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

Sunday, January 16, 2011

A New Constitution in 2011

Will we have a new Constitution before 2011 ends?

But before that, let me just again say that I have never claimed that the 1987 Constitution is perfect. It is the Constitution, warts and all, which the Filipino people overwhelmingly ratified after we emerged from the dark era of martial rule. But no matter what the circumstances of its birth are, no Constitution is ever perfect. A Constitution, although more enduring than statutes, is always a work in progress. Even the US Constitution, the oldest in the world, is a work in progress. Ours is, and one of these days, it will have to yield to change. Is 2011 the year?

I don’t think it matters constitutionally that the President does not consider constitutional change a matter of urgency. If you look at the text of the Constitution, you will see that the President is not given a role in the amendatory process. He will have a decisive role only if Congress is willing supinely to follow his dictation. Gloria Macapagal Arroyo was for constitutional change, but her wanting it brought her nowhere. Now she is where the decision to change or not to change matters.

Having said that, let us first look at what has happened to attempts at constitutional change so far. Next month the Constitution will complete its twenty-fourth year. Through all these years it has remained untouched. It has lasted unchanged longer than either the 1935 Constitution or the 1973 Constitution. The 1935 Constitution underwent change almost immediately after its birth, first, by giving suffrage to women, and a little later by moving from a unicameral National Assembly to a bicameral Congress. As to the 1973 Constitution, it was not what the Constitutional Convention of 1971-1972 had intended and, during its brief lifetime, it underwent several major changes.

If the 1987 Constitution has resisted change to this date, it is not because it is a perfect Constitution nor is it for want of attempts to change it. Almost every year attempts at constitutional change have been made. None has succeeded.

In my view, one major obstacle to attempts to revise the 1987 Constitution is structural. It has a built-in unintended obstacle to change. And I do not know how this can be overcome this year.

In many respects the 1987 Constitution consists of significant borrowings from the 1935 Constitution. Unfortunately, however, the provision on the amendatory process is a carbon copy of the provision in the 1973 Constitution. Year after year since 1987 this has been the major obstacle to change. Why so?

The text says: “Any amendment to, or revision of, this Constitution may be proposed by: (1) he Congress, upon a vote of three-fourths of all its Members; or (2) a constitutional convention. . . . The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.”

The provision is one formulated for a unicameral legislative body but it is now meant to work for a bicameral Congress. This was not a tactical product designed by an evil genius. It is merely the result of oversight. But the oversight has spawned major problems.

First, must Senate and House come together in joint session before they can do anything that can lead to charter change? The 1935 Constitution was very clear on this question: Congress could not begin to work on constitutional change unless they first came together in joint session. The 1987 Constitution is non-committal.

Second, since the text of the Constitution is not clear about requiring a joint session, can Congress work on constitutional change analogously to the way it works on ordinary legislation, that is where they are and as they are? I have always maintained that Congress can, but this is by no means a settled matter. There are those who believe that the importance of charter change demands a joint session.

Third, should Congress decide to come together in joint session, must Senate and House vote separately or may they vote jointly? The 1935 Constitution was very clear on the need for separate voting; the present Constitution is silent about this. But I am sure that the Senate will not agree to a joint voting where their number can be buried in an avalanche of House votes, an avalanche of votes which can mean the abolition of the Senate! How will this issue be settled? Howsoever the matter might be settled by agreement of the majority of both houses, someone in the minority will run to the Supreme Court to challenge the decision.

What about a constitutional convention? But the business of calling a constitutional convention is fraught with the same problems. Should Congress choose to call a constitutional convention, must the two houses be in joint session? And if in joint session, should they vote separately?

Briefly, constitutional change in 2011 or later can happen only if the members of Congress can agree to work in harmony and if the Supreme court will not throw a monkey wrench on how Congress decides to do it. Can the members of Congress rise above self-interest and work together harmoniously? Or are we waiting for an extra-constitutional change?

17 January 2011

Saturday, January 8, 2011

The Calls for Review

The calls for review of the Webb case will not die until the Supreme Court has made a definitive decision that the Webb case is a closed case or, alternatively, that the seven justices who voted to reverse the conviction of Webb and company committed a grave abuse of discretion amounting to lack or excess of jurisdiction. In the second alternative the Supreme Court will have to say that what the seven justices did was not an acquittal at all. But what are the chances of either alternative.

From where I sit, the odds would be heavily tilted in favor of dismissal of any appeal or any motion for reconsideration. As one colleague put it, this is Constitutional Law 101. The long standing doctrine is that "No error, however, flagrant, committed by the court against the state, can be reserved by it for decision by the Supreme Court when the defendant has once been placed in jeopardy and discharged even though the discharge was the result of the error committed." A judgment in a criminal case once final cannot be reopened. A judgment of acquittal is immediately final. “A single prosecution for any offense is all the law allows. It protects an accused from harassment, enables him to treat what had transpired as a closed chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is a bar to unnecessary litigation, in itself time consuming and expense-producing for the state as well."

But is there any instance when an acquittal is reversed? Briefly, yes, when the acquittal was no acquittal at all because it was done with abuse of discretion. But the abuse that can justify reversal is not any simple abuse. This type of abuse has been characterized by the Supreme Court as “such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.”

If the Supreme Court is to reverse the acquittal of Webb and company, it will have to say that the seven justices who voted for acquittal had acted in a manner that was capricious and in a whimsical exercise of judgment, had evaded a public duty or refused to perform a duty enjoined by law, and had exercised their power in an arbitrary and despotic manner by reason of passion or hostility. It is only by arriving at this conclusion that the Supreme Court can say that the acquittal was without jurisdiction and therefore not an acquittal at all.

What are the chances of the Supreme Court arriving at such a conclusion? Consider the fact that every decision of the Court is arrived at only after deliberation by a quorum in the Court. A certification to this effect is attached to the record of the case. Moreover, any member who dissents must state for the reason for the dissent. If you examine what those who dissented said, I do not think you will find any dissenting justice saying that acquitting the Webbs would amount to grave abuse of discretion amounting to lack or excess of jurisdiction of the Supreme Court. If such were the case, the justices would be opening themselves to impeachment for culpable violation of the Constitution and betrayal of public trust.

Indeed, there have been acquittals which were found to be grave abuse of discretion amounting to lack of jurisdiction. But these were committed by lower courts. For instance, there was the case of the soldiers accused of the assassination of Benigno Aquino, Jr. After they were acquitted by the Sandiganbayan the case was reopened on the premise that the proceedings in the Sandiganbyan were characterized by grave abuse of discretion.

Incidentally, the argument has been raised that the Webb decision must be reversed because the Supreme Court is without authority to decide issues of fact. In essence, what this argument means is that the Supreme Court had no jurisdiction. Clearly, however, the Constitution gives to the Supreme Court power to review, reverse, modify or affirm final judgment of lower courts. More specifically, the Supreme Court has the power to review “all criminal cases in which the penalty imposed is reclusion perpetua or higher.” Reviewing a criminal case on appeal of a conviction or on certiorari of an acquittal necessarily involves a review not just of the law involved but also of the facts which are the basis of the conviction or acquittal.

Reviewing a criminal law decision always involves examining whether the right to presumption of innocence has been honored. To convict, the court must find proof beyond reasonable doubt. Proof beyond reasonable doubt cannot be determined without reviewing the facts of the case.

10 January 2011

Saturday, January 1, 2011

Epiphany for a Divided World

One of the eternally fascinating elements of the Christmas story is the journey of the Magi. The Philippines celebrated the feast yesterday. It is a straightforward story of wise men crossing the Arabian dessert guided only by a star while in search for an unknown king. The journey is long and, tradition tells us, by camel. I remember when in our childhood, after finding our gifts by the window on Epiphany day, we would scour the grounds for camel hoof prints!

The magi did not know it, but the king they were looking for was threatened by a king who was in paranoiac dread of losing his throne. “Go and search diligently for the child. When you have found him, bring me word, that I too may go and do him homage.” Threading the Jerusalem and Judean minefield, the magi nevertheless outwitted the murderous monarch. It was during biblical times when God communicated with men in dreams to save them.

The simple outline of the story is that Jesus was born in Bethlehem of Judea; that his birth took place in the time of King Herod; that Herod was sneakily na├»ve and had a paranoiac dread of losing his throne because he knew that he was not a legitimate descendant of King David; that the magi found the infant and, in a miracle of faith, adored him and gifted him with gold, frankincense and myrrh; and finally that God stepped into salvation history to rescue magi and Child. “And having been warned in a dream not to return to Herod, they departed for their country by another way.”

We do not know for certain who the magi were and how many. All we know for certain is that the Greek word magus means a person gifted with superior knowledge, an expert in some field, especially astrology. The Magi evidently were not Jewish Tradition has developed to say that there were three of them, and that their names were – Melchior, representing black skinned people; Balthazar, representing us Asians, and Gaspar, representing the Europeans and the light skinned race.

The principal characteristic of the feast as told by Scripture is brilliance. We see this in the reading from Isaiah: “light has come . . . the glory of the Lord shines upon you . . . shining brilliantly.” And since not everyone then awaited the epiphany of God, Scripture tells us that “when King Herod heard [about the Magi] he was greatly troubled, and all Jerusalem with him.”

And what is the relevance of the feast for us today? The story comes to us again in today’s world where there is so much racial, ethnic, religious and class intolerance in so many parts of the word including our own. We have unresolved political conflicts. There is the MILF war on one front and the NPA skirmishes on another. Even as the oppositionists throw bricks and stones at the Palace, the President himself is at war even with the Supreme Court.

The feast of the Epiphany reminds us that God has come to us all and for us all. We tend to forget this as soon as the holiday firecrackers are quieted and the revelry has ended. But we have all been called out of the darkness of our sinfulness into the light of God’s love and care. In this sense we are all equal. Today, therefore, we do not surrender to despair but we continue to pray that all men and women will be united as God’s children living in peace and harmony.

“At various times in the past and in various different ways, God spoke to our ancestors through the prophets; but in our own time, the last days, he has spoken to us through his Son, the Son that he has appointed to inherit everything and through whom he made everything there is.”

3 January 2011