House Resolution 1109 is wily and devious. One, it doesn?t propose actual changes in the Constitution. It merely talks about the ?modes? of proposing such changes. HR 1109 repeatedly says: ?No such amendment or revision can be considered, heard, debated, approved or disapproved, unless any of the modes [for amendment or revision] is adopted.? ?Adopting a mode for ? is a condition precedent ? before specific proposals [can] be considered.? ?[N]o specific proposals ? could formally be given due course unless and until this call to convene ? is effected.?
By that clever maneuver, however, HR 1109 lowers the threshold vote required (to a mere simple majority, much lower than the three-fourths vote required to actually propose constitutional changes) and at the same time avoids any charge that the loyal congressmen are already proposing amendments or revisions. It makes a show of meticulous fealty to the text of the Constitution.
Two, it doesn?t lock out the prospect of extending Gloria Macapagal-Arroyo in power. Sure it alludes to ?specific proposals? regarding the protectionist clauses of the Constitution, provided the ?mode? issue is settled. ?There is a specific proposal that for the Philippines to be internationally competitive in attracting foreign investments ? that the economic provisions ? be amended ? but such specific proposal ? cannot be formally presented ? until the mode for amending or revising the Constitution is ? made operational ??
This reference to the economic clauses is a fig-leaf, at best a legitimating cover, at worst, a teaser for a business sector tired of the worn economic orthodoxies calcified into the 1987 Charter. Yet HR 1109 conveniently leaves the door open to other changes in the Constitution.
Three, the signatories to HR 1109 assure us that they foreswear term extensions for anyone, but the devil lies in loopholes. The language might be assuring. ?It is hereby pledged and covenanted by the proponents of this Resolution, that (1) The term of office of the incumbent President and VP shall not be extended; (2) The term of office of Senators, Congressmen, Governors, Mayors, and other elected officials whose term of office shall expire in 2010 shall not be extended; (3) The term of office of the twelve (12) Senators [whose terms are] ending in 2013 shall not be shortened and they shall be allowed to finish their term; and (4) That there shall be elections in 2010.?
But given Malacañang?s penchant for the disingenuous, I am not assured. The incumbent President and her minions need not be extended in the same office. The same cabal can remain in power through entirely new offices (e.g., a prime minister presiding over members of Parliament) elected just the same in 2010. The text of the covenant is kept and honored, and only its spirit is desecrated?but in these benighted islands, who cares?
Fourth, so what does HR 1109 achieve? What is its value-added legality for Arroyo?s ambitions? The key is in the sixth and seventh preambular (a.k.a. ?Whereas?) clauses where the House of Representatives officially declares its position that the 1987 Charter has revised the 1935 formula??the intentions? [?are clear and manifest?] by deletions of certain words and phrases [in] the 1987 Constitution??that the three-fourths vote requirement now means ?three-fourths of the ?members of Congress? without distinction as to which institution of Congress they belong to.? In other words, the senators? and congressmen?s votes are counted together?and the potential Senate veto is diluted when co-mingled with the House votes.
Finally, HR 1109 even pays homage to the rule of law by submitting to the Supreme Court?s review powers. Constitutional changes shall be proposed ?preferably after ? construction and interpretation by the Supreme Court of the justiciable controversy that may arise.? And when is this magic moment? HR 1109 provides the answer: ?a justiciable controversy ? shall ripen for judicial determination ? when this Resolution [1109] is filed, heard, and approved.? That moment transpired on Tuesday midnight, and a justiciable controversy has arisen. Or has it, indeed?
The first scenario is that the Supreme Court agrees with the House, and the House forthwith convenes itself to propose the amendments, meets the three-fourths vote, and then we have a plebiscite.
The second scenario is that the Supreme Court declines jurisdiction on the ground that the case is premature, ?not ripe? for adjudication. May the legislature tell the courts when a case has ?ripened? and become an ?actual controversy?? I have encountered cases of legislatively-created ?standing??when Congress creates a right and then defines who might be eligible to invoke that right. Courts normally make that call on their own. But this is the first time I find legislatively created ?ripeness,? of a court being told when a dispute has become ripe for adjudication. The House then proceeds to convene to propose the amendments, and a plebiscite ensues.
Either way, it?s ?Back to the Future? for those old enough to remember the Marcos Constitution and its bogus ratification. Except that this time, Arroyo might actually produce the needed votes.
It is the supreme irony of Edsa 2 that the anti-Arroyo forces?anti-dictatorship and anti-corruption, as well?stand in mortal fear that democracy will actually take its course. Just imagine. What do we dread most now? That our duly elected representatives in Congress will propose Charter amendments, and that the sovereign people will approve it under the watch of a constitutionally created Comelec? Tsk, tsk. And Ninoy said the Filipino is worth dying for.
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