A LECTURE ON CHARTER CHANGE April 26, 2006 DILG PROVINCIAL OFFICE Tagum City

A LECTURE ON A LECTURE ON CHARTER CHANGECHARTER CHANGE

April 26, 2006April 26, 2006

DILG PROVINCIAL OFFICEDILG PROVINCIAL OFFICETagum CityTagum City

PERSPECTIVES: PERSPECTIVES:

1.1. Political institutions are critical in Political institutions are critical in strengthening governmental effectiveness.strengthening governmental effectiveness.

2.2. Rebuilding the economy can proceed Rebuilding the economy can proceed without reforming the government without reforming the government structures.structures.

Crux of the Proposal: Whether or not change in Crux of the Proposal: Whether or not change in government structure has relationshipgovernment structure has relationship with with good governancegood governance. .

Amendment versus RevisionAmendment versus Revision

1. Amendment – envisages an alteration of 1. Amendment – envisages an alteration of one or few specific and isolated one or few specific and isolated provisions of the Constitution.provisions of the Constitution.

2. Revision – over-all recasting or re-2. Revision – over-all recasting or re-examination of the entire document.examination of the entire document.

MODES OF AMENDING THE CONSTITUTION MODES OF AMENDING THE CONSTITUTION

1. Constitutional Assembly (Con-Ass). Upon 1. Constitutional Assembly (Con-Ass). Upon three-fourths (3/4) vote of ALL the members.three-fourths (3/4) vote of ALL the members.

2. Constitutional Convention (Con-Con). 2. Constitutional Convention (Con-Con).

2.1. Call for Con-Con . (Two-thirds vote)2.1. Call for Con-Con . (Two-thirds vote)

2.2. Submit to electorate. (Majority vote) 2.2. Submit to electorate. (Majority vote)

3. People’s Initiative3. People’s Initiative

ModeS of Revising the ConstitutionModeS of Revising the Constitution

1. Constitutional Assembly (Con-Ass). Upon 1. Constitutional Assembly (Con-Ass). Upon three-fourths (3/4) vote of ALL the three-fourths (3/4) vote of ALL the members.members.

2. Constitutional Convention (Con-Con). 2. Constitutional Convention (Con-Con). 2.1. Call for Con-Con . (Two-thirds vote)2.1. Call for Con-Con . (Two-thirds vote)2.2. Submit to electorate. (Majority vote) 2.2. Submit to electorate. (Majority vote)

*Constituent power – power to formulate a *Constituent power – power to formulate a Constitution or to propose amendments to Constitution or to propose amendments to or revision of the Constitution and to ratify or revision of the Constitution and to ratify such proposal. such proposal.

Parameters of People’s Initiative

1. Used only for proposal to AMEND the 1. Used only for proposal to AMEND the Constitution. Not applicable to proposal Constitution. Not applicable to proposal to REVISE the Constitution.to REVISE the Constitution.

2. Compliance of signature requirements.2. Compliance of signature requirements.

2. 1. 12% of the total registered voters2. 1. 12% of the total registered voters

2.2 3% of the total registered voters 2.2 3% of the total registered voters per district. per district.

3. Requirement of enabling law.3. Requirement of enabling law.

Required steps to effect change by amendment or by revision:

1. There must be proposal of amendments 1. There must be proposal of amendments or revision;or revision;

2. Gathering of the required signatures and 2. Gathering of the required signatures and verified by the Comelecverified by the Comelec

3. Filing of Petition before Comelec with 3. Filing of Petition before Comelec with attached signaturesattached signatures

4. Plebiscite4. Plebiscite

Current Peoples Initiative ProposalsCurrent Peoples Initiative Proposals

11. Amendment of Articles VI and VII of the . Amendment of Articles VI and VII of the Constitution. Constitution. 1.1. Article VI. Legislative Department1.1. Article VI. Legislative Department1.2. Article VII. Executive Department 1.2. Article VII. Executive Department

(Presidential-Bicam to Unicameral – (Presidential-Bicam to Unicameral – Parliamentary)Parliamentary)

2. Providing Article XVIII Transitory Provisions 2. Providing Article XVIII Transitory Provisions for the Orderly shift for the Orderly shift

Are the proposals considered amendments or revision?

1. Check the definition of amendment and 1. Check the definition of amendment and revisionrevision

2. Bernas criteria: “ It’s not the quantum of 2. Bernas criteria: “ It’s not the quantum of change in the document but the change in the document but the qualitative alteration that effects qualitative alteration that effects revision.”revision.”

UNDERSTANDING THE DIFFERENCES UNDERSTANDING THE DIFFERENCES

PRESIDENTIAL PRESIDENTIAL

1. Separation of 1. Separation of powers powers between between executive and executive and legislative. legislative.

PARLIAMENTARYPARLIAMENTARY

1. fusion of 1. fusion of executive and executive and legislative legislative powers. PM powers. PM elected among elected among the MP the MP



2. President is the 2. President is the Head of the Head of the State and Head State and Head of the of the Government. Government.


2. President is the 2. President is the Head of State Head of State and the Prime and the Prime Minister is Head Minister is Head of the of the Government . Government .

UNDERSTANDING THE DIFFERENCESUNDERSTANDING THE DIFFERENCES

PRESIDENTIAL

3. Judical Independence Maintained

4. President directly elected by the people. Responsible to the electorate.

PARLIAMENTARY

3. Judicial Independence maintained.

4. PM elected by majority of all the members of the Parliament. PM responsible to the Parliament.



5. Term of the 5. Term of the President is 6 President is 6 years. No years. No reelection. reelection. Removed by Removed by impeachment impeachment


5. Term of the 5. Term of the Members of Members of Parliament is 5 Parliament is 5 years without years without limit. Removed by limit. Removed by vote of ‘no vote of ‘no confidence” by the confidence” by the Parliament. Parliament.



6. President is 6. President is one-person one-person executive. He executive. He appoints his appoints his cabinet subject cabinet subject to CA to CA


6. Primus inter 6. Primus inter pares. PM pares. PM appoints cabinet appoints cabinet members drawn members drawn from elected from elected members of the members of the Parliament. Parliament.


PRESIDENTIALPRESIDENTIAL

7. No focus of 7. No focus of power because power because powers are powers are clearly clearly delineated by delineated by law. law.


7. Focus of the 7. Focus of the power is on the power is on the parliament. parliament.



8. Susceptible to 8. Susceptible to gridlock and gridlock and impasse impasse


8. Ability to muster 8. Ability to muster a majority in the a majority in the parliament. parliament.



9. Personality-9. Personality-based system. based system. Parties merely Parties merely secondary. secondary.


9. Focus on 9. Focus on programs of the programs of the parties. parties.

PROVISIONS OF 1987 CONSTITUTION

Article I – National TerritoryArticle II – Declaration of Principles and State PoliciesArticle III – Bill of RightsArticle IV – CitizenshipArticle V – SuffrageArticle VI - LegislativeArticle VII - ExecutiveArticle VIII – Judicial DepartmentArticle IX – Constitutional Commissions

PROVISIONS OF 1987 CONSTITUTION

Article IX – Constitutional Commissions Article X – Local GovernmentArticle XI – Accountability of Public OfficersArticle XII – National Economy and PatrimonyArticle XIII – Social Justice and Human RightsArticle XIV – Education, Science and Technology, Arts, Culture and SportsArticle XV – The FamilyArticle XVI – General ProvisionsArticle XVII – Amendments or Revisions

Article VI – Legislativ

e Department

Article VII –

Executive Departm

ent

Article XVIII

– Transitory

Provisions

SHARE OF THE PROPOSED AMENDMENTS IN THE WHOLE PIE

Better Features of ParliamentaryBetter Features of Parliamentary Form of Government Form of Government

1.1. Better ability to prevent gridlock and Better ability to prevent gridlock and promote a cooperative relationship promote a cooperative relationship between the executive and between the executive and legislative. legislative.

2.2. Greater capacity to ensure stability Greater capacity to ensure stability and continuity in governanceand continuity in governance

3.3. Greater capacity to ensure Greater capacity to ensure accountability in governanceaccountability in governance

Better Features of ParliamentaryBetter Features of Parliamentary Form of Government Form of Government

4.Capacity to promote Cohesive and 4.Capacity to promote Cohesive and Disciplined Parties. Disciplined Parties.

Strength and viability of parliamentary regime Strength and viability of parliamentary regime rests on mature and disciplined parties.rests on mature and disciplined parties.

5. Capacity to promote a Multi-party 5. Capacity to promote a Multi-party system.system.

LEGAL MATTERSLEGAL MATTERS

Santiago vs. Comelec Ruling:Santiago vs. Comelec Ruling:

""People's Initiative and Referendum ActPeople's Initiative and Referendum Act“ RA “ RA 6735), is “incomplete, inadequate, or 6735), is “incomplete, inadequate, or wanting in essential terms and conditions wanting in essential terms and conditions insofar as initiative on amendments to the insofar as initiative on amendments to the Constitution is concerned.”Constitution is concerned.”

8 justices dismissed the petition; 2 dissenting opinions; 8 justices dismissed the petition; 2 dissenting opinions; one separate opinion one separate opinion

On Comelec Action to Verify the On Comelec Action to Verify the SignaturesSignatures

Santiago vs. Comelec Ruling:Santiago vs. Comelec Ruling:

The actions of COMELEC is in compliance with the Court Ruling. The Court said:

“xxx only participation of the COMELEC or its personnel before the filing of such petition are

(1) to prescribe the form of the petition

(2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district

On Comelec Action to Verify the On Comelec Action to Verify the SignaturesSignatures

Santiago vs. Comelec Ruling:

(3) to assist, through its election (3) to assist, through its election registrars, in the establishment of registrars, in the establishment of signature stations and signature stations and

(4) to verify, through its election (4) to verify, through its election registrars, the signatures on the basis registrars, the signatures on the basis of the registry list of voters, voters’ of the registry list of voters, voters’ affidavits, and voters’ identification affidavits, and voters’ identification cards used in the immediately cards used in the immediately preceding election.preceding election.

What did the Comelec do?What did the Comelec do?

Comelec Central Office issued Memo directing Comelec Central Office issued Memo directing Regional and Provincial Offices to verify all signatures Regional and Provincial Offices to verify all signatures gathered. gathered.

Comelec was subject to pressure by both sides. Sigaw Comelec was subject to pressure by both sides. Sigaw ng Bayan Spokesperson Atty. Lambino threatened ng Bayan Spokesperson Atty. Lambino threatened them for non-feasance for dereliction of duty should them for non-feasance for dereliction of duty should they refuse to verify.they refuse to verify.

Opposition on other hand threatened them for Opposition on other hand threatened them for Contempt should they verify the signatures citing Contempt should they verify the signatures citing Santiago Ruling. Santiago Ruling.

When true legal battle ensues: When true legal battle ensues: When petition is filed before the COMELECWhen petition is filed before the COMELEC

Santiago vs. Comelec Ruling:

“XXX COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

So what is the implication of Santiago So what is the implication of Santiago Ruling: Ruling:

It is a judicial precedence which may become the basis of the Supreme Court in its future decisions. But the Court has been clear in several cases that settled rulings may be changed in view of changing atmosphere or demand of times.


The Supreme Court in several cases has said:

Precedents are helpful in deciding cases … they can lead us in the right decision as we tread the highways of the law in the search of truth and justice…they are the voice of wise judges talking to the future.


The Supreme Court in several cases has said:

EXCEPT WHEN THERE IS A NEED TO REVERSE THEM BECAUSE OF EMERGENT VIEWPOINT OR AN ALTERED SITUATION, they urge as strongly as trodded path is best. “

In other cases, the court has said:In other cases, the court has said:

“ The decisions of the court are not petrified rules to rule rigid once pronounced but vital growing things subject to change as life is also subject to change. While trodded past is best, this should not prevent us from opening fresh trail or exploring the side or destine a new idea in this field or continuing inquiry.”

What can we get from all those rulings:What can we get from all those rulings:

Rule of Rule of stare decisisstare decisis applies. Following applies. Following judicial precedents would result to stability in judicial precedents would result to stability in judicial ruling. judicial ruling.

But when there is an emergent viewpoint or an But when there is an emergent viewpoint or an altered situation or changing times demand altered situation or changing times demand new view, SC will not be slave to its past new view, SC will not be slave to its past rulings but will explore new trail or idea in rulings but will explore new trail or idea in this field of continuing inquiry. this field of continuing inquiry.

THANK YOUTHANK YOU

Documents

A LECTURE ON CHARTER CHANGE April 26, 2006 DILG PROVINCIAL OFFICE Tagum City