THE SUBSTATE DREAM

Once again the nation takes up what is commonly referred to as the Mindanao Problem. The government is approaching it with benefit of hindsight.
Almost three years ago the Supreme Court, in what I consider an advisory opinion, came out with counsel on what to avoid in any peace agreement about Mindanao. Although the vote against the agreement was 8 to 7, it actually contained more agreement than what the vote indicated. Aside from the ninety-page main opinion, there were eleven other pieces some concurring and others dissenting. Going through them one will find that there really was more unanimity than what the 8-7 count might indicate. A clear majority agreed that there were provisions in the MOA-AD which, if carried out without constitutional amendment, would depart from the present Constitution. The most notable of these were the powers envisioned for the Bangsamoro Juridical Entity (BJE). The powers envisioned went beyond those possessed by local governments and even by the Autonomous Region. The MOA-AD spoke of the relationship between the BJE and the Philippine government as “associative” thus implying an international relationship and therefore suggesting an autonomous state. Clearly these went beyond what the present Constitution has set up. Like other peace negotiators, the MOA-AD authors were willing to try untested approaches and to operate “out of the box.”
Thus it was that eight justices of the Court felt impelled to send a stern directive to an executive department which they could not trust. The Court, however, did not say that the President should not think “out of the box.” After all, the President’s oath binds the President not just to “preserve and defend” the Constitution but also to “do justice to every man.”
What the President did when he met with Chairman Murad in Tokyo was to start a new process of doing justice to every man and, if necessary, to “think out of the box.”
It is now becoming clear, however, that what is envisioned by Chairman Murad and the MILF is something which will not fit into the structure of the present Constitution. It will need constitutional amendment. What will the Palace agree to since constitutional amendment is not one of its priorities?
I am convinced, however, that the priorities of the President are not cast in bronze. From what I have seen of the efforts to achieve permanent peace in the region I have become convinced that lasting peace cannot be achieved without some significant changes in the structure of government in Mindanao. Put simply, there is need for some constitutional change. Can this be achieved without a complete overhaul of the current Constitution?
Theoretically this can be achieved. But the fear is very real that the initiation of any form of amendment will open up the floodgates for a total overhaul of the Constitution. But if the powers that be will support it, a “surgical” form of amendment can be achieved. This is possible because of the way the current provision on constitutional change is worded.
The Constitution now 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.” Under these terms, neither a constitutional convention nor a joint session is needed. The two Houses have the option either of coming together in joint session or of deliberating separately as they are where they are as they do with ordinary legislation. Whether to act as two separate bodies or as one body that votes separately, is for Congress to decide. It is a “political question” beyond the jurisdiction of courts. Thus either House can initiate a constitutional amendment bill or a constitutional revision bill, debate on it, and approve it by a vote of three-fourths of all the members and thereafter pass it on to the other house for similar deliberation and action. If approved by both houses, it can go to a plebiscite for ratification or rejection by the electorate.
Under such an arrangement the proposed change can be as broad or as narrow as the legislators might want. The fact that no one has tried this method for the purpose of radically overhauling the Constitution is perhaps an indication that neither the Senate nor the House of Representatives is prepared to overhaul the current Constitution.
Neither, however, has the surgical method been tested. In my view, the search for a solution of the Mindanao problem can be approached through this “surgical” method. More specifically the goal can be either a reformulation of what can be given to the Autonomous Region or the formation of a federated state for Mindanao. I believe that a limited constitutional change can be proposed by Congress under the present constitutional provision.
Under this separate arrangement, the needed changes for Mindanao can be initiated either in the House of Representatives or in the Senate. Once a proposal is approved in one house by a vote of three fourths of all its members, it can be sent to the other house for its consideration and disposition. If one house refuses to cooperate, that will be the end of the proposal. Or, if the version approved by one house is different from that of the other, then, as in ordinary legislation, a bicameral committee can be formed to resolve differences. Once a common provision is achieved, it can go back to both houses for ratification by a vote of three fourths of all the members. If all goes well, then the provision will be ready for submission to a plebiscite.
29 August 2011

ART & THE RIGHT NOT TO SPEAKK

Art, or what different people call art, is or can be a form of expression. Like any expression it is protected by the freedom of speech clause of the Constitution. There are only two forms of expression that are not protected by the Constitution: libel and obscenity. Sacrilegious expression which is not libelous nor obscene is protected.
Art can be libelous if it projects something that is untrue about another in a manner that does harm to a person or to his reputation by tending to bring the object of the art into ridicule, hatred or contempt by others. Libel is presumed to be malicious and can be the basis of award for damages.
Art can also be obscene. But what is obscenity? The basic guidelines for a court trying to determine whether a particular work is obscene are: "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value." These are guidelines which Philippine jurisprudence has accepted.
But stricter guidelines are also accepted in situations where material is forced on minors who are not looking for it, as for instance in television shows during hours when minors can be presumed to be still watching. Our Court has called it “relative obscenity.”
I understand that a court case, (whether criminal or civil, I do not know), has been filed against the officers of the Cultural Center of the Philippines and against the artist authors of the exhibit. Those suing will be hard put to prove obscenity or libel on the basis of the accepted standards for these offenses. Whose honor or reputation are being maliciously damaged? What patently offensive sexual conduct is being depicted? The suit might also be for “immoral doctrines and exhibitions” under Article 201 of the Penal Code. We will all be watching how far such a suit can prosper. Since art, even ugly art, is a form of expression, it can be made punishable only when it presents a clear and present danger of an evil which the state has the right to prevent.
I come now to the other aspect of freedom of expression, namely the freedom not to speak. Since the CCP has withdrawn the exhibit, this means that the CCP has decided to discontinue its sponsorship of the exhibit. In other words, the CCP has decided to exercise its right not to speak. But it is not thereby saying that the objects may not be exhibited elsewhere. (By discontinuing the exhibit, however, was there a violation of contract? That is another question.)
But, as is well known, the CCP was created through Executive Order No. 30 for the purpose of promoting and preserving Filipino arts and culture. As its website says, it has sought “to truly embody its logo of katotohanan (truth), kagandahan (beauty) and kabutihan (goodness).”
The question I would ask is whether the CCP, a government agency, may be compelled to show whatever artists feel should be shown? Put differently, is the CCP free to choose what it wants to show without violating freedom of expression?
While what is expressly guaranteed by the Constitution is the freedom of speech or expression, the guarantee does not exclude the freedom not to speak. The freedom not to speak is pure common sense that it is perhaps for this reason that there is no constitutional provision specifically guaranteeing it.
From where I sit, I see the problem confronting the CCP as analogous to the problem of local governments in deciding whether to allow a monument in a public park. The government has the right to choose what permanent monuments it may sponsor in government parks. Although a public park is a traditional public forum, the display of a permanent monument in a public park is a form of “government speech.” No one can dictate to government what speech it should make or sponsor. As one decision puts it: “Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”
Accordingly, cities take some care in accepting donated monuments. They may not be compelled to accept everything offered. The monuments that are accepted have the effect of conveying a government message, and thus constitute government speech.
I look at exhibits in the CCP in an analogous way. The CCP is a government institution missioned to display what it considers to be katotohanan (truth), kagandahan (beauty) and kabutihan (goodness) and not what others consider to be such. Artists whose work the CCP does not accept are free to exhibit their work elsewhere. The issue is not freedom of speech but freedom not to speak.
22 August 2011

CCP WOES & SUBSTATE DREAM

THE CCP WOES & THE SUBSTATE DREAM
Joaquin G. Bernas, S.J.
Not that the two topics are inextricably linked. Nor are they the topics being discussed by the same group of people. But they are both worth our attention.
The CCP Woes. I begin with the woes bought upon the administrators of the Cultural Center of the Philippines. As is well known, the CCP was created through Executive Order No. 30 for the purpose of promoting and preserving Filipino arts and culture. As its website says, it has sought “to truly embody its logo of katotohanan (truth), kagandahan (beauty) and kabutihan (goodness).”
Art, or what different people call art, is or can be a form of expression. Like any expression it is protected by the freedom of speech clause of the Constitution. There are only two forms of expression that are not protected by the Constitution: libel and obscenity. Sacrilegious expression which is not libelous nor obscene is protected.
The question I would ask is whether the CCP may be compelled to show whatever artists feel should be shown? Put differently, is the CCP free to choose what it wants to show without violating freedom of expression?
What is expressly guaranteed by the Constitution is the freedom of speech or expression. It includes the freedom to choose what to speak or express. But it does not exclude the freedom not to speak. The freedom not to speak is pure common sense that it is perhaps for this reason that constitutional provision specifically guaranteeing it.
From where I sit, I see the problem confronting the CCP as analogous to the problem of local governments in deciding whether to allow a monument in a public park. The government has the right to choose what permanent monuments it may sponsor in government parks. Although a public park is a traditional public forum, the display of a permanent monument in a public park is a form of “government speech.” As one decision puts it: “Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.”
Accordingly, cities take some care in accepting donated monuments. They may not be compelled to accept everything offered. The monuments that are accepted have the effect of conveying a government message, and thus constitute government speech.
I look at exhibits in the CCP in an analogous way. The CCP is a government institution missioned to display what it considers to be katotohanan (truth), kagandahan (beauty) and kabutihan (goodness) and not what others consider to be such. Artists whose the CCP does not accept are free to exhibit their work elsewhere. The issue is not freedom of speech but freedom not to speak.
The Sub-state Dream. Once again the nation takes up what is commonly referred to as the Mindanao Problem. The government is approaching it with benefit of hindsight.
Almost three years ago the Supreme Court, in what I consider an advisory opinion, came out with counsel on what to avoid in any peace agreement about Mindanao. Although the vote against the agreement was 8 to 7, it actually contained more unanimity than what the vote indicated. Aside from the ninety-page main opinion, there are eleven other pieces some concurring and others dissenting. Going through them one will find that there really is more unanimity than what the 8-7 count might indicate. A clear majority agreed that there were provisions in the MOA-AD which, if carried out without constitutional amendment, would depart from the present Constitution. The most notable of these were the powers envisioned for the Bangsamoro Juridical Entity (BJE). The powers envisioned went beyond those possessed by local governments and even by the Autonomous Region. The MOA-AD spoke of the relationship between the BJE and the Philippine government as “associative” thus implying an international relationship and therefore suggesting an autonomous state. Clearly these went beyond what the present Constitution has set up. Like other peace negotiators, the MOA-AD authors were willing to try untested approaches and to operate “out of the box.”
Thus it was that eight justices of the Court felt impelled to send a stern directive to an executive department which they could not trust. The Court, however, did not say that the President should not think “out of the box.” After all, the President’s oath binds the President not just to “preserve and defend” the Constitution but also to “do justice to every man.”
What the President did when he met with Chairman Murad in Tokyo was to start a new process of doing justice to every man and, if necessary, to “think out of the box.”
It is now becoming clear, however, that what is envisioned by Chairman Murad is something which will not fit into the structure of the present Constitution. It will need constitutional amendment. What will the Palace agree to since constitutional amendment is not one of its priorities?
15 August 2011

QUESTIONS FROM A RESIGNATION

We all know now that, for the first time in Philippine history, a senator, Miguel Zubiri, resigned from the Senate. It is now only a matter of time before Koko Pimentel assumes the vacated seat.
There are questions about the timing and the motives, but I will not get into those. Nor will I speculate about guilt or innocence. While he himself has admitted that he was a beneficiary of electoral fraud, I am willing to assume that he himself had no part in the cheating. Moreover, I doubt that anybody will bring to court a charge of abandonment of office under Article 238 of the Revised Penal Code. But there are some interesting constitutional questions which may have to be answered in some future time.
The simplest of these is the matter of oath taking. Before whom should the Pimentel take his oath? As far as I can tell, neither the Constitution nor the Election Code nor the Administrative Code specifies who should administer the oath. He can take the oath before anybody who is authorized by law to administer oaths. If a president-elect can choose before whom he can take his oath, there is no reason why a senator-elect should not have the same choice.
There are, however, some interesting constitutional questions about reelection. The Constitution says: “The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.”
The six-year term follows the model of the Senate under the 1935 Constitution. The innovation introduced by the 1987 Constitution is the constraint that no Senator shall serve for "more than two consecutive terms." This limitation was the second of four possible options. The interruption between terms to allow a third election need not be six years. Since senatorial elections are held every three years, the interruption can be three years.
How does the provision apply to Zubiri? Certainly he can run for election in the 2013 elections. Should he win in 2013 and finish the term, can he run in the elections immediately following? It would seem that he cannot because the Constitution says “Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected.” But should the Senate Electoral Tribunal declare that it was Pimentel who was elected, did Zubiri renounce “the office for which he was elected?”
One might say that Zubiri did not renounce anything in 2011 because he had nothing to renounce and therefore it would be as if he was senator only for one term – 2013 to 2019. How logical is that? I can only recall an analogous case involving a local mayor. After a mayor had served his third term, his election to that term was declared void. The ex-mayor therefore claimed that he was entitled to another term. The Court held that the decision declaring his third election invalid was of no consequence because he had in fact already served the term. I suggest that a similar logic would apply to Zubiri. It should be remembered that the limitation on terms has been introduced in order to prevent a person from staying too long in power. The purpose, whether one considers it wise or not, should not be frustrated by mere technicalities.
Next comes the question for Pimentel. He will soon assume the office vacated by Zubiri. Certainly Pimentel can run again in 2013. Should he win, however, and serve until 2019, can he run again on that election year? Can he argue that he can because he served less than two years of his first term?
It is interesting to compare the limitation on terms for the Senate and for elective local government officials. Local elective officials may not run for three consecutive “full terms.” Thus, if during a local official’s third term he is ousted for not having been validly elected, he is deemed not to have served three “full terms” and thus can run immediately thereafter. For Senators, however, as also for Representatives, a “full term” is not specified. Thus, my view is that, unfortunately for Pimentel, although his “tenure” will be far short of six years, he will be credited for having won a full six year term. Whereas “tenure” can be shortened, a “term” is indivisible, unless the law makes it divisible, as in the case of local elective officials.
Finally, I must add that all these questions are coming up while talk of constitutional amendment or of “surgical” constitutional change is being revived. The questions on reelection arising from Zubiri’s resignation might get a definitive answer or clarification should constitutional amendment finally take place.
8 August 2011