messaging service that kept the fires going. And our noise and our grievance and our indignation could only be expressed here on Cyberspace. @caffeinesparks was our eyes and ears at the Batasan. She watched and tweeted as Congress legalized insanity. Soon enough streams started coming online. There was even a point, sparks was about to be evicted from her place at the gallery.

HR1109 is by no means the End. It could be the beginning of the end. When you wake up, slow and inept the defense for the Seventh Republic may be but I hope the people will challenge the House’s stupidity in every forum. For all its worth: I urge every Filipino from every walk of life, from across the globe to rise to its defense!  And our united opposition against this measure must not give any quarter. It must show every bit of tenacity that the Asses have displayed!

Don’t get me wrong. Charter Change, per se isn’t wrong. I believe there are many other ways to right this ship of state long before we have to evoke the option of playing with our Constitution. And as Corruption fuels this country, do you trust the men and women running it to change the very foundation of the Republic? To have every opportunity to pervert and twist this nation to their very image?

There are even pro-Charter Change like @faithlessphil who tweeted:

Here is the thing: I’m FOR a constitutional revision. Our joke of a senate is enough reason for change. But Jesus, not this way.

In more ways than one, definitely not this way.

The crime and cancer of corruption is everywhere, preying on the spirit of this nation. And as we witnessed a few weeks ago durning the Great Book Blockade of 2009, you, Manila, is hardly interested in fighting it.

Perhaps that’s the writing on the wall and many of us who insist otherwise, prefer to ignore it because we think it is wrong.

Like the Britain of Alan Moore’s book, V for Vendetta, Manila, you’ve surrendered responsibility for this country, preferring the relative entertainment of schadenfreude. You’ve decided to institutionalize idiocity, gossip and farce.

I tweeted this as the events of #conass unfolded:

#philippines is an example of how a republic can slowly die. w/o fanfare save for few tweets to chronicle the beginning of its end. #conass

This link to a twitter stream is the real-time indignation and opinion of real Filipinos. If you tweet, be sure to append on any part of your twitter post the hashtag #conass and your voice will be added to that stream. And oh, you don’t need a twitter account to read it. [FilipinoVoices is also streaming this copy, which you could find to the right of every page of this blog].

The railroaded ConAss was like Pearl Harbor, greeted by little defense. It wasn’t like Pearl Harbor because there was no shock nor awe that America felt at the time. There was the tweet, and plurk, and stream and post of a few because those were the only vector by which we could express our regret, our sadness and our fear that democracy might be dead and we willingly let it die.

If the Seventh Republic should die, one can only hope that the Eighth, no matter how it was conceived or born will not let its predecessor die in vain.

@cocoy

UPDATE/EDIT. This is an archive of #conass twitter stream, up until 0530 Manila time via @printyourtweets (PrintYourTweets.com):

#conass twitter stream archive

UPDATE-2 sorry, forgot to mention that it was @mlq3 who first shouted out online that this thievery was happening.

UPDATE-3 i’m including @mlq3′s archive of tweets since most of his tweets were not registered with #conass
Mlq3 Archive Conass

UPDATE-4 you should also check out The Four-Eyed Journal and Momblogger’s take on the whole ConAss issue.

(Photo credit: Tobias Engay, MRS-PRIB / 03 June 2009 10:37:47 AM via congress.gov.ph)

My original post on the SCoRP decision  is at Philippine Commentary and the Global Post.

Based on the Carpio ponencia, my calculation is 220 District plus 55 Party List plus 24 Senators makes 299 Members of Congress. Three fourths of this number is 225 rounded up, which must all come from the 275 House Members that the SCoRP now says comprise the Lower House. The amazing thing is the Carpio ponencia claims whenever the Congress created 4 new Legislative Districts more than the original 200, they in effect created one new Party List seat and increased the Constitutional maximum from 250 to 255. Automatically and implicitly, without passing a special law to explicitly do so!

From a mathematical standpoint, the most cogent and rigorous discussion of the Party List System is to be found in the work of Dr. Felix Muga II of the Ateneo Math Dept with whom I have had many fruitful exchanges over the years.

Although the recent SCoRP ruling was unanimous on the matter of how “additional seats” for the Party List are to be allocated to the qualified “winners” of the election, the real story I think is in the razor-thin edge (8-7) by which SCoRP continued the ban on “national political parties” against their direct participation in the Party List System.  The Concurring and Dissenting Opinion of Chief Justice Reynato Puno, who looks like he had to break a 7-7 tie in favor of the eventual majority, is key to understanding the inner struggle that must have gone on. It is uncharacteristically “emotional” for a ponencia by the Chief Justice.

On the Con-Ass Resolution filed in the House of Representatives yesterday, I present a very basic argument:

A mere House Resolution, which is an official Act of the Lower House, even one signed unanimously by every Member of the HoR, does not have the power or authority of Law to convene “The Congress” to a Flag Raising Ceremony without a Concurrent Senate Resolution. What more a Constituent Assembly?

Should a “justiciable issue” manage to be filed, a Minute Resolution from SCoRP ought to be sufficient for its proper disposal as a toxic waste of the people’s time and money, and a strain on the people’s forebearance of Evil Clowns.

There is an alleged ambiguity in the 1987 Constitution because it does not specify “voting separately” as in 1935, or “voting jointly” as in the Martial Law provision. But this ambiguity is not some kind of show-stopping flaw that now requires Supreme Court action. All it means is that the Congress can and must exercise its discretion in HOW it will comply with the Constitution whenever it exercises this power to propose amendments or revisions for approval at plebiscite.  In fact, every Congress since 1987 has adopted Rules that undoubtedly comply with the Constitution.

Rule XX of the present Rules of the House of Representatives states

Section 139. Proposals. The Congress, upon a vote of three-fourth (3/4) of all its members, may propose amendment(s) or revision of the Constitution.

Section 140. Form of Proposals and Procedure for Adoption. Proposals to amend or revise the Constitution shall be by resolution which may be filed at any time by any Member. The adoption of resolutions proposing amendments to or revision of the Constitution shall follow the procedure for the enactment of bills.

The Supreme Court (in a Minute Resolution) recently dismissed Kampi Rep. Adam Relson Jala’s petition to have the present House Rule on charter change proposals declared unconstitutional, which Rule upholds the 1935 concept of Congress proposing charter changes with House and Senate voting separately. But Kampi President and Camarines Sur Rep. Luis Villafuerte is leading one last desperate chacha attempt on Gloria’s behalf based on certain quaint and curious notions about bicameral legislatures and constitutional arithmetic that are here examined and vivisected. He explained his views to Pia Hontiveros on ABSCBN’s Strictly Politics program last Tuesday. (MP3)

Manuel L. Quezon III mentions 1935 Constitution with some nostalgia on his blog noting how well it served the Second Republic. Unlike the present charter, 1935 was certainly unambiguous on Charter amendments:

Art. 15 Section 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

The 1987 charter in stark contrast, too tersely states:

Art 17 AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

In fact as reflected in the Rules that the House and Senate have adopted since 1987, the Congress has already decided that “upon a vote of three fourths of all its Members” means with House and Senate voting separately under three fourths majority rule to propose charter changes, just as with ordinary legislation.

Alternatively, the Congress could decide to comply with the 1987′s three fourths majority rule by having House and Senate Members voting jointly and requiring a three fourths majority rule regardless of which chamber they belong too, as the unicameral Con-Ass artisans like Rep. Luis Villafuerte (Kampi, Camarines Sur) would like the Supreme Court to force it to do.

Rep. Luis Villafuerte, head of the President’s party Kampi, is leading the latest chacha attempt on her behalf. He asserts that when the Members of Congress are proposing charter changes they are not acting as legislators but are exercising something he calls “constituent power” — the power to propose changes — and that therefore they must convene in a special joint session — a Constituent Assembly — for the purpose of debating and approving proposed charter changes. Moreover, he would like the SCoRP to rule that the Congress vote jointly, please. He told Pia Hontiveros of ABSCBN News Tuesday that he was trying to “trigger a justiciable case” to force the Supreme Court to decide upon what the 1987 provision means: voting jointly or voting separately on proposed charter changes.

Here is a subtle point that is however devastating to Villafuerte, and the Unicameralists. Regardless of whether the Congress decides to use “voting separately as House and Senate” or “voting jointly as a Constituent Assembly” when approving proposed charter changes, the Congress can only come to that decision itself of what chacha voting mode it will use, by an unavoidable process in which the House and Senate first separately vote to adopt such a mode or convene such a joint constituent assembly! It is the “default mode” of operation of a bicameral Congress, to which, and not to its individual Members, the thing Villafuerte calls “constituent power” is actually vested.

Recently, the good Rep. Villafuerte has been circulating a Resolution that he claims will have the “necessary number of signatures” (198, or three fourths of (238 + 24) to convene Congress into a Constituent Assembly without a separate Senate approval as well as trigger a challenge in the Supreme Court.

The ineluctable fact of course is that even if every single Member of the Lower House were to sign the Villafuerte Resolution, it would remain a Resolution of the Lower House, nothing more, nothing less. As such, it cannot compel the Senate, nor therefore the Congress itself, to convene such a Con-Ass. Ironically, I believe that the House and Senate can separately, by simple majorities vote to convene such a Constituent Assembly without need of Supreme Court orders. Being within Congress’ discretion, it would be an abuse of its own jurisdiction for the Supreme Court to be ordering the Congress to adopt a voting mode one way or the other.

SCoRP will probably need nothing more than a Minute Resolution to despatch Villafuerte’s Resolution to the dustbin of Failed Petitions for Advisory Opinions from the Supreme Court. I predict the same ignominious end for the Villafuerte Resolution as met Adam Relson Jala’s own attempt to elicit a favorable Supreme Court ruling for “unicameral con-ass”.

WHY IS THE 1987 PROVISION AMBIGUOUS?

It will be recalled that it was only by a single slim vote that the 1986 Constitutional Commission which drafted the present charter stayed with the same basic form of government that existed before Marcos and his 1972 Martial Law constitution, which supplanted the 1935 charter. The Philippines almost became a unicameral Parliamentary form of government. Thus Fr. Joaquin Bernas has explained that it was an oversight that Art. 17 was not fleshed out for the eventual choice of a Presidential system with a bicameral legislature.

Nonetheless, the so-called ambiguity that exists in 1987 Art. 17 Sec. 1 is not such that the Supreme Court has to resolve the matter.

From the start, both the House and Senate understood that they could comply with the Constitution in one of two very different ways. First they could’ve decided to propose amendments or revisions while VOTING JOINTLY and ignoring the difference between membership in the Senate and membership in the House. But they did not do that. Instead they chose to adopt the same procedure they use in enacting laws in a bicameral legislature, i.e. with House and Senate VOTING SEPARATELY. Thus both House and Senate have consistently adopted Rules that obey the Constitution’s three fourths majority requirement–even if that is done by voting separately.

The present attempt to bring about Charter Change before 2010, led by Rep. Luis Villafuerte (Kampi, Camarines Sur), is premised upon the assertion that because it would ALSO be Constitutional for the House and Senate to adopt Rules which would allow them to vote jointly on such proposals, he now intends to “trigger a justiciable controversy” for the Supreme Court to settle the issue and possibly wangle an interpretation that would require the Congress to vote jointly as desired by Villafuerte and company. There is a legitimate expectation that by late 2009, ALL the members of SCoRP will have been appointed by President Arroyo and handpicked for just this decision.

But there are several flies in this conceptual ointment.

In the first place, there can be no question that for the Congress to adopt the mode of voting jointly, the House and the Senate would have to vote separately to adopt that mode by repealing their present House and Senate Rules which prescribe voting separately!

Next, the Supreme Court might find it perverse to be asked to rule upon a matter that the Congress appears perfectly competent and entitled by the Constitution to decide entirely on its own, in the full and free exercise of its discretion, powers and duties. Indeed, the Congress, both House and Senate separately, have consistently adopted Rules that are natural and appropriate to a bicameral legislature and clearly obey the Constitution.

But the good Rep. Villafuerte believes that when the Members of Congress are exercising the power to propose amendments or revisions to the charter, they are not acting as legislators because it is “constituent power” they are exercising, not legislative power. Thus, he insists, that when exercising its constituent powers under the Constitution, the Congress must convene itself into a completely different entity, called a Constituent Assembly (Con-Ass). And here the good Rep. Villafuerte makes a stunning leap and claim to trigger his hoped-for justiciable controversy: he asserts that three-fourths of all the Members of the Congress (even if they are all members of the House) can vote to convene Congress into such a Constitutent Assembly!

Occam would’ve castigated Villafuerte for an excess of appurtenances. I believe that the Congress COULD convene itself into such a Constituent Assembly if the House and the Senate voted to do so with simple majorities–but voting separately!

There are many places in the Constitution, in which it is entirely silent on HOW certain things are to be achieved or accomplished, usually leaving it up to Congress to pass “enabling legislation” for that purpose.

In reality, the Congress has already resolved the ambiguity in the chacha provision when the House and Senate each separately adopted Rules for exercising the power to propose amendments and revisions according to the procedure for enacting bills into law, but instead of simple majority votes in each of the House and Senate, they impose the Constitution’s three fourths majority rule, still voting separately.

In other words, the Congress has interpreted the 1987 provision as if it were the 1935 provision, with each of the House and Senate voting separately. In my opinion this is perfectly reasonable and right, since the basic form of the government with a bicameral legislature, a strong chief executive and an independent judiciary has not changed. We still have a presidential form of government with a bicameral legislature, not a unicameral parliamentary one.

Speaking to Pia Hontiveros (Strictly Politics, ANC) Rep. Luis Villafuerte, President of the Kampi Party of Gloria Macapagal Arroyo, said he wants to trigger “a justiciable controversy” to get the Supreme Court to rule definitively on the meaning of Article 17 Sec. (1). For this purpose he has drafted a resolution on which he says he only needs 198 signatures to trigger that justiciable controversy. But Rep. Villafuerte informs the audience that his resolution does not contain any specific amendment or revision of the Constitution as such, but only “establishes the mode” by which Congress is to exercise its “constituent power” to propose such changes for ratification at plebiscite.

The leitmotif of the Villafuerte mode of exercising constituent power is the concept of a “Constituent Assembly (Con-Ass).” Notice that in the 1935 provision, Congress “in joint session assembled” proposes amendments with House and Senate Members voting separately and obeying the three fourths majority rule. The Villafuerte Resolution however contemplates an entirely different entity altogether than that found in the 1935 Constitution. He envisions a Constituent Assembly whose Members are all the Members of Congress with no distinction as to whether they are Senators or House Members.

The Villafuerte Con-Ass looks an awful lot like a Constitutional Convention composed of all the Members of the Congress. But since the identity of each Members of Congress as Senator or Congressman has been obliterated, we must presume that this new body, this Con-Ass, must also elect separate leaders to run the Con-Ass, with a separate bureaucracy and funding requirements, office space, support staff and facilities, which of course, the same bunch of Members, but acting in their alter ego capacity as the Congress, must fund in the budget.

When exercising “constituent power”, claims Rep. Villafuerte, the Members of Congress are not acting as legislators and therefore Congress can dispense with its normal mode of “voting separately” as it does on normal legislation, ignore the difference between Senators and Congressmen and act just like a Constitutional Convention.

All in all, Villafuerte’s conception of charter change through the Congress involves the re-organization of the Members of the Congress into an entirely separate entity that is a unicameral Constituent Assembly. This is very different from the 1935 “joint session” of the Congress, since the latter unambiguously upheld the bicameral nature of the Congress even when exercising what Villafuerte calls constituent power.

There is nothing ambiguous about the 1987 provisions grant of constituent power–the power to propose charter changes–to THE CONGRESS, and not to its individual members as some kind of personal entitlement. Thus there could be nothing more contradictory of the plain language of the Constitution –that any revision or amendment may be proposed BY THE CONGRESS– than the following statement of the good Rep. Luis Villafuerte: (MP3)

Vice President Laurel and my father were members of that UP Law class that figured so much in the history of the nation. This was the Class of 1952. Right after Doy fell from the graces of Queen Cory, my father and Mr Laurel were back in touch after those years.

My family and the Laurels are good friends. My grandfather served under the Second Republic. All my uncles and my father were sent to Japan for studies together with the Laurel sons.

My dad passed away in 1991, a soldier to the end, in defence of the Republic and the Constitution. My father never believed that Corazon Cojuangco Aquino was a duly elected President of the Philippines. My dad was willing to accept that she was installed as President of the Philippines as a result of a bungled coup d’ etat.  Since she abrogated the Constitution then in force, she  indeed had ABSOLUTE POWER and was the Constitution personified  when she proclaimed her Freedom Constitution.  Corazon Aquino was the only President of the Philippines in history to have such power. Not even the Dictator that the people booted out and thus gave her the Presidency, had that power. But all these became moot when Aquino appointed a non-elected Constitutional Commission that wrote a charter the electorate overwhelmingly ratified. My father then considered this Constitution as expressive of the Soverein will of the people.

This was the context of the series of notes my dad and Doy Laurel exchanged. They were exploring the ideas what could have been better. Corazon Aquino was President yes, but Laurel was expected to run the government as Prime Minister to provide continuity and to secure the necessary reforms.

Corazon Aquino dissolved the Batasang Pambansa (she had the power to do so) and the 1973 Constitution. However it puzzles me that she could have called a new election and surely the Parliament will be 90% filled with her supporters. The Parliament would have anointed her as President. Even in our Presidential system, the legislature is really the one who presents the crown to the President by proclaiming her election by the people. In the Parliamentary system, this is even clearer and the historical link that the Head of State is answerable to the people’s representatives is sustained. In England today the Queen cannot govern without Parliament. The Queen is in Parliament.

By Aquino’s abrogation of the 1973 Constitution and the fiat of appointing non elected Constitiutional Commissioners, she undoubtly started our route to constitutional chaos and madness. The 1987 Constitution had according to my father, strengthened the separation of powers and as a result destroyed much of the American style checks and balances whose workings are guaranteed more by convention rather than statute. This is the 1987 Constitution’s achiless heel and both Dad and Doy expected another God forbid, an EDSA! I was with Dad when Doy and he had dinner and this was the topic. The year was 1990, about one year before my dad passed away.

Doy lived to see another EDSA and fortunately my Dad missed out on it. He would have wept when the Generals and the Sin went up on stage to present the crown to our Glorious Queen with blessings from the Davide. The people present the crown through their elected representatives. That is Representative Democracy. With these precedents, we may have no representative democracy anymore. BTW Dad the patriotic Freemason was never thrilled by Jaime Cardinal Sin!

My father passed away at a dawn in 1991 after having a chat with Doy Laurel the night before. Doy Laurel was one of the last people to have spoken with him. I never knew what they spoke about for VP Laurel never spoke about the conversation to me. What I remember from Doy’s condolences to the family is that my Dad never wavered in his allegiance to the Constitution.

My father died as a general officer of the Armed Forces having seen combat in his career, first in Korea, Vietnam and against those who wanted to destroy the Republic.

I reflect on these after watching Mrs Celia Diaz Laurel on cable TV being  interviewed about her husband’s place in EDSA history. Ever gracious, Mrs Laurel never showed any bitterness but she repeated what I heard from my Dad. “Doy expected to run the government”.

Perhaps we can still repair the unintended damage of EDSA 1. Gloria Macapagal Arroyo must have recognized it in saying that the world cannot accept another EDSA. But if she becomes the Great Apo once more, we may have more EDSAs!

But I still remember one thing that 1990 evening. Doy asked me what I thought about it. I said “She had all that power to implement reforms and what has happened. Brownout!”

And the power went out and the gensets roared!

The relationship between Morality and Theology within established religions is well-understood.  The “Ten Commandments” of Morality come from the God of Theology (whichever one prefers)– Yahweh of the Jews, Allah of the Muslims, Father-Son-N-Holy-Ghost of the Catholics, Jesus of the Christians,  Shiva of the Hindus–who reveal themselves through Prophets, Revelations, and even Divine Messengers and whose will in moral dilemmas is constantly interpreted by Churches and Faiths as a matter of spiritual guidance to their adherents.  Religion has been a most useful adaptation of humanity throughout history as a channeler of morality.

But we may well ask — what happens to Theology and Morality in a Democracy that upholds the Principle of Freedom of Religion?

1987 Constitution Bill of Rights Art. III Sec. 4  

[1] No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.

[2] The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.

[3] No religious test shall be required for the exercise of civil or political rights.

Notice that [1] and [2] are statements of the absolute neutrality towards Religion and its free exercise demanded by the Constitution of the State, while [3] is really a statement about Morality in a constitutional democracy.  Please notice that “the exercise of civil and political rights” by the citizens, is not to be subjected to any “religious test”.  However, such exercise of human rights in a civil society is congruent with the personal moral universe of each citizen, and becomes the responsibility of the State which must apply legal tests to see whether or not such exercise of rights is legitimate, or if it violates the rights of others, or of the State itself. But not religious tests.  Now, since we are referring here to the morality or immorality of the exercise of rights by citizens, the fact that the Constitution prohibits any religious test of such exercise effectively disconnects Morality from any particular Theology in a constitutional democracy.

It is most useful to think of the Constitution as a Social Contract between the People who ratify it and the representative Government they establish by it.   As a contractual agreement between parties,  the TEXT of the Constitution may be regarded  as compleat and self-contained, until amended by them or revised.  As such, it is only secondarily the Last Will and Testament of its possibly long dead authors and framers.  The Constitution itself ought to be the primary source to be interpreted throughout the ages, and not some mysterious “rollos” of the deliberations and recorded opinions of Davide, Bernas, Maambong, et al in 1986 (and these rollos are after all, “text” themselves of a rather murky provenance and composition.) 

The  Constitution is a Social Contract between the people who ratify it and the Government they establish by it.  As a piece of written text, the Constitution is a powerful combination of memes for it comprehensively defines  the broad outlines of our entire way of life with rhetorical precision (if not always the ideal brevity) whose every phrase and punctuation inspires years of litigation and decides the fate and fortunes of men in their relationships with one another.

As a Contract between People and State, the Constitution defines a remarkable kind of Morality that governs them both, consisting of principles, rights, duties, powers, limitations, checks and balances, separations, unions and intersections governing the entire gamut of human and institutional behavior under various social and political arrangements. It is quite a Catechism of secular morality and philosophy that covers every conceivable area of human affairs in a representative Democracy.

The Constitution has morality — lots of it — but no theology, no religious tests for what is moral or immoral in the exercise of human rights. None. 

And so the question remains: what IS the basis for, and the true test of moral behavior in a Democracy if the Bill of Rights explicitly forbids the use of God or Religion?

WHERE DOES DEMOCRACY’S MORALITY COME FROM? 

[I must admit I don't know the answer yet...! Do you?]

The Luneta was meant by the American founders  of the Philippine Imperial Republic as our own Mall. In fact according to the Burnham plan, where Santa Isabel college now stands would have been the site of the Philippine Capitol. However, the President of the Commonwealth, Manuel Quezon had other priorities so the plan never was completely implemented. What we have are the Post Office, the Finance and Tourism buildings and the Old Congress now National Museum. 

But that’s where the similarity ends.  The United States Constitution has 100% worked in ensuring that in a democracy, the transfer of State power is according to the law. In fact even the timing and the traditions narrated in a step by step manner by CNN are rooted in the law and the constitution. The CNN coverage is a lesson in civics for Pinoys especially what we have trashed with the inheritance the United States gave us.

The US Constitution was in danger during the Civil War, yet it survived. It was in danger with the Nixon Watergate scandal but it functioned as expected. Surely the constitution was amended many times, but the amendments were not to support the benefit of an individual or group, but the common weal.

This is in stark contrast to our recent ridiculous presidential inaugurals. Quezon had his on the Congress steps (in imitation of the American practice). When the Republic was recognized, we had the postwar inauguarals in the Quirino grandstand (still vaguely in line with American practice). Cory had hers in a venue with Masonic nationalist origins, the Club Filipino. Erap did a tragic innovation. He had his in the Roman Catholic Church of Barosoain. My Masonic lolos and tios were horrified!  My late granduncle predicted an early demise for the Erap presidency. He said Erap had no idea of history. The Aguinaldo presidency was doomed after his “inaugural” in the Malolos Congress. The prediction came to pass. Erap was thrown out of the Palace in less than 3 years! Gloria just continued with the inaugural innovations. She had hers in Cebu, a province with a bit of separatist tendency from the rest of the Philippines! Gloria probably was aware of the Masonic legend. She never was inaugurated inside a Roman Catholic church (although she was anointed and the crown given to her on the steps of EDSA shrine)

But we all know the tribulations of the Gloria presidency. So I think my Masonic elders have wisdom in their belief. We should celebrate the secular nature of the Presidency and show to the people that the government’s three branches are one in vision and purpose if we did not trash our American inheritance. This disunity is evident especially in Congress. The Senate sits in an insurance headquarters near malls and theme parks while the House sits in its own abode 20 kilometers east.

So the Obama inaugural which has attracted worldwide attention as no other US presidential inaugural has; is an ironic comment on the “no apologies” for EDSA 2 posters  in the metropolis. Those who do not want to apologize for EDSA 2 are likely the one who are betraying, had betrayed or plan to betray the Constitution of the Philippines.

In just one hour of this posting, Barack Hussein Obama will swear to “preserve, protect, and defend the Constitution of the United States”. As long as he does so, he won’t betray the American people.

That is the best lesson for us in the Obama inaugural.

The host was Dean Alex Brillantes of the College of Public Administration. Other notables seen were Senator Pia Cayetano, Congressman Antonio Cuenco, Congresswoman Faysah Dumarpa, among others.

Watch the videos.

Introduction of the Guest Speaker by Senator Aquilino Pimentel, jr

Senator Sharon Carstairs’ Speech, Part 1

Senator Sharon Carstairs’ Speech, Part 2

Senator Sharon Carstairs’ Speech, Part 3

Senator Sharon Carstairs’ Speech, Part 4

Senator Sharon Carstairs’ Speech, Part 5

Senator Sharon Carstairs’ Speech, Part 6

Senator Sharon Carstairs’ Speech, Part 7

Q&A 1

Q&A2

Q&A3

Q&A4

Q&A5

Q&A6

Q&A7

Q&A8

Q&A9

An Interview with Congressman Antonio Cuenco

For our readers’ reference, here’s a list of some of those bills and resolutions, and their principal authors.

Taken from the House of Representatives Committee on Constitutional Amendments:

HB01752 – AN ACT CONSTITUTING A CONSTITUTIONAL CONVENTION TO AMEND OR REVISE THE PRESENT CONSTITUTION, APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES, authored by Raul Gonzales, jr (LAKAS-CMD, Lone District Iloilo City)

HB01876 – AN ACT CALLING FOR THE ORGANIZATION OF A CONSTITUTIONAL CONVENTION AND POSTPONEMENT OF THE 2007 BARANGAY ELECTIONS, authored by Carmelo Lazatin (LAKAS-CMD, 1st District Pampanga)

HB02158 – THE CONSTITUTION REFERENDUM ACT OF 2007, authored by Pryde Henry Teves, (LAKAS-CMD, 3rd District Negros Oriental)

HB02479 – AN ACT PROVIDING FOR PEOPLE’S INITIATIVE TO AMEND THE CONSTITUTION, authored by Roque Ablan, jr, (LAKAS-CMD, 1st District Ilocos Norte)

HB03149 – AN ACT CALLING FOR A CONSTITUTIONAL CONVENTION FOR CHANGING THE 1987 CONSTITUTION, APPROPRIATING FUNDS THEREFORE, authored by Abraham Kahlil Mitra (NPC, 2nd District Palawan)

HB03473 – AN ACT CALLING FOR THE ORGANIZATION OF A CONSTITUTIONAL CONVENTION COINCIDING WITH THE 2010 NATIONAL ELECTIONS, authored by Carmelo Lazatin (LAKAS-CMD, 1st District Pampanga)

HB04075 – AN ACT IMPLEMENTING HOUSE CONCURRENT RESOLUTION NO. 17 OF THE CONGRESS OF THE PHILIPPINES CALLING FOR A CONSTITUTIONAL CONVENTION TO PROPOSE AMENDMENTS TO, OR REVISION OF, THE 1987 CONSTITUTION AND APPROPRIATING FUNDS THEREFOR, authored by Victor Francisco Ortega (LAKAS-CMD, 1st District, La Union)

HCR0003 – RESOLUTION CALLING FOR A CONSTITUTIONAL CONVENTION TO PROPOSE AMENDMENTS TO THE CONSTITUTION, authored by Felix Alfelor, jr (KAMPI, 4th District Camarines Sur)

HCR0006 – CONCURRENT RESOLUTION CALLING FOR A CONSTITUTIONAL CONVENTION TO PROPOSE AMENDMENTS TO, OR REVISION OF THE CONSTITUTION AND PROVIDING FOR THE ELECTION OF DELEGATES IN NOVEMBER 2008 TO COINCIDE WITH THE BARANGAY ELECTIONS, authored by Edelmiro Amante (KAMPI, 2nd District Agusan del Norte)

HCR0007 – CONCURRENT RESOLUTION CALLING FOR A CONSTITUTIONAL CONVENTION TO PROPOSE AMENDMENTS TO, OR REVISION OF, THE CONSTITUTION AND PROVIDING FOR THE ELECTION OF DELEGATES TO COINCIDE WITH THE ELECTION OF BARANGAY OFFICIALS IN OCTOBER 2007, authored by Antonio Cuenco (PROMDI-BOPK-LAKAS, 2nd District Cebu City)

HCR0010 – CONCURRENT RESOLUTION CONSTITUTING BOTH HOUSES INTO A CONSTITUENT ASSEMBLY TO PROPOSE AMENDMENTS TO THE CONSTITUTION LIFTING THE TERM LIMIT FOR MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ELECTIVE LOCAL PUBLIC OFFICIALS, authored by Jose Solis (KAMPI, 2nd District Sorsogon)

HCR0015 – CONCURRENT RESOLUTION TO AMEND THE CONSTITUTION TO ESTABLISH A FEDERAL FORM OF GOVERNMENT THROUGH CONSTITUTIONAL CONVENTION OR BY CONVENING CONGRESS INTO A CONSTITUENT ASSEMBLY, authored by Monico Puentavella (LAKAS-CMD, Lone District, Bacolod City)

HCR0017 – A CONCURRENT RESOLUTION CALLING FOR A CONSTITUTIONAL CONVENTION TO PROPOSE AMENDMENTS TO, OR REVISION OF, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, authored by Victor Francisco Ortega (LAKAS-CMD, 1st District, La Union)

HCR0018 – A CONCURRENT RESOLUTION CALLING ON THE SENATE AND THE HOUSE OF REPRESENTATIVES TO CONSTITUTE THEMSELVES AS A CONSTITUENT ASSEMBLY TO INTRODUCE AMENDMENTS TO THE CONSTITUTION, authored by Roque Ablan, jr, (LAKAS-CMD, 1st District Ilocos Norte)

HCR0019 – A CONCURRENT RESOLUTION TO CONVENE THE CONGRESS INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF REVISING THE CONSTITUTION TO ESTABLISH A FEDERAL SYSTEM OF GOVERNMENT, authored by Edelmiro Amante (KAMPI, 2nd District Agusan del Norte)

HJR0014 – JOINT RESOLUTION TO CONVENE THE CONGRESS INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF REVISING THE CONSTITUTION TO ESTABLISH A FEDERAL SYSTEM OF GOVERNMENT, authored by Antonio Cuenco (PROMDI-BOPK-LAKAS, 2nd District Cebu City)

HJR0015 – JOINT RESOLUTION TO CONVENE THE CONGRESS INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF REVISING THE CONSTITUTION TO ESTABLISH A FEDERAL SYSTEM OF GOVERNMENT, authored by Faysah Dumarpa (LAKAS-CMD, 1st District Lanao del Sur)

HR00056 – RESOLUTION CALLING FOR THE ADOPTION BY THE HOUSE OF CONGRESS OF THE PROPOSED AMENDMENTS TO THE CONSTITUTION THAT WAS SUBMITTED BY THE CONSTITUTIONAL CONSULTATIVE COMMISSION, authored by Jose Solis (KAMPI, 2nd District Sorsogon)

HR00548 – PROPOSED RESOLUTION TO PROMOTE EFFICIENCY IN GOVERNANCE BY UNITING THE EXECUTIVE AND LEGISLATIVE FUNCTIONS OF GOVERNMENT BY AMENDING SECTION 13, ARTICLE VI AND SECTION 16, ARTICLE VII OF THE 1987 CONSTITUTION, authored by Hermilando Mandanas (LP, 2nd District Batangas)

HR00550 – PROPOSED RESOLUTION TO IMPROVE GOVERNANCE BY CHANGING THE TERM OF OFFICE OF LOCAL ELECTIVE OFFICIALS EXCEPT BARANGAY OFFICIALS, AND MEMBERS OF THE HOUSE OF REPRESENTATIVES FROM THREE (3) TO FOUR (4) YEARS AND TO SYNCHRONIZE LOCAL AND NATIONAL ELECTIONS BY AMENDING SECTION 7, ARTICLE VI; SECTION 8, ARTICLE X; AND SECTION 2, ARTICLE XVIII OF THE 1987 CONSTITUTION, authored by Hermilando Mandanas (LP, 2nd District Batangas)

HR00567 – RESOLUTION TO CONVENE THE CONGRESS INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF REVISING THE CONSTITUTION TO ESTABLISH A FEDERAL SYSTEM OF GOVERNMENT, authored by Rufus Rodriguez (PMP-UNO, 2nd District Cagayan de Oro)

HR00730 – RESOLUTION TO CONSTITUTE THE SENATE AND THE HOUSE OF REPRESENTATIVES INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF DRAFTING AND PROPOSING AMENDMENTS TO, OR REVISION OF, THE 1987 CONSTITUTION PARTICULARLY TO ESTABLISH A UNICAMERAL CONGRESS, authored by Adam Relson Jala (LAKAS-CMD, 3rd District Bohol)

HR00737 – RESOLUTION PROPOSING AMENDMENTS TO SECTIONS 2 AND 3, ARTICLE XII OF THE CONSTITUTION TO ALLOW THE ACQUISITION BY FOREIGN CORPORATIONS AND ASSOCIATIONS, AND THE TRANSFER OF CONVEYANCE THERETO, OF ALIENABLE PUBLIC LANDS AND PRIVATE LANDS, authored by Prospero Nograles (LAKAS-CMD, 1st District Davao City)

HR00739 – RESOLUTION TO CONVENE THE CONGRESS INTO A CONSTITUENT ASSEMBLY FOR THE PURPOSE OF REVISING THE CONSTITUTION TO ESTABLISH A FEDERAL SYSTEM OF GOVERNMENT, authored by Jose Solis (KAMPI, 2nd District Sorsogon)

HR00769 – RESOLUTION PROVIDING FOR SPECIFIC AMENDMENTS AND REVISIONS TO THE 1987 CONSTITUTION, authored by Pedro Romualdo (LAKAS-CMD, Lone District Camiguin)

HR00819 – RESOLUTION TO CONVENE A JOINT SESSION OF CONGRESS TO REVISE THE CONSTITUTION AND FOR OTHER PURPOSES, authored by Nur Jaafar (LAKAS-CMD, Lone District Tawi-tawi)

Here are a couple from the Senate as well:

SBN-1733 AN ACT PROVIDING FOR PEOPLE’S INITIATIVE TO AMEND THE CONSTITUTION, authored by Miriam Defensor-Santiago

SBN-1230 AN ACT PROVIDING FOR A SYSTEM OF PEOPLE’S INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION, authored by Richard Gordon

Enjoy!

the above quote from my previous thread had something to do with the dilemma of Justice Marshall in the case of Marbury v. Madison.

Part of that dilemma: What if despite our decision the Executive would not follow our decision? Are we not creating a constitutional crisis in this regard? Will this not cause embarassment on the part of the Court?

…

thus my question, had GMA go(ne) ahead with the MOA-AD and the (muslim) separatists had started exercising jurisdiction over these ancestral domains, how will the court implement its decision describing the agreement unconstitutional and therefore (should it) order the Army to repel the Muslim incursions?

It’s an interesting question.

For the benefit of our readers, let’s first take a quick look at that landmark case Marbury vs. Madison.

Wikipedia provides the context:

This case resulted from a petition to the Supreme Court by William Marbury, who had been appointed as Justice of the Peace in the District of Columbia by President John Adams shortly before leaving office, but whose commission was not delivered as required by John Marshall, Adams’ Secretary of State. When Thomas Jefferson assumed office, he ordered the new Secretary of State, James Madison, to withhold Marbury’s and several other men’s commissions. Being unable to assume the appointed offices without the commission documents, Marbury and three others petitioned the Court to force Madison to deliver the commission to Marbury. The Supreme Court denied Marbury’s petition, holding that the statute upon which he based his claim was unconstitutional.

Here, I believe is the meat of the matter discussing whether or not the acts of the Executive can be questioned and reversed by the Judiciary:

By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

If I understand JCC’s scenario, he asks how could the Supreme Court remedy a situation where the President will issue an order to the AFP to abandon Mindanao? If I understand him correctly, JCC predicates it on Article VII, sections 1 and 18 of the Constitution, which say:

Section 1. The executive power shall be vested in the President of the Philippines.

and

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines… (et sequentia).

That said, there could be a situation where the AFP is issued an order which is patently unconstitutional (as declared by the Supreme Court) by the Commander-in-Chief… but would the AFP follow it?

I submit that in theory, the AFP will not.

If I recall correctly, the Soldier’s Oath goes as follows:

I do solemnly swear that I will faithfully and conscientiously fulfill my duties as a soldier of the Republic of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.

The Nuremberg Principle IV (a matter of international law which our own state is bound to via Article II, section 2 of our own Constitution), says:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

There’s likewise Article 11, section 18, which says in part:

Section 18. Public officers and employees owe the State and this Constitution allegiance at all times… (et sequentia).

Finally, there’s Article 2, section 3, which says in part:

Section 3. …The Armed Forces of the Philippines is the protector of the people and the State.

So here are the principles from which I will argue my theoretical position:

- The Filipino solider’s allegiance begins and ends with the Constitution.

- Since it is not a defense to be following orders, whether illegal or legal, it becomes a defense — or, rather, the moral choice — for a soldier not to follow an illegal order.

- If the President issues an unconstitutional order, the Filipino soldier, being loyal first and last to the Constitution, can and will refuse such an illegal order.

The crisis, therefore, will not be between the Executive and the Judiciary, but rather between the caput and the sicarii. The Praetorians will turn their spathas against Caesar.

The Supreme Court, thus, by its power of interpreting the Constitution, gives the word by which the AFP will live by, no matter what the President says.

In theory, that is.