Passion For Reason

Cha-cha: The scheming behind the frenzy

By Raul Pangalangan
Philippine Daily Inquirer
First Posted 02:15:00 04/24/2009
Its amazing how much guile, how much scheming, how much artifice it is taking to foist
constitutional change upon a weary people. Why are the politicians so excited, so driven, over
Charter change (Cha-cha)? Certainly these operators and horse-traders cant be up to anything
good. So what mischief lies beneath the sanctimonious drivel?
At first they said they wanted to lift term limitsand enable the President to remain in power.
Then it was to change the form of government, from presidential to parliamentaryand still
prolong the incumbent in power. Now it is merely to discard the protectionist clauses that deter
the entry of foreign investors that can jumpstart our lethargic economyjust that, they assure us,
no stealthy riders like lifting term limits.
Indeed, as of Wednesday night, HR 1109 was filed: it focused on the economic clauses,
expressly disavowed any hidden agenda on term limits, and made it clear that the amendment
process had to be clarified. Its sponsor, Camarines Sur Rep. Luis Villafuerte, president of Ms
Arroyos Kabalikat ng Malayang Pilipino (Kampi) party, says that this time he wants merely to
trigger a Supreme Court ruling on the mode of changing the Charter. In other words, its not
about the substance of the amendments, but merely the process of amendingwhether it can be
carried out solely by the House of Representatives (which is allied with the President) and
without the vote of the Senate (which is not). So the latest proposal is a mere decoy, after all, so
why fret?
We must recall the lessons of history. We faced such a judicial decoy once before. The late
professor Perfecto Fernandez theorized that the legal basis for proclaiming martial law in
September 1972 does not lie in the landmark decisions validating the Marcos Constitution.
Rather, the key maneuver was the Supreme Court decision in Lansang v. Garcia following the
suspension of the writ of habeas corpus in August 1971 after the bombing of the Liberal Party
rally at Plaza Miranda.
Marcos had argued that his commander-in-chief powers were not reviewable by the courts. The
Court rebuffed himand the opposition rejoiced! Foolishly, it now seems, because what Marcos
got was even more lethal. He got judicial confirmation that a communist threat existed and,
worse, the Court adopted a low threshold of review, a perfect set-up to transform it into the
Supreme Apologist for martial law.
As a student, I found Fernandezs theory fascinating, if too conspiratorial for my taste. That is,
until I read a book by William Rempel, entitled Delusions of a Dictator. The Marcos diaries
recorded how closely he monitored the Courts deliberations through a mole among the justices,
how he wanted a unanimous vote so desperately that he partially restored the writ just in time for
the Courts en banc deliberationsand how, upon learning of the verdict, his diary entry
exclaimed, I am ecstatic!
So has this happened with Charter change? Almost, I must say, with the peoples initiative. In
1997, the group named Peoples Initiative for Reform, Modernization and Action (PIRMA)
pushed for a peoples initiative, but it was stopped by the Supreme Court which found defective
the law that implemented the initiative clause in the Constitution. Significantly in 2006, the
Court stopped an initiative attempt by another group, Sigaw ng Bayan, because the signatories to
the initiative hadnt even read what amendments they were proposing. But along the way, the SC
actually reversed PIRMA and said that the implementing law was valid and sufficient after all.
This has now opened the floodgates to another contrived peoples initiative in the future.
Apparently, the political winds today require a different tack. The plotters have thus chosen to
railroad the process through Congress. At first, Speaker Prospero Nograles sponsored Resolution
737 proposing to change the economic clauses with Congress and the Senate deliberating and
voting separately. He was opposed by Villafuerte who insisted on a constituent assembly where
the House and the Senate will vote together so that the Senate votes are numerically drowned out.
With the Nograles formula in HR 737, after the House votes separately, there will be an official
record that the magic 197 votes have been cast, but someone must petition the courts to declare
that that the two-thirds of all its Members has thus been met. Apparently this option was
discarded last night because until the courts reinterpret the vote after the fact, HR 737, left on its
own, merely confirms that a separate vote by Congress is required.
The beauty of the Villafuerte formula is that it carries no such risk. It consistently, from
beginning to end, affirms that the two-thirds of all its Members requirement means simply
thataggregate the votes of all congressmen and senators, one person, one vote. HR 1109 makes
that the default position, which stands unless reversed by the Supreme Court. It shifts the
presumptions, both legal and strategic.
But so what if the Villafuerte formula prevailsanyway the May 2010 elections are just around
the corner? Even if we were to believe them, what we should worry about is not that Charter
change is possible after 2010. It is that Charter change would be so easily engineered with the
congressmen alone. In effect we have shifted the locus of power into one House of one branch of
government apparently most vulnerable to the importunings of power. Suddenly it shouldnt
matter who the next president is, since the congressmen can any time amend him out of the
Constitution. Whoever inherits Arroyos crown will know who holds the power to remove the
crown from his head.