BACK TO CHARTER CHANGE

BACK TO CHARTER CHANGE
Joaquin G. Bernas, S.J.
The year 2009 was another year of varied attempts to achieve charter change. None succeeded. The last was the Lambino attempt to achieve change through initiative and referendum. The attempt was shot down for various reasons. First, the issue of whether there was an implementing law for charter change by initiative and referendum remained unsettled; second, even if there were an implementing law, the procedure followed was fatally defective; third and most important of all, the Lambino attempt was for a revision and not a simple amendment. Initiative and referendum can be allowed only for simple amendment and not for revision. (Incidentally, nobody seems to be thinking of initiative and referendum now.)
Another reason for the failure to achieve change was the fact that there was no agreement about the constitutional way of doing it. It was the tendency of those who studied constitutional law under the 1935 Constitution to think in terms of the amendatory process in that Constitution. Thus they tended to see a joint session of both Houses of Congress as the first necessary step towards attempting change. Understandably so, because the 1935 Constitution said “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.” They failed to see or ignored the fact that the 1987 Constitution is worded differently. It says “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.”
The current text says nothing about the necessity of a joint session of both Houses. Understandably so, because the current text was drafted at a time when the Constitutional Commission working on the draft was still thinking in terms of a unicameral National Assembly for the Philippines. Hence the current text is an almost verbatim copy of the amendatory provision in the 1973 Constitution which had a unicameral Batasang Pambansa. The understanding was that the text would be adjusted should the Commission opt for a bicameral Congress. The Commission opted for a bicameral Congress, which we now have, but failed to make the adjustment. Hence we have a text which does not tell us explicitly whether Congress should be in joint session or should vote separately if in joint session.
It is clear, however, that the function of initiating constitutional change has been given by the Constitution not to the President nor to the judiciary but to Congress. Thus, it stands to reason that whatever gap there is in the constitutional text on the amendatory process is for Congress to fill.
Now there is growing acceptance of the proposition that Congress, when acting as a constituent assembly, need not be in joint session but may act the way it does in ordinary legislation (because the Constitution does not require a joint session); but if Congress decides to be in joint session (since the Constitution does not prohibit it), and if they do, they must vote separately (because it is the basic intent of having two houses that the wisdom of decisions be subjected to separate votes).
The current leaders of Congress have come to an agreement that the procedure to be followed will be through separate sessions voting by three fourth votes of all the members of each house as they are and where they are. The procedure will follow the ordinary legislative process of having a proposition approved in one House and passed on to the other for similar action. Will it work? Are we now on a sure path to charter change in 2011 or even 2012? Not really.
It is good to remember that the leadership of Congress is but a small percentage of the total membership of both Houses and that the House of Representatives can easily nullify the votes of the Senate. There are currently 285 Representatives and only 23 Senators. Even if the Senate should vote unanimously, a majority of the House can always go in the opposite direction.
There is another factor to consider. The thinking seems to be that the non-joint session process, which I call the “fourth mode” of change, can give “surgical change” a better chance; that is, the change can be limited to the economic provisions. But the “fourth mode” does not prevent anybody in either house from proposing other amendments. The ARMM situation, a high concern of Mindanao politicians, can be a very inviting subject for amendatory consideration, among others.
Another factor to consider is that the “fourth mode” of charter change can still be challenged before the Supreme Court even if only as a dilatory tactic. Although the Supreme Court has no authority to review the substance of proposed changes (except when contrary to jus cogens), it has authority to review the validity of the procedure being followed.
Finally, what about the supposed indifference of the President to constitutional change? Legally the President has no role in the amendatory process, neither on the process being followed nor on the substance being proposed. But politically he can influence the vote of his supporters in Congress.
Will we therefore have constitutional change this year? Your guess is as good or better than mine.
10 October 2011

A “Red Mass” & A Salute

Before I say anything about the “Red Mass scheduled for next Wednesday,” let me jus take my hat off to Chief Justice Corona and former President Joseph Estrada.

In my last column I wrote that the invitation to Chief Justice Corona to attend the presidential inauguration placed the Chief Justice in a very awkward position. After all, President Aquino had snubbed him and had refused to take his oath before him. But Corona came nevertheless and patiently sat through the entire ceremony (even if his presence was not acknowledged in the President’s inaugural address). President Estrada for his part had fought hard to deny Aquino the presidency. He lost; but he too sat through the entire ceremony.

The presence of the two public figures was a humble but eloquent silent appeal for national unity.

* * * * *

Next Wednesday, at the Manila Cathedral, at 9 in the morning, His Eminence Gaudencio Cardinal Rosales, together with at least fifteen other bishops, will preside at a solemn celebration of a “Red Mass” for judges and justices, members of the Bar, law school professors and government officials. The Cardinal has sent out his personal invitation to members of the judiciary, of the executive department, of Congress and to other members of the legal profession and to officials and professors of colleges and universities.

But what is “The Red Mass”? It is the Mass of the Holy Spirit. Following a tradition that dates back to the high Middle Ages, the Mass is called Red from the red liturgical vestments traditionally worn by the celebrants to symbolize the tongues of fire that descended on the Apostles at Pentecost. Historical records indicate that the tradition started principally in England and France.

In England the tradition is said to have commenced during the reign of Edward I, about the year 1310. In essence, the Mass was meant to call upon the Holy Spirit to grant light and inspiration to lawyers in pleading and to judges in adjudicating during the coming term of court. It became the custom for the entire Bench and Bar to attend the Red Mass at the opening of each term of court. The judges, who were all doctors of the law, wore the impressive red robes belonging to that office and attended the Red Mass as a body

The Messe Rouge in France is said to have started ahead of England in 1245. However, in 1906, following the modern tendencies of the French people, Parliament considered the ceremony to be offensive to their conception of liberty of conscience. Thus a resolution was passed prohibiting the celebration of the Messe Rouge. During the first World War a temporary suspension of the prohibition was obtained by the Paris Bar as a gesture of respect for the lawyers who had died in the battle for France and humanity. But the prohibition was revived later and the Messe Rouge in France, it seems, has passed into history.

Today the best known Red Mass is the one celebrated annually at the Cathedral of St. Matthew Apostle in Washington, D.C. on the Sunday before the first Monday of the October term of the U.S. Supreme Court. It is attended by Supreme Court justices, members of Congress, the diplomatic corps, the Cabinet, other government officials and sometimes the by President of the United States. “The Red Mass” was dramatized as episode 69 in the television series The West Wing.

An annual Red Mass is also celebrated today in cities in various countries, among them Canada, United States, Australia, Ireland and Scotland.

Although the Red Mass is an old custom which was started for jurists of a community once a year to gather before the Altar of God to ask for the light and the strength which only God can give them to fulfill their high public responsibility, it is now offered also for the entire members of officialdom.

The Red Mass has recently led to annual Masses for other occupational groups. For instance, in the United States "Blue" Masses are celebrated for police officers and others engaged in public safety, as well as "White" or "Rose" Masses for doctors, nurses, and other health-care professionals.

The Red Mass, or Mass of the Holy Spirit, is a peculiarly Catholic celebration. But it is not just for the benefit of Catholics. It is a way of expressing what is found in the Preamble of our Constitution where the sovereign Filipino people implore “the aid of Almighty God, in order to build a just and humane society, and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.” More contemporaneously for our nation, it expresses the desire that the ambitious goals proclaimed by President Noynoy Aquino in his inaugural speech last week will become a reality for the Filipino people.

Finally, it is the hope of the Cardinal of the Archbishop of Manila that the Red Mass will become an annual practice in Metro Manila and in other parts of the country.

A District Each for Arroyo & Andaya

A District Each for Arroyo & Andaya

In upholding the creation of a representative district for Dato Arroyo and Rolly Andaya, (yes, that is what R.A. 9176 succeeds in doing), the Supreme Court cited the juggling of populations by the Constitutional Commission when it first divided the country into representative districts. Of course, the Constitutional Commission could juggle and put almost anything into the draft they were working on. After all, the Commission’s work still had to be submitted to the people for approval. But not everything that the Constitutional Commission could do may be done by Congress. Congress is bound not by what the Constitutional Commission did but by what the Constitution says.

The Constitution says that there are five standards for the creation of representative districts.

First, representative districts shall be “apportioned among the provinces, cities and the Metropolitan Manila in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio.” This requirement or its equivalent formula is found in the 1935, 1973 and 1987 Constitutions.

Second, each province, irrespective of size, is entitled to at least one representative district. This too is found in all three Constitutions.

Third, a city can constitute a representative district only if it has a population of at least 250,000. This requirement appears only in the 1987 Constitution.

Fourth, each representative district shall comprise, as far as practicable, contiguous and compact territory. This too is in all three Constitutions.

Fifth, the 1935 Constitution says: “The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise.” The 1987 version says: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”

Of these five standards, the first holds preeminent position. It is the equal protection clause of the Bill of Rights made specific for districts. The others are auxiliary requisites intended to assure observance of the first requisite. It is thus most important that the meaning of the first requisite be understood and that Congress observe it. What does it mean?

The phrase “in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio” is borrowed from American constitutional law and jurisprudence. But it has become necessarily ours because of the American provenance of our basic constitutional law and especially because it is rooted in the equal protection clause. As American jurisprudence clearly teaches, “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.” Or again: “We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the [legislative] seats . . . must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”

Dilution is exactly what happened in the Camarines Sur case. Camarines Sur had four representative districts each containing roughly 400,000 inhabitants. Of these the largest was the second district with 474,899, followed by the fourth district with 429,070, and next the first district with 417,304. R.A. 9716 decided to divide the smallest of the three into two districts thereby accommodating Dato Arroyo and Rolando Andaya. As a consequence, the smaller original third district would now be represented by two congressmen whereas the two larger districts would be represented by only one each. 474,899 and 429,070 voters voters can elect only one congressman each whereas 417,304 can elect two! Translate that into pork barrel! What could be more blatantly discriminatory?

The ponencia says that population is not the only thing. Yes, but it is the main thing because sovereignty is in the population. The ponencia did not show nor could it show any other factor to outweigh the sovereignty of population.

The ponenca also makes much of the fact that the text of the Constitution expressly provides a population minimum of 250,000 only for cities. True, but an overriding principle is proportionality and equality of population found in the first standard. For cities, 250,000 is the strict mathematical minimum, as upheld in the recent Malolos case. For others, the standard is not a mathematical minimum but proportionality which honors the equal protection clause. The only units exempted from proportionality are provinces.

What we have here is a Supreme Court approved assault on the equal protection clause. It is an assault which inflicts a deep wound on our democratic system.

Finally, what of the command that Congress make a reapportionment within three years after the return of every census? Its purpose is to periodically readjust proportionality. This purpose, however, is defeated by piecemeal reapportionment such as the recent one of Camarines Sur. Piecemeal reapportionment is a direct assault against equal protection. For this reason, reapportionment should only be done nationwide. Unfortunately piecemeal reapportionment continues to have the blessing of the Supreme Court. A deliberate act of Congress creating disproportion and blessed by the Supreme Court is not only unconstitutional but also disgraceful.

11 April 2010

Reapportionment in Malolos & Elsewhere

Since the 2010 elections are coming, it is understandable that politicians are struggling to position themselves as favorably for themselves as possible. One method being used is the creation of representative districts. I wish that some of the controversial cases on this subject, for instance, those in Malolos and in Camarines Sur, would reach the Supreme Court for final resolution. What are the constitutional principles at stake?

First, a representative district must consist of “contiguous, compact, and adjacent territory.” But this is not an absolute rule because this is required only “as far as practicable.”

Second, when a province is created, a new representative district is automatically created no matter how small the population is.

Third, when a city is created or its population increases, it is entitled to form a representative district provided that the city has a population of at least 250,000. For purposes of determining the population size, the latest official census report is used, even if, as the Court said in 1961, the report is not yet final. This is important for what is happening in Malolos.

More problematic is the question of creation of representative districts independently of the creation of a province or city. This is happening, for instance, in Camarines Sur where a President's son is involved.

What makes this problematic is that the Constitution does not put down a minimum number. But the Constitution imposes a fourth principle based not on numbers but on proportionality. The rule says that legislative districts are "apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of uniform and progressive ratio."

What this fourth principle means is that uniformity should be maintained among the provinces such that a province with a large population should have proportionally more districts than smaller provinces. Corollarily the various districts should be of approximately the same population size so that the vote of every person will be of equal weight. The basis of this rule is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man. In a representative system, this equality is ensured by requiring that the district representatives should represent as nearly as possible an equal number of constituents.

The constitutional provision was used in a 1961.. The Court said that Republic Act 3040 violated the Constitution "because (a) it gave Cebu seven members while Rizal with a larger number of inhabitants got four only; (b) it gave to Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,601) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has three whereas Isabela, Laguna and Cagayan with more inhabitants have two each. And then Capiz, La Union and Ilocos Norte got 2 each whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only whereas Iloilo with less inhabitants (966,145) was given five."

The Court concluded: "For all the foregoing we hereby reiterate our Resolution declaring Republic Act 3040 infringed the provisions of the Constitution and is therefore void."

What should be noticed in all of this is that, in determining the validity of the apportionment, the Supreme Court did not look only at the situation in once province. The approach was comparative. The intent of the Court was to preserve proportionality not just in one province but in the entire country. Republicanism, after all, is for the entire country.

Moreover, if equality of voting power of citizens is to be preserved, the individual districts themselves must be of approximately the same size in population. Thus, it is not enough to look into the size of districts in one province; additionally the districts in one province must also be compared with those of other provinces. For instance, in the case of Camarines Sur, what should be looked into is not just the size of the district purportedly intended for Dato Arroyo but also how it compares with other districts around the country.

This leads to a fifth principle: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.” This is in recognition of the fact that over the years the size of representative districts change because of births and population movements. But this periodic reapportionment commanded by the Constitution must be done nationwide and not piecemeal, as is happening now. Piecemeal reapportionment affecting only one province will necessary result in unconstitutional disproportion with provinces whose districts are not readjusted.

Finally, it should be obvious that the reapportionment done in one province should be the concern of all citizens because equality of representation is the concern of all. What the Court said in 1961 remains true: "Needless to say, equality of representation in the legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the government."

Apportionment

Since the 2010 elections are coming, it is understandable that politicians are struggling to position themselves as favorably for themselves as possible. One method being used is the creation of representative districts. I wish that some of the controversial cases on this subject, for instance, those in Malolos and in Camarines Sur, would reach the Supreme Court for final resolution. What are the constitutional principles at stake?

First, a representative district must consist of “contiguous, compact, and adjacent territory.” But this is not an absolute rule because this is required only “as far as practicable.”

Second, when a province is created, a new representative district is automatically created no matter how small the population is.

Third, when a city is created or its population increases, it is entitled to form a representative district provided that the city has a population of at least 250,000. For purposes of determining the population size, the latest official census report is used, even if, as the Court said in 1961, the report is not yet final. This is important for what is happening in Malolos.

More problematic is the question of creation of representative districts independently of the creation of a province or city. This is happening, for instance, in Camarines Sur where a President's son is involved.

What makes this problematic is that the Constitution does not put down a minimum number. But the Constitution imposes a fourth principle based not on numbers but on proportionality. The rule says that legislative districts are "apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of uniform and progressive ratio."

What this fourth principle means is that uniformity should be maintained among the provinces such that a province with a large population should have proportionally more districts than smaller provinces. Corollarily the various districts should be of approximately the same population size so that the vote of every person will be of equal weight. The basis of this rule is the concept of equality of representation which is a basic principle of republicanism. One man’s vote should carry as much weight as the vote of every other man. In a representative system, this equality is ensured by requiring that the district representatives should represent as nearly as possible an equal number of constituents.

The constitutional provision was used in a 1961.. The Court said that Republic Act 3040 violated the Constitution "because (a) it gave Cebu seven members while Rizal with a larger number of inhabitants got four only; (b) it gave to Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,601) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has three whereas Isabela, Laguna and Cagayan with more inhabitants have two each. And then Capiz, La Union and Ilocos Norte got 2 each whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only whereas Iloilo with less inhabitants (966,145) was given five."

The Court concluded: "For all the foregoing we hereby reiterate our Resolution declaring Republic Act 3040 infringed the provisions of the Constitution and is therefore void."

What should be noticed in all of this is that, in determining the validity of the apportionment, the Supreme Court did not look only at the situation in once province. The approach was comparative. The intent of the Court was to preserve proportionality not just in one province but in the entire country. Republicanism, after all, is for the entire country.

Moreover, if equality of voting power of citizens is to be preserved, the individual districts themselves must be of approximately the same size in population. Thus, it is not enough to look into the size of districts in one province; additionally the districts in one province must also be compared with those of other provinces. For instance, in the case of Camarines Sur, what should be looked into is not just the size of the district purportedly intended for Dato Arroyo but also how it compares with other districts around the country.

This leads to a fifth principle: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.” This is in recognition of the fact that over the years the size of representative districts change because of births and population movements. But this periodic reapportionment commanded by the Constitution must be done nationwide and not piecemeal, as is happening now. Piecemeal reapportionment affecting only one province will necessary result in unconstitutional disproportion with provinces whose districts are not readjusted.

Finally, it should be obvious that the reapportionment done in one province should be the concern of all citizens because equality of representation is the concern of all. What the Court said in 1961 remains true: "Needless to say, equality of representation in the legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the government."