Saturday, January 22, 2011

The Cha-Cha Puzzle & Plea Bargain Puzzle

The opposition to charter change is coming partly from the fear that, given the abundance of competing self-interests among political actors, an open ended cha-cha process might end in the rejection of both good and not so good provisions of the 1987 Constitution. Whether done by Congress in joint or separate sessions or through a constitutional convention, there really is no control on what changes might be proposed, processed and approved. And it is almost a certainty that whatever is proposed by Congress or by a constitutional convention will be approved by the voters, even if eventually they might regret it. Is there a way of controlling somehow the output of a constituent assembly?

There is, of course, amendment through initiative and referendum designed to achieve only minor changes in the Constitution. But aside from the fact that it can be a messy process, as shown by past attempts to use it, there is also the basic obstacle that according the Supreme Court there is as yet no implementing law to activate it. If then the goal is not the expensive process of overhauling the entire 1987 Constitution, is there a process that is more controllable and less expensive?

In the past, I have broached the idea of a “fourth mode” of changing the Constitution. The easily recognizable modes are through a constitutional convention, through Congress, and through a constitutional convention. What I would call the “fourth mode” is a variation of change through Congress. The variation consists of a departure from the ordinary way Congress might be expected to act as a constituent assembly, that is, by coming together as a joint body. In the fourth mode, both houses of Congress will stay where they are, the Senate in Manila and the House in Quezon City, and formulate their proposal as they do statutes but by three fourth votes of the each entire house. Whatever is approved is then sent to the other house for processing.

There are two questions that can be raised about this process. First, is it allowed by the Constitution? Second, will it have a better chance of controlling the outcome of the process than through a joint Congress or through a constitutional convention?

As to the first question, I adhere to the fundamental principle in constitutional interpretation that what is not prohibited by the Constitution, either explicitly or implicitly, is left to the discretion of Congress. There is nothing in the text of the Constitution which says that the fourth mode may not be followed. All the Constitution says is that amendment or revision may be proposed by Congress or a constitutional convention. The Constitution does not say how this is to be done by Congress or by a constitutional convention. Neither is it implicitly prohibited by the Constitution. In fact, acting separately is of the nature of our bicameral Congress.

As to the second question, I must say that there is no assurance that the imagination of the members of Congress will not blossom into a bouquet of proposals of all kinds. Even if the Senate seems to be thinking in terms mainly of economic amendments, there is no assurance of a similar focus in the House. The House might not agree at all on focusing on economic amendments as a priority. I myself would have other priorities. I suspect, however, that following this fourth mode will make the process more controllable in scope. Moreover, it will be less expensive and it will be able to come out with some results ready for presentation to the electorate in the next elections.

Finally, let me add that talk about Congress converting itself into a “constituent assembly” is superfluous. By the fact that the Constitution explicitly mandates Congress to propose amendments, Congress is already a constituent assembly.

The Plea Bargain Puzzle

I must say that I cannot understand why, after pleading to bribery amounting to something like 135 million pesos, the former Military Comptroller was allowed to be released on bail on the ground of weak evidence.

My main question is: Was the 135 million bribery admitted by Garcia the product of a single act? It would be unbelievable for a bribe of 135 million pesos to be the result of a single act. The illegal amount must have been the sum total of a series of briberies.

On that supposition, the crime admitted by Garcia would satisfy the definition of plunder which is the illegal amassing of wealth of at least 50 million pesos through either a combination or series of illegal acts. Where is the lack of evidence if Garcia has admitted guilt? Lack of evidence, perhaps, for a total of 300 million bribery, but there is admitted evidence for 135 million, more than twice the amount needed for plunder

The next question would be whether Garcia has been effectively absolved of the crime of plunder through the Sandiganbayan’s approval of the plea bargain. If he has, can the charge of plunder be revived without violating the rule on double jeopardy? My view would be that, if the terms of the plea bargain are invalidated, then there was no termination of the plunder charge. It can still be pursued even if only on the basis of 135 million.

24 January 2011

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