SPEAKER 1

Change is constant and pervasive and it is the discussion of a possible change in our
constitution that has brought us all together today. Let us hear from the 17th Dean of the
Up College of Law, Dean Darlene Marie b berberabe who's going to give the opening
message for this forum.

SPEAKER 3
Good morning everyone and welcome to this forum room on constitutional change
means matter and motives. Thank you for for thank you IPD for organizing this forum.
We are in the middle of discussions from different sectors of our country. Let me give a
a bit of context. So our 1987 constitution was drafted a year after the people power
uprising and it has provisions that impose term limits, banned foreign military bases,
strengthened the bill of rights and restricted foreign ownership of land and domestic
industries.

So now we are in the midst of talks and plans to amend certain economic provisions of
the 1987 constitution with our precedent announcing a preference to hold a plebiscite
during the 2025 midterm local election. So almost all administrations have attempted to
change the 1987 Constitution in 1997 through the People's Initiative for Reform,
modernization and Action. Perma President Ramo sought a parliamentary system of
government and the amendment of Article seven, section four, which states that the
president is not eligible for reelection people's initiative was submitted to the Supreme
Court.

The next attempt was under President Estrada who was critical of the “chacha” under
his predecessor. But during his administration he formed the constitutional correction for
development “Concord”, which pushed for the lifting of restrictions on the foreign
ownership of business. Some said that the movement then was towards a constituent
assembly or CON-AS under President Macapagal Arroyo. There were several attempts
to make changes in the Constitution.

A people's initiative called Sigaw ng Bayan conducted a signature campaign to push for
changes in the Constitution. There were also moves for Congress to convene into a
constituent assembly and in 2 0 0 9 lawmakers also called for a constitutional
convention. Then under President Duterte, the attempt for charter change sought to
revise the entire 1987 constitution to make way for federalism. Congress then looked to
convene as a con as which would need a vote of three fourths of all members.
All attempts have been met with intense public criticism or rejection by the Supreme
Court or lack of support from the Senate.
All have thus far failed. The current administration has said that it is pushing for
changes in the economic provisions to boost our economy. There have been
pronouncements that the changes are confined to economic provisions. However,
there's also talk of possibly touching on the political provisions and which brings a lot of
anxiety and concern. Today we shall listen to the speakers who will discuss the three
aspects of charter change that have significantly weighed in all the previous attempts,
means matter and motives.

The means to change the Constitution. Is it through constituent assembly con

constitutional convention or people's initiative, the matter of constitutional change. What
provisions should be changed and is the time ripe for such change and the motives of
pushing for constitutional change? When our leaders say the changes have to be made
for greater foreign investment to boost our economy, the public wants to know if there
are other underlying motives.

It is our hope that by talking about this topic, we can better understand so that we can
think on our own, contribute to the discourse, make a stand in our groups or
communities or continue to think critically. We are honored to listen to our highly
esteemed speakers and panelists and we, we are grateful for your time and expertise
For the participants, we are the people, the sovereign people who ordained and
promulgated the constitution.

It is our duty to understand, to be involved in our own way and be responsible in

charting what should be done with our constitution ing sala and welcome.

SPEAKER 1
We are grateful for that extensive backgrounder and situation on the 1987 Constitution,
Dean Ber. And now to talk about the state of state of the law on constitutional change is
attorney Michael T. Tiu Jr. He is assistant professor of the up college of law and teaches
constitutional law among other subjects. He's also the head of the information and
publication division of the Up Law Center.

SPEAKER 4
<inaudible>. I'll stay here so that you see that I have limbs. Okay, so constitutional
change. Now talk about the basics. This is really just a quick refresher for those of us
who already know the rules here and for those of you who are new to this, just a quick
background on the issues to situate the issues that we will be talking about is
specifically our speakers on the nuances of the efforts of constitutional change in the
past and the current one that we are perceiving. Alright, so let's, let's look at the some of
the basics.
Dean Berbarabe had already mentioned that our constitution speaks of three modes of
changing the constitution. The first two could be used to revise or amend the
constitution. That's constituent assembly and constitutional convention. While the third
one initiative our constitution is explicit is can be used only for amendments.
So we'll see the next slide that in, in Maag for example, Maag versus Lopez veto
reminds us or reminded us that a lot of the the things that go on in a constituent
assembly and a constitutional convention is political. It is a political process. The
decisions that they make are made by agents in the political departments. And so for a
long time that has been the doctrine and that that hasn't been touched by the courts.
But in Gonzales for example, and more specifically in our 1987 constitution, there is no
escaping judicial review anymore for most of the issues.

There will still be political questions involved here and you very well know there will be
political questions in political decision making. But we have our constitution that tells us
that if there is grave abuse of discretion on any branch or instrumentality of government
and that includes the assembly or the convention, then that is reviewable by the court
under this expanded power. And, but this is not the first time, as I said that we
encounter this limitation, right?

We have Gonzalez that tells us that as the assembly, a constituent assembly for
example, derives its authority from the constitution and therefore the constitution will
necessarily limit such authority. We are also reminded by Francisco that if you have
constitutionally imposed limits, then that can be the basis of judicial review. Or in other
words, the question would be just about, so para question constituent assembly or
convention.

Okay? So we see then that there are certain limits, there is a framework, whichever way
you go in terms of the mode, right? So in the next slide, just to reiterate that constitution
speaks of a convention and a constituent assembly referring to an amendment or
revision. And this begs the question then what is the difference between an amendment
and a revision? So next slide, right?

So here, and I want to be very careful here because the Ponente is a speaker today.
Lumino is instructive on the difference between revision and amendment. So revision as
you can see, is more encompassing. It goes to the very heart of the, of the exercise and
of the document. And therefore as defined in La Bino, it refers to changes regarding
basic principles, controlling principles in our constitution, in in some cases it alters the
substantial entirety of the Constitution.
And there are tests that we will refer to later and as opposed to amendment that may
involve only one provision or a minimal number of provision. And the function really is
just reduce, delete or add, but it doesn't alter the basic structure of our state and our of
our government. So that's what Lumino tells us, no. So to be more concrete, are there
tools that help us in making this distinction? The next slide will tell us that there are, and
the Lumino case refers to California examples in California and other states in the
United States to make sense of what these tests, how these tests could be useful in our
jurisdiction.

So we have the quantitative tests as you remember, if there's it's substantial entirety,
right? So that could mean most or almost all of the provisions that are not benign, that
are not, that are significant in our constitution.

So it's a matter of counting basically how many provisions are being changed in the
quantitative test. But that doesn't mean that there is no other way, right? We also have
the qualitative test which doesn't look to the number of the provisions that are being
amended but looks to the nature of the amendment or the nature of the change so that
it amounts to revision and it goes into what the revision or what the change will
accomplish. So this can mean even if it's just a single provision in the constitution, for
example, a declaration that we are a Republican state, right?

And to change that to say we would now be a theocracy would certainly be a shift in our
political system. And so you also look at the nature what it does, the basic structure of
government or the basic nature of our state. So we have these two tests in LA to guide
us and this is something that you can use, right?

Because we have an abundance of, well for the most part discussions have been
confined to economic provisions of the constitution that are proposed to be amended.
But I think more recently you've heard and seen in the news that amendments with
respect to lifting of term limits have also been discussed. So, and that could mean just
two or three provisions, right? But does the lifting of term limits only mean that it's an
amendment or does it substantially change the nature of our system?

Alright, so we have these two tests and then the next slide just to elaborate on the
modes, we have a constituent assembly. And let's take a look at very quickly what has
been said about these modes. Constituent assembly, of course the constitution tells us
that it can happen. You can propose amendments via constituent assembly if you obtain
three, four votes of all the members of Congress Ong a 1970 case tells us that the
assembly has full and constituent or plenary power in proposing these amendments.
And I want to take particular note of a statement here where three fourths vote of each
house, this was in a different constitution, right, in joint session, but voting separately,
these issues I will leave to the next speaker, but just put a red flag on these potential
questions that might come before our courts regarding these efforts. Okay? And of
course common to all the modes is a ple. So as Dean Berbarabe said, the ratification of
the constitution, this is our constitution that we are ordain and promulgate and therefore
the end of the process will always have to be listening to the people and what their vote
is on this particular proposal.

Gonzalez, an earlier case also tells us that the members of Congress derive their
authority from the constitu as we said earlier. So constitution necessarily would limit
what they can do and therefore this will be, you will have to test what they do and the
next speaker will also talk about this, whether what they're doing in that assembly would
be consistent with our constitutional provisions and doctrine.

Alright, next please. So for constitutional convention, the number is different. It's two
third of all the votes of the votes of all the members of Congress to call a convention. So
not quite the passing yet of an amendment right? It's the calling of the convention that
requires a two thirds vote. If you do want to submit that question to the public, then it's
just a majority vote. So that's what the constitution tells us.

Okay? But so then we, we asked, so this is a forum on means and matters. So what can
be decided, right? What can be subject of that call and what can the convention do? So
that call of Congress may include setting out the details of how the convention will
function. So Imbong for example, tells us that in order for the convention to be fully able
to exercise its assigned powers, congress should be able to set out as well by the
doctrine of necessary imp necessary implication that who can sit in that convention, who
are qualified to be elected in that convention, et cetera.

So in that similar case, the, there was a question about whether all those other details
are able to be passed or set out in subsequent legislation, legislation subsequent to the
resolution. And the court in that case said that that can happen under the legislative
power of Congress. So I forgot to mention that in the constituent assembly based on the
gonzalez's cases doctrine, the, the members of the assembly are not sitting there as
legislators, right?

So they're delegates under the constitution of the people to exercise the assembly
powers. Alright, so let's move on to the next slide. Okay, so this is a statement in
planners about what can happen in that convention. So again, the question that might
be in your mind is, okay, we have resolutions that say that only economic provisions
would be discussed or could be proposed in such a convention, but is that really
limited?

By any rule, could you have parliamentary rules altered so that any question on any
provision of the constitution might be open for proposal in such a, an assembly or a
convention? We have some statements that may help us arrive at the conclusion, but
that's for today's, we can discuss that today, right? But for example, the planner's case
tells us that the convention is free to postulate any amendment in that body, whether
that's regardless of what the resolution say, say is a is a question, right?
And we have here the limitation international law for example, use go against norms
would be a limitation in what can be proposed. This is reminiscent of what you
encountered, for example in the Republic versus Sandiganbayan case where where if
there is a lacuna or if there is a gap then international law because we are at the re
state, okay?

So, but again it's still subject to limitations imposed by the constitution. The Tolentino
case though tells us that there are no limits to the number of provisions which may be
proposed. Another question that comes up here is whether all these statements,
because they occurred at a particular point in time of our constitutional history and in a
context our dicta, right? This is something that the court might have to clarify in a later
case, but just to say what the court had already said about this, that there is, there are
no limits to the number of provisions, but the limitation in Tolentino at least is that you
only submit these questions or the question of ratification to the people in one ple.
So you cannot do it in a piecemeal basis. But there are, there is one case though where
the convention and constituent assembly concurred at a given point in time.

So that case the court allowed the passing of amendments by the assembly acting as
an assembly while also allowing the calling of a convention to propose further
amendments to the constitution. Alright, next slide. Okay, so the third mode is the one
that's also been in the news for quite some time now is the mode of people's initiative or
initiative. So as, as we see here, the initiative only refers to amendments and Lambino
also emphasizes this and we have certain requirements.

So this is meant to fully enable our democratic nature and you know, a direct versus
representative democracy, this is a form of direct democracy on the part of the people.
So we have a 12% requirement of all registered voters who sign on to the petition and
to the proposed amendment nationally. But of course that also is further limited by a 3%
requirement per legislative district.
And there is a time limitation as well. It is important to note that these provisions provide
a framework, but all the details will have to be set out per the Constitution by the
Congress exercising its lawmaking power. Alright, so just to summarize all those, the
next slide will reflect the requirements, okay, then we'll go to the next slide. Okay, so
what about initiative, right? So La Bino is instructive that for the people to be able to
exercise this power, you know, I mean agreeing to something and I think it's fairly
common in all areas of law.
Before you are able to agree on something, you must be informed of what you are
agreeing to, right? Especially if the framework is that you are the proponent of that
particular change. And so Lumino tells us that the draft should be shown to the people
before they sign.

This means the full text of the proposed amendments, not just a question on whether
they agree and a signature sheet for the people to sign onto, which is what happened in
that case. And Gambino further tells us that the petition, this must be embodied in a
petition. And the people, because they're author and signatories to the proposal as we
said, must be able to check and see, examine the full text of the provisions. But
Santiago, a 1997 case tells us that the implementing law, so as we remember, if we
remember the constitution tells us that Congress will implement that, right?

So the implementing law, which is RA 67 35 is inadequate for a number of reasons,

most of which is that this law does not really provide for the process. The law really
focuses on national initiatives or initiatives on national law and local legislation so matter
as important as implementing constitutional people's initiative must be treated with more
care and deliberateness in our A six in the law that is like our A 67 35, which it does not
do.

So that's where we're at. In fact, there have been bills to amend or replace this law, but
we still have even so, right? Even if we ha we are at this state, the kale still perhaps out
of prudence provided certain rules. So, and and it's important to look at them because
this rules, these rules rather might be engaged despite this question, this lingering
question on whether the law there is an an adequate enabling law. And to also remind
us, LA Bino did not revisit Santiago.

So it's still a good law. Okay, so just very quickly, what does the KALAC procedure tell
us? You commence an initiative if you're a registered voter, a group of voters, and you
file a petition before the ek, right? So you secure a certification from the KA as to the
total number of registered voters so you, so that you can accurately compute the 12% in
3% requirements and then you file that petition and pay certain fees. Next slide.
Next slide please. Okay, so then the COMELEC will evaluate it. And this is mostly an
evaluation of the formal requisites. This is not yet about the substance of the petition. In
any case, the substance will be evaluated by the people, right? So if all that passes
through the, the bank of the commission on election convention or the assembly had
proposed and passed, and if we do that by a majority vote, then it passes as an
amendment of the constitution. If not, okay, next please. Just as a final point, what does
the Plebiscite really require?

Of course, as in any other requirement, you need to have sufficient time for the people
to be able to digest what they're agreeing to, especially for something as fundamental
as the change in the constitution. So it cannot be, well it can be rushed politically, but
the constitution requires that we have to have some lead time for the people to be able
to appreciate the extent of what they're agreeing to, to, and the nature of what they're
agreeing to. So that's it. I'll leave all the tricky questions to the next speaker. Thank you
very much.

SPEAKER 1
Thank you Prof Mike for summarizing for us the modes of changing our constitution. So
cons, constituent assembly, constitutional convention and people's initiative. Next, let's
hear from Professor Paolo Emmanuel S. Tamase. He's assistant professor of the up
college of law. He also teaches constitutional law subjects and he's going to talk about
issues in constitutional change.

SPEAKER 6
Thank you. So like my students, good morning to everyone, you can just show the slide
presentation please. So the topic I've been assigned to discuss in the next 15 or
hopefully 15 minutes is really issues in constitutional change. So these are open
questions existing in, despite all of the rules that might correctly enumerated. These are
questions that are still pending out there.

Next slide please. So I'll begin with a very controversial introduction on the constitution
and interpretation. We'll talk about three issues concerning whether Congress should
vote separately, whether Congress should meet separately and whether there are such
things as unconstitutional changes or what we know as the basic structure doctrine. And
then the last is another controversial conclusion regarding doubt and the legitimacy of
constitutional change. Next slide please.

So the big premise of this presentation is concerns this statement that the court often
says frequent says frequently.
And that is when the text of the constitution is clear and unambiguous, it requires no
interpretation. The idea that the only apply rules of constitutional construction when the
text of the Constitution is unclear. Now respectfully, there are two problems with the
statement. So the first is what is clear and unambiguous? The nature of language is that
it is subject to various interpretations. And because law is couched in legal language, it
tends to be open texture and therefore a word might mean very simply to person A, but
it may mean very differently to person B and so on.

So is language ever really clear and and ambiguous and except in probably a very small
set of cases. And then the second problem is the Constitution is known as the people's
document. Unlike typical legislation that is passed by Congress, even though lawyers
composed majority of the commission that or significant number of the commission that
drafted it and it was drafted with the assistance of lawyers, ultimately the decision to
pass the constitution was the people's decision.

So in theory, every person, whether he or she, they underwent education, formal

education who participated in the referendum and to continue to give consent to the
Constitution, have their own interpretation or have their own way of understanding what
that document is. And that matters because usually the rule that when the text is clear
and ambiguous, it requires no interpretation, it's derived from statutory construction.
So these are rules that apply that lawyers have come up, that judges have created in
order to decide questions about interpretation of statutes which are by themselves legal
technical documents very different from what the Constitution is, which is supposed to
be understood and for the lack of a better term, embraceable by anyone, whether a
lawyer or not. And so the counter proposal that I have is every application of the
constitution is in fact an interpretation of the Constitution. And that matters because in
the next slide you'll see that there are, there is a question of who actually engages in
constitutional interpretation.

If you follow Philip Bobbit, and I think half of the people here have taken a course under
me in the last three years, the interpretation of the constitution is done either by the
official class or the non-official class. So the official class all branches with the courts as
the final say. Even people in the executive in the legislative department interpret the
constitution whenever they perform an official act because the first thing that they check
when they implement the law implicitly is, is this law constitutional?
So in contrast to an unofficial interpretation by academics, the people, the thing that
makes the official class a binding act is the fact that it is done by people with binding
political power on everyone and therefore they are subject to rules that concern
interpretation according to law, which in turn emerges from the fact that the constitution
is the people's device for subjecting both the government and the people themselves
under the law.

So it is a limit on the sovereign powers for our students. We've discussed ex extensively
how the constitution is a limitation on government power. We don't talk often enough
about how it is also a limitation on our power, right? I, the typical example that I give is if
all of us decide that we don't like the president now we cannot just come to the polls and
decide to vote him out because the constitution itself overrules that popular
determination by placing a six year limit on the presidency.

Now we can remove him by force, which would be a revolution, but that would be extra
constitutional. So outside of the constitutional framework. So the methods of changing
the constitution, which is an exercise of constituent power that Mike talks about, talked
about earlier, is itself subject to limits. And if you can just go quickly through the next
slide and if you want to take a photo, it's also okay, there are various ways, according to
Philip Bobbit of how we understand constitutional interpretation or how judges and the
courts and the official class engages in constitutional interpretation.

We look at often the history and we see this in the Philippine articulation by the
Supreme Court through things like the intent of the framers, right? To clarify, of course
we understand the intent to be the intent of the ratifiers because the framers did not
write the Constitution, the people did. And so the intent of the framers is simply a
substitute for what the people would've probably thought at the time of the enactment or
the passage of the constitution. We looked at the text. So if history looks at the meaning
of the text at the time in 1987, the text textual modality looks at the interpretation of the
constitution today to the present average contemporary Filipino. And then the structure
in first relationships between the structures created by the constitutional text. So the
court has for example, looked at the concept of structure when it decides or when it
rules, for example, that the government cannot do a certain act because of the
separation of powers.

The term separation of powers does not appear in the constitutional text and yet no one
will doubt that it's part of the constitution because it's what the structure creates. That
the fact that branches of government are given specific responsibilities and that they are
insulated from interference to a certain degree is an inference or creates an inference
that this constitution does intend separation of powers. The fourth modality would be
doctrine, which looks at rules from precedent of judicial and other branches.

And this is important because we often equate constitutional interpretation to stare

decisis, but the court itself looks at the practice of the political branches whenever it
decides, for example, that the Bacca conference committee is constitutional, even
though that thing does not appear in the text because the court considers the, both the
pragmatic angle but also the fact that Congress has always sorted to some form of
bacca conference committee.

There is a more controversial aspect from Bob's theory, the concept of an ethos or the
interpretation of the constitution from inferences, from constitutional superstructure and
the powers retained by the people in in themselves. But I would and I have suggested in
other fora that this would also be present in the Constitution because of Eges Asima,
the interpretation that the spirit of the law or the spirit of the, the reason for the law is its
spirit as well as democratic or accountability canons.

So the court has often ruled, for example, there is a recent case regarding the Barangay
elections and its perpetual postponement. The court there does not rely on the text of
the Constitution in order to say that that practice is unconstitutional. The indefinite
postponement or the repeated postponement, it relies on the fact that it circumvents the
people's democratic determination of who their Bal leader should be.

And that is an ethical reading of the Constitution. It relies on the power, the reserved
powers of the people. And finally, prudence, which is costs and benefits as also known
as some form of pragmatism. And it's often interpreted by a constitutional avoidance. So
even for the Philippines, there is no initially no hierarchy among these modes. And the
main difference between statutory construction and constitutional construction is the fact
that there is no hierarchy among them. Except that. Except that when an interpretation,
whether an interpretation is legitimate or not relies on the modality that we use, right?
Not, sorry, relies not on the modality that we use, but whether the interpretation is
consistent with a good faith application of the modality and therefore for example, a
structural interpretation that goes against the clear text, a clear text right, suffers some
form of illegitimacy, not because the use of structure is, is, is illegitimate, but the way
that it interacts with other ways by which we understand the constitution produces that
form of inconsistency.

So that long interest side, the next slide will show why there are issues with regard to
the meeting and voting. So in the 1935 constitution and Mike started to talk about this,
the provision was clear there was a textual requirement that Congress should meet in
joint session assembled. There was also a textual requirement that the mem that the
Senate and the House voted separately. Now if you look at Article 17 of the present
constitution, those two limits disappear, right?
And there are theories about why they disappeared, which are themselves the source of
conflicting interpretations on whether or not Congress should meet, vote, should meet
jointly or separately rather, or, and thereafter vote jointly and separately. Next slide
please.
So let's look at the first issue more closely on the issue of separate voting, right? The
current 19th Congress take note is composed of 316 house representatives and 24
senators. These are the seats, these are not the people who are actually there because
of certain changes in composition because of the Article 17, right? And the way that it is
written now, specifically sections one and section three, historical and textual or
contemporary meanings of the word Congress are not very helpful because either side
can actually use the term Congress to argue for their position.
And you can see that in the two views that are written here. So the first view is that the
chamber's vote jointly and the, that is the current interpretation of the, that not the
current, but the interpretation of people who have been pushing for charter change for
some time that the house does not need or the house can actually pass the
constitutional amendments or the proposals for amendment on their own because
Congress is the house plus the Senate.

And there is some textural basis for this in Article six, section one. But the other view
which is that chambers vote separately also has that same textual basis that Congress
is bicameral by definition and view one will dilute the Senate. This is, and that is why we
had that long intro, a structural reading of the Constitution, the fact that Congress is
bimal, there is also a drafting error thesis. And Baras mentions this and I think Stu, our
students would know that when the 1986 commission initially drafted the current
constitution, the vision was for a Unicameral Congress similar to 1973.

Late in the drafting process there was a change in the decision of the commission and
they proposed a bicameral Congress instead. But because of the way that styling goes,
right, while they were adjusting other provisions to reflect a beam Congress, there were
some provisions that seemed to have been left out.

So according to Father Berna who was one of the framers of the constitution, this is one
of those provisions that there was no translation. Which if you go back to the previous
slide, there was previous slide and then the other previous slide, thank you. If you look
at the left of your screen, that contemplated a bicameral congress because in 1935,
even though the Congress was initially unicameral, there was an amendment that made
it by came in the 1940s, right?

Revision rather. So next slide please. And then the other previous slide, the other
reason why the constitution or people believe that the chambers should vote separately
is that the Constitution is designed to be fixed and rigid. So if you allow a house to pass
constitutional amendment or proposals for amendments via, without taking the Senate
into consideration, you're making it easier to change the Constitution.

And that this is not consistent with how an ethical reading of the Constitution would
would be, which is the people crafted this document and therefore any changes as a, as
a common vision and mission and therefore any changes to it would require something
more than what you would require for ordinary legislation. Because imagine if you can
pass a constitutional amendment with just one house, then it makes it easier to actually
pass it compared to normal legislation, right? So that creates an ethical problem as well
as a structural problem.

So the prevailing view I think in the academia, I can say with some confidence is that we
generally believe that chambers should vote separately because of all of these reasons.
So next slide please. But the second question is more controversial. So should
Congress meet separately as well? That is what the House and the Senate are doing
now the house is taking up RBH number six, the Senate is taking up R BH number
seven and textually Article 17 does not actually even mention a meeting, right?
Or an assembly. But the reason why even Congress thinks that it should meet, that it
should conduct hearings, that there should be some procedure before a resolution is
passed by Congress or by the House, is that Congress acts as a deliberative body as a
rule. They are there to debate policy, right? And both view one and two on this screen
would deflect that understanding. So let's go to the first view. One view is that chambers
must meet separately and this is the view of the House of Representatives and the
Senate today.

They have been meeting separately on RBH number six in the house R BH number
seven, number six in the Senate RBH number seven in the house there is a textual
silence of a joint meeting. And this is something that Father Beas also writes, that the
text seems to have opened the possibility that Congress can pass a proposed
amendment without meeting as a joint Congress where you have ba basically the
Senators and the members of the House of Representatives meeting in one hall and
debating there.

So it seems to have been opened according to Father Berna. There are also difference
between differences between the 1987 and the 1935 provisions, which is another way
of statutory construction. The the, the CAAs Esso are rule, which is basically if you
change there's a deliberate change between certain legislation and a past legislation,
then that change must be presumed to be deliberate. Now the joint meetings in the
Constitution are also exceptional.
There is only one textual reason to meet jointly. And that is to review the president's
declaration of martial law and the suspension of the rate of pri privilege with rate of p
corpus. Now there is another from a doctrinal precedent reading reason why Congress
meets jointly. And that is during the opening of the session when it the president
addresses them, but there's also no textual requirement for that. So that's one view. The
second view is that the chambers meet jointly.
So the concept of a constituent assembly in 1987 would support this, it seems like
because of the history of the way that Congress as a body proposes amendments to the
Constitution, right? The members of the commission understood that Congress would
meet specially as and jointly for this purpose. So you have references to Congress
constituting itself as a constituent assembly for these major questions. 'cause what the
House and the Senate are doing now is basically just as they would pass ordinary
legislation, but the framers seem to have contemplated a special meeting or a special
gathering or a special act that would result in a proposed amendment.
There is also the 1935 constitutional practice. So the 1935, unlike the 1973 constitution
at the Bicameral Congress, and as we've discussed before, the Congress did meet
specially and jointly. So they assembled jointly in order to propose changes to the
Constitution even though they voted separately.
And so there was also the drafting error thesis, which we talked about. And this is from
an ethical reading of the Constitution, a more deliberative route. So the idea is that
because the house is often the seat or the place where changes to the Constitution are
proposed wide wildly compared to the Senate, which is a little more measured in in, in
reviewing these proposals. So the idea is a deliberative body should be able to
accommodate views from both sides. And it seems to be a more ethical reading of the
Constitution by requiring a joint meeting.
So next slide please. So if you look at this punnet square, the current position of the
house of the 19th Congress is that they would meet separately and vote separately.
That is what they, they're doing now. But if you look at press releases of the people
mainly in charge with pushing charter change to the House of Representatives, they
have not closed the door to the possibility that they will go with charter change anyway if
it stalls in the Senate.
'cause it is taking the Senate a little more time. And I will go into that later. The view of
justice Vivi Mendoza, which he explained in the house hearings for charter change, is
that Congress should meet jointly but vote separately. It is a view that respects the bica
nature of Congress, but also the fact that the Constitution was designed to be difficult to
change. And so that's I think also the view that I would personally share for the, the nun
is a mistake.
The Senate currently actually goes with the idea that it would meet separately, but
would vote that it would meet separately but also vote separately, sorry. So it would've
been a mistake, but these are the various iterations of the meeting and voting
separately and jointly issue. The last issue just very quickly on the next slide is the issue
of can an amendment or a vision of the Constitution be substantively unconstitutional?
So not just a matter of procedure. Now we have seen the court in the 1987 Constitution
declare certain efforts to change to the Constitution as unconstitutional because of
some failure to follow procedure. But it has always stopped short of going into the
question of can you actually propose an amendment that would be that, that that would
be declared as unconstitutional? And you can see why it would raise a lot of eyebrows,
right? If the amendments are also popularly ratified, can it ever be declared as
unconstitutional by the court?
Would that be democratically legitimate? But consider this example or this issue. So,
and I, Mike and I didn't talk about before the presentation, he actually discusses this
also. So the Philippines is a Democratic and Republican state sovereignty sites and the
people and all government authority emanates from them a seemingly harmless
provision of the 1987 constitution.
But will a hypothetical change like a monarchy or a nore election still be consistent with
a Democratic and Republican state, right? If people amend the Constitution to provide
for a monarchy, and Mike's example was a theocracy or if the people, if if it's, if there's a
amendment that would prevent regular elections from happening, no, no elections only
at the call of Congress, would that still be consistent with the Democratic and
Republican state? And if so, would it simply be a revision?
Obviously it is a qualitatively significant change or would it be a replacement of the
Constitution? Is this not the 1987 constitution anymore? So if you look at the 1935
Constitution, it was amended several times despite the amendments. We've always
looked at it as the 1935 constitution. So the regime changed only in martial law in 1973
when I think we all understood as the court has understood that a revolution of some
sort has taken place, an anti-democratic one, but certainly a change in the way that we
look at our government.
So what is the limiting principle? Therefore, next slide please. So Professor Bo Johan
and I just co-wrote a chapter that was, that will be published this year, which basically I
think suggests that La Bino, which Mike also discussed, open the door to this in the
way. And I hope that I also do not misuse justice at C'S words because the people may
approve quantitatively and qualitatively significant changes to the basic law. There are
situations where there are some changes that are more important than others.
And I think our position is the position of many other scholars in other jurisdictions that
some changes to the Constitution are so radical that they change the entire way we
view at our government. So if you look at the 1935 and the 1986 examples, or 1973
examples, when Aviana decided not to review the 19, the, the, the unconstitutional way
that the 1935 constitution was being amended by a citizens' assemblies and not via
voting, the court recognized that that constitution had lost its effect for, for better or for
worse, right?
But it's done. That 1935 era is done in the same way in 1986 when in lawyers league,
that very short decision when the courts see, saw that, that the, there was already a
change in power and that it was not Valentino succeeded Marcos, but a Aquino and a
revolutionary government, but also recognizes that something changed in the 1973
constitution and that is already done. Next slide please. So the doctrine of cons,
unconstitutional constitutional amendment is that it it, it answers the basic question of is
the constitutional amendment power sufficiently powerful as to permit any amendment
whatsoever, thus potentially granting constitutional status to a provision that violates
fundamental rights and principles?
So a comparative experience would be Columbia, no, very quickly, Columbia have
always, has always had four single four year terms under its 1990s constitution. When
Uribe won that term and he decided to run again, he had to request for Congress to
pass a constitutional amendment, which was passed and ratified by the people.
But when he asked for Congress to extend it to allow him to run for a third time, the
court stepped in and said that the irregularities in the procedure were to the effect that
the amendments would violate principles of transparency and democratic governance.
So you can read that in two ways. I'm reading the English translation and not the
Spanish original. So there may be translation issues, but you can read it as the court
imposing procedure in proper, a proper procedure to change the Constitution.
Or you can look at it as their court looking at it from a view larger viewpoint. If you can
have a president that keeps asking Congress to extend his or her term, would that not
change the way that they look at their government or the basic structure of their
government already? So there is scholarly support and criticism for this.
The support is essentially Y's work. The criticism is that can the court declare something
that the people themselves have said should be part of the basic law? And it traces a
very open, important open question that I am not, and I think a lot of people are not
prepared to resolve. So the ethical reading, however, is that if changes inconsistent with
the basic structure are upheld as they were in 1973 and 1986, the 1987 constitution
ends not by law, but by political fact and reality.
Sorry, next slide. So almost done. So just to conclude on another controversial point, I
think it's important to ask, is it wrong to contemplate a change in the constitution?
A few months ago we hosted Justice Mendoza in this very venue where I think this was
also the question that he was grappling with. And it, it's not a divine revelation, but it's a
human endeavor. There are mistakes and interviews with the famers would say that
they found, for example, that the political dynasty provision is a mistake, right? By not
providing for an outright ban, it's not also a matter of faith, but of choice. We, we
continue to have a constitution because we choose to do so.
So there are 2D legitimizing polls. We either debate the constitution disingenuously, for
instance here aims in using underhanded tactics, right? Making it look like a people's
initiative was popularly grassroots supported when it was actually supported by a
smaller set of people. Then the other delegitimizing poll is to silence all debate on
whether we should change the Constitution.
And I think the middle ground is the proper middle ground that informed discussions.
But yes, the legitimacy of the constitutions. So as a closing example in the Senate
hearings on the how on the RBH number seven, I think, sorry, there was a, they, they
were discussing the proposed change to lift the nationality requirements for schools.
And I think the hearing began with members of the Senate very convinced that it should
be changed. But later on when they were hearing from the testimony of the heads of the
universities, the heads of colleges, they realized that the problem with the education
sector is that there were no is not that there were no foreign investors, but the problem
was that it was so, it was subject to such a backward regulation.
And, and so that could be solved by legislation and not by constitutional change. That
realization would not have happened if we wanted to shut down the discussion in Rrb H
number seven, right?
Of course, the problem is that sometimes because of the political realities of our political
process, then a lot of these frank discussions can be overtaken by ulterior motives. And
I think I want to end just with the next slide, which is Justice Mendoza in this hall saying
that taking the Constitution seriously and changing it without changing its essential
nature is what the Arthur v Society is about. And I think it's an invitation to remain open
to constitutional discourse because for better or for worse, I mean whether we like it or
not, it'll ultimately strengthen the Constitution that we have as our common vision and
mission.

Thank you

SPEAKER 1
Maraming Salamat Professor Paolo for letting us know about those three issues
pertaining to changing the constitution. So are the two houses supposed to meet
separately? Are they supposed to vote separately? And what about substantive,
unconstitutional changes? And now let us listen to the legal requirements and
challenges with respect to changing the Constitution. And we have no other than retired
Justice Antonio T. Carpio to discuss that for us.

So he was former Senior Associate Justice of the Supreme Court and he chaired the
Supreme Court second Division as well as the Senate Electoral Tribunal. And he Penn
935 decisions including significant decisions involving the Constitution and its
amendment or revision. So ladies and gentlemen, former Supreme Court Justice
Antonio t Carpio,

SPEAKER 7
A pleasant morning to everyone. Please sit down. I wish to thank the up law community
for hosting this forum and I'd like to thank Dean Land <inaudible> for heading the
University Up Law Initiative on this forum. My last night I was scanning the internet and I
saw several statements on the People's Initiative that the People's Initiative at the
Present People's Initiative is now dead.
It's dead in the water, dead on arrival. So this morning, since it's already dead, we
should give it a proper burial. My presentation is divided into four parts. First, that the
present people's initiative is unconstitutional because there is no enabling law. Second,
that the present people's initiative is unconstitutional because it is a revision, not an
amendment.
And third, that this present people's initiative is immoral because it is a grand deception.
And fourth, I will discuss about the current effort in the Congress to amend, to propose
amendments to the Constitution. We are the first method I referring to the first method
when they discuss separately and vote separately. Okay?
The Constitution says Congress shall enact a law to implement the people's initiative
provision of the Constitution. Congress enacted the law. But in San Jago versus Alek,
the Supreme Court said that law was insufficient, incomplete, and cannot implement the
provisions of the Constitution and people's initiative. And that decision became final.
Okay? Nine years later, Gambino came in Gambino, the, the Supreme Court said that
the, any, the people's initiative can only amend but not revise.
But 10 justices opined that the former initiative law that was invalidated in San Chicago
was valid.
Can it be done? So here was a law that was declared unconstitutional by San Jago
became final. Can the Supreme Court nine years later say it was actually valid? Well,
10 justices, the more the majority said it's valid. It was valid. Well, in San Ingo, in
Lumino rather the FAO says that, let me read the file fao, it's very simple that the, that
the petition under g so and so is dismissed, period.
That's the Li Bino district. There was no the reversal of the San Jago. And in my
financial I stated that and I quote, there is no need to revisit the court's ruling in Sango
declaring RA 67 35, incomplete, inadequate, or wanting in social terms because there
was no need, an affirmation or reversal of St. Cha will not change the outcome of the
present case.
So the, the main decision conforms to the failure. And we all know that the failure, the
dispose of portion prevails in case of inconsistency between the body and the fao. But
in the case of Gambino, there was no inconsistency. The inconsistency was there were
separate decis, separate opinions that said the rep San Jago should be reversed. So
which will prevail the failure of the main decision or the expressions of opinion.
In the separate dissenting and con comparing opinion, of course the failure will prevail
because even if there is an inconsistency in the main decision between the failure and
the body, the failure still prevails.
How much more if the inconsistency is found in separate dissenting and concurring
opinion. So this one, there was no reversal of San Jago by Leino. Second, when the
court said in San Jago that the Republic Acts 67 35 was unconstitutional, incomplete,
that erase Republic Act 67 35 from the statute books, it does not, it did not exist
anymore.
Can the court revive that? Does the court have a legislative power to revive a
non-existent law cannot. To revive that 67, 35, you need legislative power and the only
Congress can revive it by passing a new law. But Congress never passed a new law.
And third, there is what is called the, the Immutably immutability of decisions of the
Supreme Court Immutability doctrine of immutability.
Of judgments. And let me quote the Chief Justice Mundo recently on this. It is well
established rule that a judgment, once it is attained finality can never be altered,
amended, or modified even if the alteration amendment or modification is to correct an
erroneous judgment. This is a principle of immutability of judgment to put at end to what
would be an endless litigation. Of course there are exceptions like correction of
topographical errors, but never to reverse the judgment itself.
Once the judgment becomes final, that's it. It cannot be revived anymore.
A doctrine can be changed, but it is prospective, it cannot go back to resuscitate an
invalid law. So there is, as of now, there is no enabling law to implement the people's
provision. People's initiative provision <inaudible>, there is no enabling law. And that is
why the Comac and bank suspended their implementing rules because they realized
there is no enabling law to implement.
What were they implementing? Nothing. So if you file now the Petition for People's
initiative with the Commonwealth, they will just dismiss it because the majority do not
believe there is an enabling law and they're correct. There's no enabling law, okay?
That takes care with us first, that there is no enabling law. Second, that it, this proposal
under the people's present people's initiative is an amen is not an amendment but a
revision. Now in Li Bino we clarified no even before La Bino, if you look at the text of the
Constitution, it refers to amendment or revisions when it comes to constitutional
convention or Congress itself amending.
But if you look at the people's initiative, it only mentions amendments because that was
deliberate. The Con Kong delegates extensively discussed that a people's initiative can
only amend but not revise the constitution. Why? Because we borrowed this concept of
people's initiative from the United States and it's uniform in all states of the United
States. A people's initiative can only propose amendments but not revisions to the
Constitution.
And that's exactly what La Bino said in La Bino. They wanted to change the form of
government from presidential to parliamentary. Of course that's a revision and that's
why Li Bino said it cannot be done through a people's initiative because the People's
initiative is only for amendment. Okay, third, what is the nature of the present people's
initiative? The present people's initiative. They're saying that we change the provision
on how, how Congress can amend the constitution.
That at present Congress can propose amendments or revisions to the Constitution
upon the call of both the Senate and the House.
And there must be a call by both houses and that the vote will be three fourths of all
members of the house. That's it. Now, the amendment being proposed under the
People's Initiative is that the Congress can be called to propose amendments or
revision the Constitution upon the call of either the speaker or the Senate president. So
only one person can call it and it can be called and upon joint voting of three fourths,
okay, joint, is that an A revision or an amendment?
In Lino, we said that if you alter the check and balance or a basic principle of the
Constitution, then that is a revision. And this is a revision. This proposal now is a
revision because they are altering the check and balance. Because if this proposal is
the proposed change in the present, people's initiative is approved by the people, then
the speaker of the house alone can call Congress to propose amendments or revisions.
And even if 24 senators oppose it, 255 members of the house can pass a resolution
abolishing the Senate.
There is no check and balance. So this is clearly a check and balance amendment. And
that cannot be done by a people's initiative because the people's initiative can only
amend, like for example, single amendment that to run for president, you must be a
college graduate. That's okay, that's single amendment. But to change the check and
balance where the vote of Congress is totally ignored, that violates the check and
balance principle.
Okay, let's go to the, the fourth, the third that this is a grant deception. Why the People's
Initiative proponents claim that we are changing the economic provisions, only the
economic provisions because the present economic provisions are responsible for the
low foreign direct investment, the high unemployment rate and everything else that, that
is this country.
But what are they proposing to change? They're proposing to change a political
provision that the speaker of those alone can call congress to conv, to convene, to
propose amendments or revisions. And a vote of 255 members of the house alone can
abolish the Senate. That's a political change, that's a political amendment of the
Constitution. So their ostensible reason is economic, but they're actually changing
political provision.
When will they change the economic provisions? A, after the First Amendment is
ratified, we will hold another proposed change where we will change the economic
provisions. Why two step? Why do you want a two step Chacha when you can do it with
a one step Chacha? And one plait is 13 billion pesos according to Chairman Garcia. So
why waste so much money? We, you know, they, they're saying we are changing the
economic provision, but what they're asking you to sign are changes in the political, the
most political provision.
So I call it a grand deception, just like the case in La Bino versus now let me go to the
present pr, present effort in Congress.
The Constitution says Congress upon three fourths vote of the Senate and the House
can propose amendments or revisions of the Constitution. Now, when the Constitution
has a very clear definition of Congress, Congress shall consist of a Senate and the
House of Representatives by the act of the Senate alone, is not the act of Congress.
The act of the house alone is not the act of Congress.
So when the Constitution says Congress, a PTI for votes shall propose amendments to
the Constitution. There must be both chambers acting separately because in the 1935
Constitution, it says that Congress in joint session assembled can propose amendments
to consumer upon separate voting. So it's very clear they must meet jointly. That's the
requirement on the 1935 constitution, but the present constitution does not require joint
session.
So what is the meaning? There is no need for a joint session. It's not required. When
Congress, when the Constitution says Congress, A upon three first vote, it is the same
Congress that passes ordinary legislation, voting separately, discussing separately. For
the longest time, the house always interpreted that to propose amendments or revisions
as a constitution, there must be a constituent assembly.
They must meet jointly and vote jointly. But the word constituent assembly doesn't
appear in the present constitution. There's nothing, there's no word such as joint, joint
session or constituent assembly. That is why for the longest time since the adoption of
the 1987 Constitution, the Senate has refused to meet to pass any proposed
amendments or revision Constitution because they're afraid of the joint voting. If they
agree to meet with Congress in joint session, and even if Congress says We will not, we
will vote separately, but one congressman there can go to the Supreme Court and ask
for an interpretation.
Are they supposed to vote jointly or separately? And the Senate could lose. That's why
the Senate refuses to meet with the House. Therefore, this provision is a dead letter
provision of the Constitution. Congress shall up and three fourths vote because con, the
Senate refuses to implement that because they're afraid that they would be abolished.
But fortunately, the House and the Senate has finally agreed to interpret it in this way.
They will discuss separately and vote separately, just like in ordinary legislation. We
have finally resolved the constitutional deadlock and it's happening now in Congress.
The houses deliberated and approved resolution of both houses seven. And it's now for
the turn of the Senate to approve it.
It's the, the tax of their proposed amendment is exactly the same that I'm referring to the
text unless otherwise provided by law. That's all that they introduce in those three
provisions of the Constitution. So we have resolved the constitutional crisis, the dead
luck that has prevented us from amending the Constitution, and I hope the Senate will
pass their own resolution.
Now, I am against the PI as a means of amending the Constitution because it is
unconstitutional. But I cannot say that of the present effort by Congress because it's
there in the Constitution. Congress upon three fourth vote and Congress is the Senate
and the House. But I am still against the President move in the, in Congress to insert
the word unless otherwise provided by law. Why? Because for me that is not enough.
If we open our telecom industry, we open all our businesses to foreign investment. It
must be reciprocal. Reciprocal. We must, they must allow our own businessmen to
invest in their own country. Like for example, Vietnam limits foreign ownership in
telecom to 49%.
If we open up a hundred percent our telecom industry, the Vietnamese can own our
telecom companies, but we cannot own a hundred percent of their telecom companies.
That is why in the amendment to the public service app that Congress recently
approved. Let me show you this. The third offers third telco carrier slot. The public
service app was amended because of this, the 30 guaranteed to Xi that the, the China
can own and control a hundred percent a third telco in the Philippines.
So he made that promise. So how did he force Congress to do it? It was an election
year and he said for later release, your pork barrel will be released to you if you approve
two things, cancel the franchise of A-B-S-C-B-N, approve the Amended Public Service
Act. And it was, it was of course done by Congress because it was an election year. The
the reelection money comes from the pork barrel. So why did Congress allow that?
Because the Constitution says a public utility must be 60 40% owned by Filipinos. How
did they get out of that? They redefined the term public utility. Public utility can, it's
limited to this, but all the rest will now be considered public services. But there is no
distinction because we have a case which says public utility is a company that gives
public that, that provides public services.
And in fact, during the American regime, the term public utility was changed by law to
public service.
So they're interchangeable. But under the Amended Public Service Act, we have made
a distinction. Now we all know you've been taught that the Supreme Court is the final
interpreter of the Constitution to interpret words, phrases, and sentences. That is the
primordial power of the Supreme Court. Without that, the Supreme Court is nothing.
Now Congress is saying the term public utility, which appears in the Supreme Court in
the the Constitution is defined this way.
They have defined it. It's the Supreme Court bound by that definition. For the longest
time whenever public utilities discuss, the first example is telecom and land
transportation.
But in this amended public service app, land transportation, air transportation, sea
transportation are no longer public utilities. Telecoms no longer public utilities. It was
changed by Congress. Can Congress by law interpret a term in the Constitution with
finality or is it the sole province of the Supreme Court? Now, if the Supreme Court will
say Congress can interpret a term free sentence in the Constitution and that is binding
on us, then the Supreme Court will become an appendage, a sidekick of the Congress.
There is no co-equal. There is no three, three branches of government that are
co-equal. It'll erase the power of the Supreme Court. So my fear is that the Supreme
Court will strike down the Amended Public Service Act because it is contrary to their
power. They will be totally inu if Congress can by law define the terms and phrases and
sentences in the Constitution, there is no more Supreme Court.
But what is the problem? Why am I discussing this? Because since the Amended Public
Service Act was approved, a lot of foreigners have come in. They believed in the law,
they invested. If Congress will say, bang, that is unconstitutional, it'll be a terrible blow to
our image. When the 30 was president, he said, I will not honor the Arbitral Award in the
arbitration between the Philippine government and Manila water, despite the fact that
that is in the contract that was signed by the government and Manila Water, that
disputes shall be resolved by international arbitration.
Luther said, I will not honor that. That was a big blow on our credibility. There is no rule
of law in the Philippines because of that. That's why our foreign investments declined
because of that. Why will a foreigner bring his money here, sign a contract with the
government, knowing fearing that the, that the government can at any time change the
terms and conditions?
He has sunk his money here already. So for foreign investments to thrive, we must have
a rule of law. You cannot, you cannot say that we can abrogate the contract that we
signed with you. And this is what's going to happen with the, with the Amended Public
Service Act. If the Supreme Court will say unconstitutional, what happens to their
investments here? I, I think it'll take us decades to recover from this blunder. Foreign
investors will not come in because they fear that there is no rule of law here and our
foreign direct investments will go down further.
So what is the solution? How do we save the country from this impending disaster? If
my, because if I were in the Supreme Court now I will declare it unconstitutional
because that is the very essence of judicial power to interpret the Constitution.
So that is why reluctantly I'm saying Congress should amend the present efforts in
Congress should push through. They will amend now the provisions and public utility
unless otherwise provided by law that will cure the defect. If they pass the amendment
and it's ratified by the people public utility 60 40 unless otherwise provided by law, then
that solves the problem. Because we have cases in the Supreme Court where Filipino
says Toronto of foreigner that is questioned before the Supreme Court.
That's unconstitutional. But in the meantime, before the decision comes out, the
foreigners sold the land to a Filipino, the defect has been cured. This is the essence of
this amendment. It'll cure the defect and prevent an economic disaster. So reluctantly,
I'm saying we have to, at least for the public utility aspect, we have to resolve that by
passing. But Congress should pass it and I hope the Filipino people will understand that
it'll be worse.
You know, this is the fault of Thete because he said pass the amended Public Service
Act otherwise you will have no pork barrel.
And that's, you know, the Supreme Court struck down the P DAF and the D because
Congress cannot participate in the implementation of a law and Congress inserted there
that they can recommend where the money will be spent. Of course they'll recommend
in district we struck that down. So everything goes to the President now. So Congress
still enacted the pork barrel, but it's now lodged in the Department of Public Works, sole
discretion of the President to release to each district.
So he became more powerful in the hands of a president who has no morals. He will
use it, but in the hands of a president who's decent, that's what we need. So I, I have to
reluctantly agree that we need to amend by the president effort in the House and the
Senate voting separately and discuss separate, at least the public utility side education.
We can do away with that.
That's not the, that's not urgent advertising. It doesn't matter because the advertisers
don't need to come here. The advertising agencies that make that make all these
graphics, they all do it in us in London and it's all in the internet. They don't even have to
come here. It's only the public utility because it'll be a terrible blow to our image if we
say that the Amended Public Service Act is unconstitutional.
Of course I agree it's unconstitutional because that will remove the power of sole power
of con, of the Supreme Court to interpret the constitute. But we have to be realistic that
this will be a terrible blow, terrible blow to con. So we have to cure that defect and to
cure that defect, we have to amend that provision on public utility at least unless
otherwise provided by law. But subject to reciprocity, we cannot allow the Vietnamese to
buy our telecom and hear control and we cannot do it in their, in their own country.
It has to be reciprocal. In fact, now the EU realize that they have opened up, the
Chinese have been buying their companies, but they cannot buy the same companies
in in China. So they are requiring now reciprocity in all their in investment agreements.
Same with the us. There must be reciprocity. That is basic.
I have also added that aside from the addition of subject to reciprocity, that there should
be a qualified majority like subject to two thirds vote. Because if it's just ordinary
legislation, a quorum, a majority of a quorum can pass a law. A quorum is 50% plus one
and a majority could be 50. So I think that's too low. It has to be from if you, it's now a
constitutional provision.
You need three fourths vote to amend it. If you reduce it to an ordinary legislation, at
least have a A two thirds vote no. So with that, I end my presentation. Thank you

SPEAKER 1
Salamat po Justice Carpio for elucidating on the reasons why the efforts of some
sectors to undertake the people's initiative is unconstitutional. We also note your
reluctant agreement with the current efforts of Congress to amend at least the
provisions on public utilities in the present constitution. And we also note your
recommendation that the insertion of unless otherwise provided by law isn't enough and
it should be qualified further with a requirement of reciprocity.
Now let us hear from a professor of the UP Department of political Science. She was
also the former chair of the UP political science department. She recently concluded a
project on performance assessment of the 1987 constitution and she has ongoing
research on the analysis of the attempts of constitutional change by the current and
past administrations, ladies and gentlemen, to talk about the political implications of
constitutional change.
Let us hear from Professor Maria Ella L Atienza, good morning to everyone and thank
you

SPEAKER 9
To the College of Law for inviting me to actually, I'm here to represent the Department of
Political Science and I'm glad that we can have this conversation regarding charter
change and the many issues that we have to think about when we discuss changing the
Constitution. What are the important things to think about the constitution and the basic
purpose of the Constitution in politics and society.
So next slide please. Very briefly, what I'll try to do in my brief presentation is to give
basic information about the Constitution. Perhaps those with undergraduate degrees in
political science would be familiar with this. Then again, very briefly, since we've already
touched on this many times the context of the 1987 Constitution and the methods of
amendments. Then our project, which we concluded actually in 2020, the constitutional
performance assessment of the 1987 Constitution will give a context later on why we
did that.
Then very briefly, the charter change attempts of previous administrations. We focus on
the attempt of the previous administration to first to shift to a federal set up. And
secondly, after giving up on federalism by after the midterm elections, there was a shift
to what they consider as incremental changes in the Constitution.
But of course that was overtaken by COVID-19. And then focusing on the position paper
of the Department of Political Science, the issues and concerns regarding the current
efforts to revise the Constitution and some concluding remarks. Next slide please. So
basically when we talk about constitutions, what's the purpose of a constitution? So if
we're looking at the textbook definition of the Constitution broadly, it refers to a set of
rules written and unwritten that seek to establish the duties, powers, and functions of
the various institutions of government, regulate the relations between them and define
the relationship between the state and the individual.
And of course the term constitution is also used now more narrowly to refer to a single
authoritative document. So we're now used to a single document because historically
before some constitutions were composed of several documents like the previous
French constitution. And then of course we have this very unique case of the until now
the British constitution, which is an evolving constitution composed of both written and
unwritten portions.
Okay, next slide please. So what is the basic function of constitutions in politics and
society, particularly in a nation state? The most important purposes of the Constitution
are first, a Constitution empowers states, it establishes values and goals, it provides
government stability, it protects freedom, particularly freedom of people both as
individuals and as members of groups or communities.
And finally, a constitution legitimizes regimes. Now we go to the question. Next slide,
please do constitutions actually matter.
In day-to-day lives of modern nation states, constitutions are supposed to provide
benefits such as political stability, limited government, and guaranteed rights and
liberties. Of course, every time we talk about a particular constitution, we also talk about
the idea that constitution should also serve their values purposes only when they are
supported by a range of other cultural, political, economic and social conditions.
So in a way, constitutions should always be open for review, for revision or amendment
because we also have to situate if the contents of the constitution are actually still in
sync with the conditions or the changing constitutions of the society in which it was
envisioned to operate in the first place. But one important aspect about constitutions
and whether they matter or not in a particular political society is that a key factor is
whether or not a constitution is respected by rulers and dominant groups.
Another factor is that adaptability of cons, the constitution and its ability to remain
relevant in changing political circumstances. Next slide please. So going to the 1987
Constitution, as we all know, it emerged as a result of people power in 1986. Many of
the provisions are said to be reactions to what we have experienced or are for many of
you here, maybe what your parents and grandparents experienced during the seventies
and the eighties.
So there was an effort to Denmark Sify the Constitution by the 1986 Constitutional
Commission. The 1986 Constitutional Commission, which drafted the constitution is a
multi-sectoral diverse group of appointed commissioners from a list of nominees in
1986. So unlike what we normally expect a nine, a constitutional convention to be, the
members are not, were not popularly elected.
However, in 1986, various groups were asked to nominate names to the constitutional
convention, and 50 were appointed commissioners.
Not all of them accepted the appointment of President <inaudible> Akino. However,
compared to a regular elected constitutional convention, for instance, the the
constitutional conventions that drafted and made the 1935 constitution and the 1973
constitution, the composition of the 1986 ComCom was actually more diverse and more
multi-sectoral.
If there were elections at that time, we would not have a number of up professors in the
constitutional commission. One of the commissioners was from the Department of
Political Science, former professor at Garcia. Okay, so it was the 1987 Constitution was
ratified in a PLE on February 2nd, 1987, overwhelmingly by the voters, it came into
force on February 11th, 1987 and definitely it legitimized the post 1986 political regime.
Next slide, please. As we have discussed, and as you all know, there are three ways of
amending and revising the 1987 Constitution for revisions. We can go through a
constitutional convention or a constituent assembly, and of course for amendments we
have the People's Initiative.
And as mentioned by, as we have mentioned earlier, there's still no enabling law for
people's initiative. And whether through constitutional convention, constituent assembly,
or people's initiative, any final decision will have to be ratified by majority of the Filipino
voters. Now going to our project, the Constitutional Performance Assessment of the
1987 Constitution.
Next slide please. Okay, you can, these two publications are free for download. This
research was done by myself and a number of colleagues in the Department of Political
Science. This was done in cooperation with the International Institute for Democracy
and Electoral Accountability. The Philippine constitution was actually only the second
constitution to be subjected to a constitutional performance assessment of with initiative
of international idea.
The first one was the South African constitution, and currently the Indonesian
constitution is being reviewed by a group of Indonesian scholars with the support of
international idea. We did the research, the assessment in the context of at that time the
federalism attempt, the federalism shift attempt of being pushed by the Duterte
administration.
But when we came out with a publication in February, 2020 and we were already
discussing and disseminating the results, the pandemic came and we had a lockdown.
So immediately international idea said, can you do a follow up assessment based on
the experience of the Philippines during the lockdown? And was the constitution still
operating? Were the provisions of the constitution still relevant during the lockdown and
COVID-19?
Next slide please. So the international ideas constitutional performance methodology is
qualitative. It's not an index, it's not quantitative. And because we are still pilot testing
the the methodology, it's still up for revision. And what we like about this methodology is
that while there are certain criteria, like the internal criteria and the external criteria, we
are free to to determine what are the indicators and what are the questions that we
should ask for internal, for internal criteria and external criteria.
So very briefly, when we talk about internal criteria in the assessment, these I, these are
the criteria identified with a constitution, self-determined goals. These are assessed by
looking at what the constitutional provisions actually say about different institutions
designed to meet this criteria. And compliance with the internal criteria assessed are
assessed by looking at whether or not the technical requirements in the constitution
have been met.
In terms of external criteria, the assessment of the constitution's design using normative
criteria are applied on what a constitution should be and in accordance with global
practice and theory. So we were able to come up with certain areas for external as
external criteria. These are democratization, decentralization, social justice, human
rights and gender equality, peace and conflict resolution and economic development.
They do overlap, but as our council of advisors, including Tom Ginsburg mentioned it, it,
it doesn't matter if this criteria overlap, we are still in the process of searching for
appropriate criteria and questions in looking at the external performance of the
constitution.
So next slide please. So we look at nine institutional design areas, electoral institutions,
legislative executive relations, the judiciary, accountability institutions, local
governments, rights, security sector, economy and labor and citizenship and equality.
So you can read the specific assessments per criteria in the two reports available in the
internet. So next slide please. Very briefly, what did we find out in terms of the original
publication?
In the internal criteria, we assess that O there is only thin compliance with the internal
criteria U used in the performance assessment. Why many of the technical
requirements in the constitution have actually been met in terms of setting up majority of
the mentioned institutions holding processes such as elections and enacting many of
the necessary laws and actions, but what is called thick or substantial compliance in
terms of meeting the goal set in the constitution is still one thing.
And furthermore, some laws mandated by the constitution, like the anti dynasty
provision, have not yet been enacted.
And we also noted executive dominance and the non-inclusion of many sectors in many
of the processes. Next slide please. In terms of external criteria, although notable
progress has been made, there is still limited or thin compliance in terms of actually
promoting substantial democratization, decentralization, social justice, human rights,
and gender equality, peace and conflict resolution and economic development.
With the pandemic coming in, we revised and we reviewed our findings and this is what
we came up with. Next slide please. In terms of general findings during the first year of
the pandemic, we noted that areas that were already identified as problematic in the first
assessment are indeed continuing to be so. And even areas where positive
performance was recognized in the assessment are being challenged as a result of the
pandemic.
And, but despite the challenges, we also noted some positive innovations, particularly in
the performance of the judiciary, local governments and citizenship areas that could
provide inspiration for more institutional policies and programs that could improve
performance on key goals of the constitution, such as decentralization and autonomy as
well as social justice and inclusive development. We also had recommendations at that
time in view of the continuing lockdown and the 2022 elections.
So next slide please.
We noted that it is still possible in the short term to focus on the passage of necessary
loss amendments of existing laws and administrative reforms in specific agencies and
stricter implementation of laws already in place to achieve many of the goals of the
constitution. Reviewing the constitution and possible amendments can still be pursued
after the 2022 elections, but it has to be grounded on genuine and inclusive
consultations, people's inputs and experiences.
We also noted that that aside from legal and administrative reforms, there should also
be focused on strengthening democratic actors groups, processes and practices,
facts-based decision making, transparency and accountability and civic education is a
must. Next slide please. We have already mentioned earlier, and Dean <inaudible>
already mentioned many of the attempts of previews, administrations, all of them failed,
but definitely from the Ramos administration to the 30 administration, there have been
various attempts and using the different means available to try to change sometimes the
entire or the political setup or the form or system of government, but sometimes there
are attempts to change certain provisions in the constitution.
So I'll not go very detailed into this next slide please.
So Ramos Estrada administration. Next slide. Administration. Next slide. Okay, so I'll
discuss this a bit because there were two parts in terms of the attempts to change the
constitution during the dote administration during the first three years, there was of
course the proposal to shift to a federal system with the president making this his
campaign, one of his campaign promises, and he immediately created a consultative
committee to draft a federal constitution.
However, he only appointed them after almost two years. This consultative committee
came up with a federal Ian constitution. However, the House of Representatives at that
time headed by the former president GMA, threw away the han the draft by Ahan
constitution and approved on third reading pass on third reading their own version of of
the federal constitution, which is actually a watered down version of the Han proposed
constitution.
Why did it fail?
There was, we noted leadership failure because while the president promised a federal
constitution, he gave very unclear direction of the changes that he really needed in
terms of shifting to a federal system. And there was already a lack of momentum. The
changes missed the window of opportunity because the midterm elections came soon.
At that time also, the new autonomy law which created barn was passed, the president's
own economic team expressed their lukewarm position saying that to shift a federal
system would be very costly and would really cost the national government there was a
problem in terms of congressional support.
And of course the Senate did not even prioritize charter change after the midterm
elections. Next slide please. There was a shift in the direction of charter change.
The federalism proposal was abound abandoned, and instead there was what the DILG
called surgical amendments to the Constitution and they dropped the term chacha
because they said it got very negative connotations. So they introduced another
acronym, they call it core or constitutional reform, but basically it's the same thing. So
they part federal the federalism proposal for the future with actually more specific and
some very progressive proposals, including banning turn code, focusing on improving
not just local gover, the local government provisions, but actually including some
electoral reforms.
It failed because COVID-19 happened and there was already lack of interest in
changing the constitution since the next presidential elections. It's already around the
corner. Next slide, please. Why did I discuss Lengthly Thete administration? Because
that was the assignment given to me in a chapter that will be actually supposed to
come, come out by the end of April this year, edited by my department chair RIS Aru
and our assistant chair Jean Encinas Franco.
So if you're interested about the detailed discussion of the failed <inaudible> initiatives
to change the constitution, you will find it as one of the chapters in this book, aply
Entitled Games Changes and Fears, the Philippines from Dote to Marcos, Jr. Next slide
please. Okay. And if we note all these attempts of previous administrations, we noted a
number of features.
All of them are executive driven. There is lack of public support as evidenced by many
of the surveys and many of the surveys about people's priority issues and concerns do
not include charter change. There's also unclear support from allies in Congress due
mainly to weak political parties and vested interests of many of the politicians. And
because of the experience under martial law and Marco Sr himself using charter change
to establish constitutional authoritarianism under the 1973 constitution, any attempt to
change the constitution are always suspect to attempts of on the part of politicians to
stay in power, particularly extending terms or lifting term limits.
Actually, in one of the few instances when then candidate Marcos Jr was campaigning,
he had an interview and he was asked whether he will prioritize charter change. His
answer, Wason people distrust, politicians being charter, change term extension terms,
term limit.
So they dis in a way he understood that people distrust politicians. So next slide,
focusing on the position paper of the Department of Political Science in 2023. This is the
latest version of our position paper, which we have been constantly revising since we
started as a department, as an institution to play a bigger role in many of the
discussions on charter change since 2016, we raised several important questions in any
effort to change the Constitution.
First, is there really a need to amend or revise the 1987 Constitution? Of course these
questions overlap or are related with one another. Many of the instances where we
change our constitution were important.
Historical, historical events or there were major shifts in our political system. Second,
regarding the scale of changes we want, how grand are the changes being envisioned?
Of course, the Dote federalism project can be considered a, according to federalism
scholars, the Big Bang scale of change as opposed to the more incremental reforms or
amendments.
Third, the timing. When is the right time to change the constitution? Is it the right time to
change the Constitution? And what are, what do the public think? Is there public CLA
number four is there, there is always the need for a more deliberative and dialogical
process. And the role of the public should not just be in actually electing
representatives, whether as members of the two houses of Congress or the co, if there
will be a co, a co a constitutional convention or in approving or disapproving the draft
constitution or the draft amendment, there should be a more active plumber on the part
of the people.
Number five, in terms of looking at constitutional reform, how does it measure vis-a-vis,
for instance, the agreements as a result of the peace processes like for instance, the
the new autonomy law for Muslim Menina Menina, which created farm from arm and
other reforms that the, the values institutions of government are actually pursuing.
And finally, the mode of amending the Constitution. Should we go for the constitutional
convention, the constituent assembly or the People's Initiative? But let me focus just on
two things. Next slide please. In terms of what do the public say, the latest March, 2024
survey of Pulse Asia, pulse Asia shows that overwhelming rejection or disapproval of
those who were surveyed.
So 88% feel that the current constitution should not be amended. Now this is actually a
change because last year 41% said that they are amenable to change in the
constitution, which was the 2023 result was actually higher than amendment and
revision.
When we look at the constitutional convention, definitely there are advantages, some
literature point that if we go through a constitutional convention, members are more
focused on the job of revising the charter because this is their main purpose as opposed
to a constituent assembly. The process can be more deliberative, transparent and
democratic. However, in a constitu constitutional convention, there is no assurance that
the members may be more inclusive and diverse than those of the constituent
assembly.
Elected members are not guaranteed to be better and more representative delegates
than appointed ones. As I mentioned earlier, when it comes to the consi, the
composition of the Constitutional Commission of 1986, the process is also more
expensive and time consuming and there are no accountability mechanisms. Sorry, I
should have been discussing the constituent assembly. Okay, constituent assembly,
definitely there are also positive and negative plus or minus points regarding going
through a constituent assembly.
Definitely this is cheaper and more efficient consisting of our elected lawmakers, but
there are several drawbacks as mentioned by international idea, the assembly may
seek to advance its institutional interest at the disadvantage of other institutional actors.
The political parties that dominate the assembly may also lack internal democratic
structures. Number three, the parties may tend to favor electoral systems that distort the
distribution of representation and power.
Number four, excluded parties may resort to violence or not own the process. Number
five, if the legislative chambers are controlled by or heavily allied with a chief executive,
the chacha process is heavily executive driven amendments may unjustly favor the
chief executive and the executive branch. And finally, election to the legislature does not
guarantee expertise as we all know. Looking at the number one senator currently who is
pushing for until now, federalism.
Okay, going to people's initiative. Next slide please. I will no longer mention the next
slide please. Okay. For people's initiative, definitely it is considered to be the most
bottom up approach if used appropriately, but this is, this also requires genuine
mechanisms and processes for informa, for informed discussions and non interference
and exploitation of the process by politicians with vested interest.
So Hindi to own people's initiative, <inaudible> attempt earlier. At the end of the day, the
choice of the appropriate mechanism have to be made, has to be made in favor of
actually generating greater legitimacy for the constitutional reform process. Next slide,
ma.
In terms of concluding remarks, constitution building amendment and revision are
daunting tasks with long lasting and unintended consequences for all, including future
generations. It is important to discuss whether changing or amending the Constitution is
the answer. Or are there other alternative reforms that would suffice to solve national
and local issues? Is the timing right?
Are there more pressing problems or is changing any part of the Constitution sufficient
to address what is needed? Complex issues must also be explained adequately on the
ground because the primary decision makers of any change in the Constitution are
ultimately the people. People have to be involved in substantive deliberations from the
very beginning. In fact, discussions among the people using genuine information and
not top down propaganda should be encouraged.
What are the issues that are important to them and do they think changing or amending
the Constitution is the answer to the day-to-day survival. Final slide please. Okay, a
slide. Okay. The challenge is to find appropriate arrangement or changes, not
necessarily in changing the Constitution that fit the context and are acceptable to
majority of the stakeholders and arrangements can also evolve over time and
experience.
Thank you very much

SPEAKER 1
<inaudible> Professor Ella for discussing with us the results of all of your research on
constitutional change. Now, as we are pressed for time, if you would like to get your
snacks outside, you can just, you know, surreptitiously step out and get your sandwich
and your drinks because as I've said, we're pressed with time. We will have to proceed
with the next part of the program, which is the part pertaining to supposedly the
statement by former Supreme Court Justice Jardeleza, who unfortunately will not be
able to make it today as he has to attend to a sudden engagement in his stead.

We are honored to have with us attorney Luis Vera Cruz. He is former co-managing
partner of Acra and he's also a graduate of the Up College of Law and he has masters
of laws from Cornell University. So attorney Luis Vera Cruz. Ladies and gentlemen,

SPEAKER 10
Good morning to everyone. Wonderful day for all of us. It's a good feeling to be here
within the hall of this great college after a very, very long time. By the way, it's our, our
class is celebrating its 50th anniversary and the celebrate, which is to be hosted by the,
the class of Dean Leland herself.
They're also celebrating their 25th or silver anniversary. It should not be standing before
you today. It's supposed to be former justice, but he is a conflict of schedule. By the
way, former Justice Za was a classmate and also Senior Associate Justice Tony Cario.
He was also a classmate. Justice Za, myself and attorney Cle Diaz and attorney Patricia
Lois del Rosario were engaged by the Senate to lawyer for them to stop and invalidate
the People's Initiative that was started January this year.
So I'm, I'm speaking as a lawyer for the Senate and Justice Aza has given me his
summary statement, which he asked me kindly to read in this forum. Now, what was the
Justice? It's my chance to dissent somehow to the observation of Associate Senior
Associate Justice <inaudible>.
It's an honor, I don't think, I don't think the, the People's Initiative that was started last
January is dead on the water. Maybe it's the come before the storm Lamu, we are
dealing with politicians and like the weather, they're unpredictable. But I mean, so the,
we have prepared a five petitions for the Senate in order to stop these people's
initiative.
And we have reports, or we know that <inaudible> is trying to study and amend their,
the rules and regulations which have been criticized as inadequate, but which has been
argued that these rules and regulations are invalid because there is no enabling law.
And so we have advised the Senate to stop the ate from pretending to enhance the
rules to implement the People's Initiative because the Supreme Court has already ruled
that the mandatory law, I'm sorry, that the implementing law passed by Congress, which
is RA 67 35 is invalid because it is inadequate.
It is an invalid delegation of legislative power. And because this law has been
invalidated by the Supreme Court, there is no basis for the common act to promulgate
and implementing rule and regulation to implement this non-existing law. Okay, section
two of Article seven of the 19 seven Consti 1987 Constitution provides that
amendments may be directly proposed through a people's initiative.
This provision is non-executive because as you know, provisions of the constitution as a
general rule are non-executive. The reason being that we will be at the mercy of
Congress if Congress is empowered to implement the law by an by an implement. I
implement the Constitution by amending, by implementing enacting, implementing laws.
An example would be the anti dynasty provision of the Constitution. The anti dynasty
provision of the Constitution is dead in the water as the term of to borrow the term of
senior Associate Justice <inaudible>. You know, the 19 87 8 19 87 constitution that was
effective how many years ago? More than 40 years ago, the Congress is not even
minded to pass a bill to implement the anti dynasty provision.
So as I said, the provisions of the Constitution are non-Executive General are, are
executing provisions except when the particular provision itself says that as, as that,
that provision may need a congressional enactment. So article or section two, article
seven of the 1987 constitution requires that Congress shall provide for the
implementation of this people's initiative.
So on August 4th, 1989, Congress enacted the Public Act 67 35, which is the Initiative
and Referendum Act. And in accordance with the Constitution, the ALEK passed a
resolution to implement this particular law. There are three significant cases related to
this.
The first one was the Medium defenses Ongo versus Comm Commission election,
which on March 19, 19 7 was decided by the Supreme Court
And the Supreme Court in this case held that the law or the implementing law is
inadequate and incomplete and therefore it is not a valid delegation of legislative
authority. As students of constitutional law, you know that there are requirements for a
valid delegation of legislative authority, okay?
As sale indicates of versus auditor Auditor General, the law must be complete, it must it
state the objective or the growth that has to be carried on. And it must fix standard, A
determinable standard that maps out the boundaries within which the delegate must
exercise is delegated power. So without this, the law is considered invalid as a
delegation of legislative authority.
And so after a few months, after a few months when decided, Sango was decided,
another case was filed before the Comac, which is entitled PMA versus Commission on
Elections. And the Comac dismissed this case where upon the petitioners went up to
the Supreme Court to sale the dismissal and the Supreme Court said that the Ole was
just implementing the decision in the case of Sango.
So the Supreme Court repeated that the enabling law passed by Congress to
implement section two of Article 17 of the Constitution
Is an invalid one. And then 14 years later we have the case of La Bino where the
<inaudible>, without any explanation, promulgated another resolution purporting to
revise the regulations governing the conduct of the pi.
And after that resolution has passed. So you are aware that this January, this year a
people's initiative was started where Signator sign signatory sheets were passed around
for the signature of the people supposed to be initiating that the People's Initiative.
So Congress upon learning this conducted public hearings chaired by Senator Aime
Marcos, the Committee on electoral reforms and people's participation conducted a
hearing. But one day before the hearing started, I don't know what happened, but the
EK pass a resolution suspending all processes relating to the that public, that People's
initiative.
But that resolution did not stop altogether the, the process of obtaining the signatures of
the people. It merely stopped the, the EK officers or officials around the country from
receiving the signatory sheets being submitted by the So-called people who started this
initiative.
Well, in one of the hearings, a testimony was given by the supposed prime mover of the
People's Initiative. He testified that he met and coordinated with members of the House
of Representatives
Who assisted the PI or the, or The People's Initiatives gathers signatures and provided
administrative and advisory support, not to mention financial support. He admitted that
he gave 55 million in costs to fund the People's Initiative. But later he recounted saying
that he funded only half the amount and he unnamed, however, he did not name the
supporters giving the balance.
Witnesses also testified that in exchange for cash, they were required to sign a
document under the guise of people's initiative.
A provincial governor even presented the ground, a group that with a text message from
the government official acquiring employees to sign the signature sheets. In other
words, there is evidence to show that this is a bogus people's initiative. It is not initiated
by the people but initiated by politicians. So it is a politicians initiative.
And so this was one of the grounds that we stated in the, in the petitions that we have
filed. The inescapable conclusion is that the People's Initiative is an illegality which
should be slain at sight by the Supreme Court. Given the evidence and the testimony of
Chief Justice Rio de Jr. An initiative of others being beguile using Beguile people, the
Senate must stop this legal abomination and the com EK must forever tain from giving
its life support the case of Sango must prevail.
And so that's, that ends the statement of justice, former justice. But I may, I might, I may
I add that we have prepared five petitions ready to be filed, but the Senate has not given
us the go signal because, well, they believe that as former senior Associate Justice
Cario said that the, the, the matter is dead on the water.
But you know, lawyers have doubting minds and we said that that's just the come before
the storm something is brewing. And even if we have that decision in the Sango case,
well Chief just Senior Associ, justice Cario quoted the the President Justice Mundo. And
I recall that the Chief Justice, chief Justice Mundo also also said in an interview that
decisions of the Supreme Court are not enshrined or carved in stone.
They can be abandoned, they can be reversed. So there is a chance for the Santiago
Doctrine to be reversed or abandoned depending on the political winds that we have.
Now, you know, we have hardened politicians and I use the word hardened, like they
use the word hardened criminals. So we really cannot say, we really cannot say so we
have to be on guard because this, I believe this people's initiative is still alive.
Thank you.

SPEAKER 1
Thank you very much, attorney Luis Vera Cruz. And so before the panel discussion, we
will have finally Professor Gwen grea DeVera. She's a associate professor of the up
College of law and she also teaches constitutional law and commercial law. Ma Gwen
please

SPEAKER 15
To Senior Associate Justice Antonio Carpio. I do have students here from Political Law
Review who are here of their own free will <laugh>. And one of our discussions early in
the semester was actually on Lumino versus Alek. So I'm very grateful Justice Cario for
the clarification on the resolution of the Motion for reconsideration. I'm not sure if all of
you know here, but for those who are doing their political law review and if you've picked
up the very, very good book of the Late Justice Naura, he does have, however, a very
short paragraph there where he says that the resolution effectively says that the Law on
Initiative is effective for purposes of carrying out a petition for initiative because he has a
different interpretation of that resolution.
So I think we have the definitive, definitive explanation on that note. And the law
initiative initiative based on the case of Sango v Kalik remains insufficient for purposes
of pursuing a petition for initiative. Now, very quickly, I just only have two points and I'll
be very specific.
So this forum has reminded me of just how old I have become because I've had to go
back to so many other discussions on charter change since maybe 19 97, 19 98. One
such forum I was invited to participate in was organized by the AT School of
government and one of the participants was a representative from an NGO who
emphasized, it's always difficult to discuss charter change because based on their
numbers, this was in 2007, only a small fraction of our people, only a small fraction of
Filipinos even have a copy of the Constitution.
So that's one important insight. I'm not sure if they've updated it, their NGO at the time
was devoted to disseminating printed copies of the Constitution in Filipino. So I'm not
sure how successful they've been since then. Number two, I've, I've also, so disclosure,
I was a clerk of former Justice Vice Mendoza, but the views I share are my own, but I've
accompanied him not a few times when he was invited to Congress, whenever there
were initiatives to change the charter.
And in one occasion he was asked to comment on what at the time was called the
HARLA proposal. So the HARLA proposal was not a proposal on the substantive
change, but rather on how it would be changed. And the Harla proposal is very similar
to what we've discussed today where essentially Congress will pass proposals or
approve a PRO proposals in the way that they would ordinary legislation. And as I think
Proma explained earlier, adjust Mendoza disagreed, which he did at the time.
And one of the, one of the contentious points at that time, so this was several years
ago, was because if Congress will be permitted to approach constitutional change or
exercise delegated constituent power in the same way that they pass ordinary
legislation, then that means that they may also then convene a BCA conference
committee to reconcile differences of their points, which at the time was considered to
be dangerous.
So let me go to two points. One is on, I was asked actually today to comment
specifically on the proposed changes to the economic provisions, but I'll just go through
two very quick points on that as well as on the modality for changing the charter. So first
off, I am not opposed to charter change except that in the time that I've been an
academic and have had the opportunity to pour over information on past charter change
efforts, which has been summarized for us by both all of our speakers, particularly Dean
<inaudible>, a no compelling reason has been provided to pursue any of those
changes.
In fact, in one forum that we had here a few years ago, one of the speakers I, I, if I recall
correctly was an Australian who was here studying constitutional change to him what
was important, what was urgent was to change Article nine on the free and open party
system.
So he thought that that should be reduced possibly to just a two party system at the
time. A apart of course from what we've mentioned earlier, Tora Cruz on the provision
against political dynasty because the constitution is very clear, they're iCal to public
interest and they should be prohibited. Okay? So, but having said that, so economic
provisions, and this is where I'd like to thank the School of Economics, this is not the
first time that we have looked at economic provisions.
One of the major efforts to do so was the Concord, which was mentioned earlier. So
when Concord was organized under the executive order promulgated by President
Estrada, subsequently they contracted their work to just focus on the economic
provisions. The summary of their report is actually available with the AT law journal and
one of their findings is very significant. No, the reason that compelled them to focus on
the economic provisions was to control the way that the Supreme Court will interpret the
Constitution by removing Filipino first policy.
Anyone here who's done constitutional law, guess why that was important at the time?
So you're here voluntarily.
So we, I don't want that to be a disincentive for later for, but because at the time the
Supreme Court decided Manila Prince Hotel on the basis of the Filipino first policy in the
Constitution is that compelling reason? I'm not sure. But Concord at the time at least
tried to study or provide empirical evidence for the changes that they were trying to
propose, which is not the same for the changes being proposed today.
In fact, if you go over the recording of one of the hearings, when they were asked why
these particular provisions, I think generally they said because they want to encourage
FDI, okay? And when dangers of lifting the equity restriction were pointed out, they were
quick to say, well nothing's going to change yet because congress will have to enact law
anyway. So it doesn't inspire confidence that this is something that has been well
thought out or that the benefits are clear.
So the second point, and this is with all due respect to Justice Cario. So I understand
the urgency that he pointed out earlier because of the Pelvic Service Act and in fact I
think it was IGLR that had a role in providing certain comments to the PSA
amendments. But I just to preface my particular point when we were discussing, we
were given opportunity to discuss the Public Service Amendment, the amendment to
the Public Service Act.
We did point out as Justice Car carpi discussed earlier that it would be problematic for
Congress to define public public utility differently from how the Supreme Court has
defined it. But we also pointed out that part of the reason why the amendment to the
Public Service Act seemed appropriate or was appropriate was because in a number of
these decisions that the Supreme Court, the Supreme Court, apart from defining public
utility in identifying the specific activities that would fall under it often referred to the
Public Service Act.
So we understood that Congress will not be able to overturn the interpretation that has
been provided for the term public utility, which I think Congress tried to adopt in the law
itself, but that Congress as our policymaking body can make a determination given
changes in times whether the particular activities in the Public Service Act should
remain in that law, right?
So I think there is a way for the Supreme Court to interpret the PSA and save it from
Unconstitutionality. But even if that were not the case, and this is with all due respect to
Senior Associate Justice Cario, I think it's dangerous and it turns the principle of on its
head when we say that there is constitutional amendment that can save or that can fill
the gap of what is clearly or what is being argued as a congressional defect or a
congressional deficiency.
If the PSA had not been crafted, if the assertion is the PSA has not been crafted well, in
fact, if we are going to pursue the argument and say that Congress can propose
amendments to the Constitution simply by approaching it as ordinary legislation or in the
manner by which they will pass ordinary legislation, then why not just apply that process
to ordinary legislation and either today in anticipation of a declaration of unconstitutional
constitutionality already rectified amendments to the PSA or should the court determine
that the law is unconstitutional, then pass another law that would be constitutionally
sound.
Okay. So we must put the burden and the accountability upon the branch whose
responsibility it is to legislate. Let's take the petition for initiative for example. The court
has spoken as Susan Rosa said, not once but twice in Sango and <inaudible> to say
that that law is not adequate, but several years has have already passed and Congress
has seen that there's there, there is effort timing again to resort to initiative.
And yet they have not passed legislation when the process for it is quite clear to them
correct they can pass it in the way that they would pass ordinary legislation. And
number two, as the School of Economics pointed out, there doesn't seem to be any
causal connection between the equity restriction in the Constitution and FDI. That's one
and number two, there doesn't seem to be any causal connection between the foreign
equity restrictions and our lagging behind our Ian neighbors.
So let me close by just reading part of part of their, their, their findings.
So this is available I think on the University of the Philippines School of Economics
website. So the author said in our assessment, the available evidence that statutory
foreign equity restrictions can explain the dispersion of FDI across the <inaudible> is
weak at best improvements in the business regulatory environment combined with
improvements in infrastructure have effects on FDI that dwarf the size of those coming
from any change in foreign equity restriction.
One paper estimates that the potential effects on FDI of improving perceptions of public
sector corruption to be eight times stronger than the potential effect of lifting equity
restrictions. So lifting constitutional restrictions may at best be described as nice, but
can hardly be called necessary. So I will limit my interventions to that and I hope that we
still have a few minutes for questions from the floor. Thank you very much for your
attention.
Thank you very much Professor Gwen. And now it's time for the panel discussion. So
the sofas will be set up on stage and as soon as they've been set up, you'd like to
request Justice Cario Ma Ella, attorney Vera Cruz and <inaudible> to kindly sit on the
sofas, come up on stage. The panel discussion will be moderated by Professors Paolo
and Mike Chu.
Right, thank you very much. We'd like to invite our speakers on stage. I know that we
are pressed for time, but we cannot miss the opportunity to discuss with our speakers
some of the issues that are still lingering in your heads and that they would be able to
respond to today to provide a lot more nuance and guidance in how we should be
making these decisions today. So if I could invite our speakers on stage, please.
You can sit anywhere <laugh>. Alright, so there is a mic and you can come to the mic to
introduce yourself and ask your question, but let me get the ball roll rolling to our
speakers. I wanted to ask, so a lot of the discussion has been centered on legal
principles and, and politics, but, and, and not a lot has been said about the people, for
example, in, in terms of people's initiative. And there's been, there have been comments
about whether this is truly an initiative of the people, but what do you say to the idea
that that that is a chicken and egg kind of situation where you don't develop a political
culture for initiatives, which is what is the case in the discuss
With people? Because it's important to develop a culture of deliberation and discussions
with the people. It's <inaudible>. For us, it's, we no longer use the term political
education because it's also insulting in many instances when we do research on the
ground. People do not want to be taught down. They want discussions, they want to
discuss their issues. So it's important, for instance, to ask them what are the important
issues that they're concerned with their day-to-day concerns.
And in discussing this, that's why initiatives like the one mentioned by Professor Gresha
that translating or distributing copies of the Constitution and other laws in Filipino or in
more popular versions. Before we had a discussion with some women legislators, they
were thinking about developing comics and videos to explain not just the constitution,
but other laws, violence against women law and under other laws because it's important
not to talk down with people or look down on them, but actually to discuss with them,
but at the same time, use the language that they use, the issues that they use, and from
there develop common ground.
So we need to develop that kind of of culture, but we also need to respect people. And
part of that, of course is
Dealing with them,
Discussing with them. Thank you.
Well, I think this, this is a Nobel provision in our cons, our constitution. So it's the first
time that we're exper experiencing this. So I think we should learn more and let us have
a legal engineering on this and maybe develop a culture as mom was saying, on
people's initiative.
So I think it's important, although Prof, Mike was saying, let's set aside Ali, but I think it's
important to note that the case of Lamina versus Kamala accept the tone for how we
should view initiative, particularly for or with respect to constitutional amendments.
Because that case underscore the importance of the right to information that those who
I think invariably, particularly if there is a law that enables it, although we will favor a
bottom up approach, that I think inevitably what we've seen is there are certain interests
which will necessarily surface those who will lead an initiative political or, or otherwise.
Because that's what we've seen in the last, I think, three cycles where we've, where
there has been an effort to do an initiative. So it's very important that regardless of how
it is led, that ultimately we as the people are made aware of the substance of the
changes being proposed, which is why Laina versus Kalik is very important.
On that point, several years ago, I'm actually not sure which unit within the demand
ultimately became responsible for it, but there were speakers from a particular
organization that does comparative constitutional law and they showed us videos. I'm
not sure if they were preparing it for, I forget which region, but what comes to mind is
Africa. But they prepared videos educating non-lawyers on constitution, and not just on
their constitution, but on constitution making.
Because as we have seen, I think in one of the papers that CIDS came out with, they
did a comparison in terms of what's happening with respect to constitution making
constitutional change in other parts of the world and, and it is happening. So I think
personally, one of our professors here, professor Dan Gaitan, wrote that perhaps
charter change has not succeeded because Philippines are deeply suspicious of it as a
direct result of our experience during martial law where constitutional changes we're
made not for our benefit, but really well for one perpetuate individuals in power.
So I hope that that satisfies the question of my
Mike. So I think before, unless there are questions from the floor I wanted to pick on, to
ask something in relation to what Prof Gwen said, which is the suspicion that people
have. I think when we did our own study of previous constitutional attempts to change
the constitution, we noticed that there were, it was always led by the executive
somehow, and it was always tied, or people always thought that it was tied to opening
term limits as a question.
So I wanted to ask the, our speakers, but in particular justice carpet and Za did it, it
seems that the last push for this most recent people's initiative had so much money
being spent on it. There was a wide campaign on social media to actually convince
people to vote Yes on the initiative and on Prof Gwen's thesis, I am, I was seven years
old when PMA was, was was went around.
So memories of Eds are not very clear to me. So the suspicion on my part comes from
somewhere else. So for our speakers is, is there a particular reason why despite so
much money being pumped into this recent change, it seems to have really not taken off
in terms of public support and there doesn't seem to be a constitutional moment for it?
Well, those in the know are of the opinion that this present people's initiative was
designed to knock out Sara to 30, in 2028 to convert the system of government from
presidential to parliamentary because Martin cannot defeat Sara Duterte. And the only
way he can defeat Sara is to convert the system to parliamentary. It's no longer
presidential. And that explains why there's so much money from the congressmen.
Well, it's very clear that the, this present initiative was initiated by the congressmen. I
mean, we all know that. I mean, the evidence is overwhelming and it was even
presented in the Senate. No. And the, the head of PMA admitted that they met in the
office in the residence of Speaker Es. So I think that's very clear already that the
purpose of this PMA is to convert to parliamentary so that the, that could be knocked
out.
And that placed us, me and my friends in a dilemma because if we go against it, then
we are helping Sarah. But I'm saying that's a different issue because we are also
questioning the confidential funds of Sarah in the Supreme Court. In other words, we
are, it's very clear we are not for start, but we just know that this is a scam. This is a
grand deception. I call the Ang Bayan in Li Bino as a gigantic fraud grand deception.
This is of the same magnitude because they're saying it's economic change, but there's
nothing economic there in their proposed change. It's a political change. I mean, it's so
obvious now, but they were so confident that because they had congressmen in every
district is practically the entire Congress that's part of the ruling coalition in, in the
house. They believe that they can get the, the, the required signature per district and
nationwide.
And also when it comes to ratification, they were sure that they could get the, the
approval. And I think they might be right. And the only way really is to stop them is to to
stop them legally. Because as you know, the moment the the, the money moves during
an election, it's easy to, to get the, the number of votes. So this is really a not, this is not
an economic trade.
This is clearly a political amendment. And I think when they realized that the legal
barriers were so high, there's no enabling law. It's a revision, not a, not a amendment.
And there are 13 out of 15 justices were appointed by Duterte. Four out of nine
commissioners or yeah, I think five out of nine Kamala commissioners are Duterte point.
So it'll not even pass the ek. So they shift, I mean, to save face.
They want now an economic provision, but there's really nothing urgent in this economic
provision education. Nobody's demanding that foreign investments be, we are, foreign
investments are needed in education because basic education, elementary to
secondary, that's guaranteed by the government even ter even up to college. So if you
are a foreigner, you invested, you'll be competing with the government advertising. Even
the, the foreign advertisers are not demanding that we open up because they don't have
to come here.
It's all in the internet now. They don't have to come here. So we're really left it public
utility. So what is the value of public utility? I think the value is to correct the damage
that this amended PSA will do. And if you look at Asia in a survey by the senate of 18
countries in Asia, not a single constitution of these countries has constitute, has
limitations on their economic provisions.
They don't have a requirement that it must be 60 40 or 70 30. It's all the legislature. And
because, you know, you cannot put it in the constitution that it has to be 60 40 in
advertising or 70 30 in advertising. That's crazy because you don't have to come here to
advertise. So these economic provisions could shift depending on the global economy.
So give it, give that power to the legislature, but make sub, sub subjected to conditions
that it should not be that easy for them to change. So wonder should be reciprocity.
That's fair. I mean, why would we open up? They don't, if the foreign versus countries of
foreign versus don't open up second, there should be a higher majority. It should not be
just majority of a quorum that's less than 50%. So I have not seen a constitution that
incorporates constitutional limitations on foreign ownership in businesses.
It's always given to the legislature. So I think if we put unless provide bail of subject to
reciprocity to third vote, we are just following the, the majority of the countries because
it's so difficult to change the constitution right now. 37 years have gone and we still
couldn't agree on any amendment, not even the, the pi, the people's initiative and, and
the, my take there is Congress is not in hurry to pass an enabling law because they
don't want a competing body,
They don't want, they've realized that it's dangerous to give it to the people. So I think
we have to look at it from a more global point of view.
I don't see any inherent inherent inimical consequence if we put there unless otherwise
provided by law subject to his pro two thirds vote. That gives us the flexibility because
it's really very difficult to amend the constitution as people don't trust. That's why this,
even this one, the one that Congress will approve, assuming the Senate approves it, it'll
have a hard time and then we will be stuck and we will have to, we will have to, we'll
have to just suffer the fallout.
If you know what Congress did, the amended PSA act is today, transportation, telecom,
many other industries are considered public the following day. When the co when they
approve the law, it's no longer public utility. What, what happened in between? Nothing,
it's the same. There's no substantive circumstance that would say that it should be
public service and not public utility. In fact, there is a law during the American regime
where they changed the term public utility, public service and the Supreme Court said
it's just the same.
So for me, let's just, if we can, it's very, I think it's very difficult to convince the people,
but I think we just have to try it because first of all, we probably should align with the
rest of the world to, to be flexible when it comes to forward investments. But also
because if the Supreme Court says you cannot define the terms in the Constitution,
then we're in a big trouble.
Thank you
Professor Tanja. So to rephrase very quickly, I mean this, where does the, either the
love for the constitution or the distrust of change come from April this month? By this
month the 1987 constitution would've been the longest running Philippine constitution.
So it's a, I think it's a timely question.
So where is the distrust coming from? Basically it's coming from the idea that sure
people can accept money during vo during people's initiative, during PMA signature
campaigns or during elections. But, but because they need the money, but they do
understand that they, they distrust the politicians. And it's also because what one, one
important aspect that we are, we have not yet discussed so much is that in the
Philippines our political parties do not really organize and they're not very programmatic
is among proposals that core.
And every time we have a new president, everybody will go to the party of the president
or become allies and be part of the super majority. And yet they do not vote on
programs. There are no long term programs. The path, if there are long term programs
and we can differentiate one political party from another political party, then changing
certain aspects of the constitution can be actually be part of the advocacy or the
program of one party.
But look, president Notte was championing charter change in when he was president.
But now because of course the, the personal rivalries and the preparations for the next
presidential elections is actually already underway. So they know that there, it's a battle
between political family, extended political families and alliances. So that's also
compounding the problem. But this is basically the, definitely a distrust, but at the same
time also it also underscores the need to actually strengthen information campaigns that
there are certain aspects that actually need to be changed.
But we have to start first with knowing what is in the constitution and in other laws a
consistent manual. SWS and Pulse Asia surveys that one out of four Filipinos, or at
least the respondents in surveys admitted that only one out of four understand what is in
the constitution, of course confident of four, that they know what is in the current
constitution.
So how do we, how do we discuss what are important and how do we actually make
sure that people will be part of the process and they will monitor and they will hold
accountable because weak political parties <inaudible> too much focus on personalities
rather than programs. And our notion of political participation is only during elections.
So how can they begin to to to know what to change. So I think it's distrust and
ignorance.
Thank you sir. Question, please introduce yourself. I think we can accommodate two.
So one from you sir.
Good afternoon is team speakers. My name is Miguel Mazo. So I'm a fourth year
student. I'm a student of PR for political law review and I'm a former student of prma for
constitutional law one. So to preface my question, there's a fear that the constitutional
convention or any of the other forms of amending the constitution will go beyond
amending the economic provisions of the constitution.
Is it possible for Congress itself to enact the law, calling for the creation of the con con
and likewise setting the limits for the possible amendments that the con con can make
only economic provisions in the constitution. Thank you.
Your question is can Congress call for a con con but place conditions and what they can
propose?
Yes.
Well the, the general view is that a Conco has general plenary powers the moment it's
convened, they can do anything they want. They can even establish a monarchy subject
to ratification by the people. So I doubt if the Congress can impose limitations, maybe
one limitations that you cannot run. Member delegates the convention cannot run in the
immediately succeeding election because they created the offices, the delegates.
But to say that they cannot change certain provisions of the existing pro constitution
goes contrary to the concept of AED convention. It is there to revise or amend the entire
constitution. Thank you.
Other speakers, you may have thoughts on the question. Everybody agrees with the
<laugh>. Alright. Does that answer your question? Alright, thank you. We can get the
second one. Yes.
My, I have two questions. First is on the provision of national territory, because I've
noticed that it's uniquely Filipino, we're the only constitution that defines national
territory in the constitution and it poses problems. And I think in a case decided Penn by
the respected justice Cario, it <inaudible>, yes it was harmonized.
But in other constitutions across the world, the national territory is not provided for in the
constitution because there can be a situation, for example, we become a superpower
and then we decide to buy South Korea. But I mean, I'm just arguing, but it's not in the
constitution. The constitution limits what Philippine territory is. My second question
would be because one, one of my professors suggested that we to increase efficiency in
the judiciary, we can outsource the sheriffs, the process services because of, because
in the states that's how it's done.
And since the motivation for changing the constitution is to prompt up, ramp up
economic development, I, I'd like to take that position to, to its extreme. Why don't we
privatize the whole judiciary so that we can have efficiency and so we can attract foreign
businesses to the country. Because one of the factors in the U-P-A-S-E paper is that
corruption in the judiciary as well as the lack of legal remedies for foreign investors, they
it hampers investment.
Alright,
So privatization, but can we get the first question on the
Territory, national
Territory? So the question is
Scrapping the provision on
National territory, what do they think about it? I suppose just you allow something to say.
Okay, the 1935 constitution defined Philippine territory as a territory specified in the treat
treaties 80 98 Treaty of Paris, 1,903 of Washington and the 19 30 19 30 treaty with the
British demarcating, the boundary between British North Borneo and Southern
Philippines. Now there was a great debate in the 19 71 72 constitution whether the
same definition should be carried and they change it.
They, they remove the references to the three treaties. They just said any territory that
belonged to the Philippines by historic title or legal title, no. But looking back we should
have retained it. Why? Because the three treaties define Philippine territory. It's very
specific. What is Philippine territory? Under the 80 98 Treaty of Parises, all islands
falling within the Paris of treaty lines very clear.
And then when the Americans came here and found out that there were many islands
outside the treaty lines, in fact the Spanish car in BU and Ka again the Zulu refuse to
ate because they said we are outside the treaty lines because Americans made a
mistake in making the coordinates of the treaty lines.
So they had to make another treaty, the treaty of Washington of 1900 where it says any
and all islands belonging to the Philippine Archipelago outside the treaty lines are also
seated to the us. So the what is Philippine territory? All islands within the Paris treaty
lines and all islands outside the treaty lines belonging to the Philippine Archipelago. The
question is, what are those islands outside the treaty lines and belonging to the
Philippine Archipelago?
What do you know of any document, any treaty, any map which says these are the
islands of the Philippine archipelago lying outside the treaty lines.
Nobody <laugh>. There is one map, the 1875 Alder Archipelago Filipino. It includes
Pza, it includes Iba, it includes almost the entire SPR part of Philippine territory. And in
the East Las Palmas case between the US and Netherlands over is Palmas. In Auo the
US submitted a memorandum and submitted the map.
The US said this is the map of Philippine territory during the Spanish regime and during
the American regime and in it includes is palm at, and if we look at the other side of the
map, it includes Scarborough, <inaudible> and the so, but that is lost. Nobody knows
that anymore in the Philippines when if you go to YouTube and there is and really
saying let's not talk about the spread Li and Scarborough because that's outside the
treaty lines, that's not part of Philippine territory.
You have an article of Es Mendoza saying that for centuries since the our existence,
even during the Spanish times, we never considered scarboro in the spreads as part of
Philippines.
And Father Berna says in his book, Philippine territory are the territories in within the
treaty lines we have forgotten. So we, it's easy to forget. But if those treaties are still
there in the territory in the 72 constitution and in the 87 constitution, probably we
would've remembered. So that is the problem now because even China is coating and
really coating Alito and Berna, that Philippine territory is limited to the islands within the
treaty lines and Scarborough and Alis are outside and therefore we cannot claim
Scarborough and the saliva.
But it has always been part of Philippine territory. Under is 7 34 Ade map, the 1808
Carta al, the Arch Capal Filipino. And finally the, the holy grail of our map, the TCT
Torrance title of the Philippines is the 1875 Carta Al. But we don't have a copy of that,
we don't have a regional of that.
So I think it makes sense that we put it because of our unique circumstance. There's a
very strong doctrine in international law. Yout <inaudible> is juris as you are, as you
possess under law stay there. If you look at the map of Africa and South America, their
boundary lines are very straight, arbitrarily drawn. The same tribe may be on both sides
of the boundary and there will be perpetual wars because one state will always try to
claim the, the tribes on the other side of the boundary.
So international developed this principle ut po Juris, as you possess under the law, stay
there. The boundaries established by the colonial powers for their colonies as they
emerge, as independence shall be respected by the world, by all states, they're
sacrosanct to preserve peace and stability. So this applies to Africa, south America and
Asia and what are the boundaries of the Philippines established by colonial powers 80
98 treaty between Spain and the US 1900 Treaty of Washington between Spain and the
US and the 1930 boundary with the British established by the US and uk.
The world is bound by this and this is the strongest argument we have against China.
So it's very important to put it as far as I know as far we should put it there because
people forget and we forgot already about the Treaty of Washington. It's not taught in
our schools. Thank you.
Thank you very much. Justice at Univer Cruz. Yes. Can
I say,
Okay, so in article one of our constitution, which defines the national territory is really an
adoption of the Archipelagic doctrine. You know, because we have 7,100 islands and
still counting, we don't really know what we have, what islands we have within, within
our territory. So it's, it's good to define our national territory. The Archic doctrine actually
states that all the lands and all the waters in and around and connecting its island is one
integrated territory of the Philippines.
So islands and waters are considered one in an integral part. Anything that is you, you
know, the baseline theory. So you draw a straight line from the outermost islands
around the Philippines and everything there within the baseline is Philippine territory.
But it does not stop very, does not limit the territory of the Philippines.
Anything that comes in the control, no in jurisdiction of the Philippines is territory of the
Philippines. So it may not be within that, those baselines, no, but once we control and
we exercise sovereign over an island or a territory, that is our territory. So it's important
to have this provision in the constitution.
Yeah, thank you. Let me, because we are running out of time, let me appropriate your
second question and transform it to an end question to this panel. As an institution I
understand that's an institutional concern of the judiciary privatization of some of the
services. So, so the question is this as an end question, we, I noted earlier that attorney
Vera Cruz mentioned institutional interests at play in all these modes of amending the
constitution. Do you think it's a legitimate aspect of constitutional change that
institutional concerns, let's say of the executive of the legislative are also competing with
the concerns of the citizens in that process?
And if you do think that it's, it's legitimate, it can very well compete in that realm of
proposals, your institutional concerns of the judiciary, for example, how do we address
the assymetry between the, someone exerting institutional concern using state power
versus state citizen concerns that may not filter into that change. And I, I think we can
start with Professor Gwen down to Justice Garby.
Well, as we mentioned earlier, if we, if you recall the presentations earlier, particularly of
Dr. Atienza on what is a constitution, it is our people's document and primarily it sets out
the structure of government and the relationship between that government and its, and
its citizens. So I think in terms of institutional concerns, yes that is something that is
certainly significant when we discuss charter change.
But how to address the imbalance in terms of the interest of the people and the power
that may be exerted if it's institutional changes and therefore institutional power. I think
the, the remedy that the Constitution itself provides is with respect to the modalities for
changing it. So that if they are observed, then the idea is one, as a first step there is
proposing amendments.
And then number two, ultimately it'll be subjected to ratification. But I think there has to
be care as justice Cario pointed out earlier, money will flow depending on what those
changes are.
So I suppose the, the, the highest safeguard against the adverse influence of corruption
or money would be the people themselves. So ultimately we as Justice Cario said, no,
whatever it is that animates us, whether it's suspicion, whether it's ignorance, it's, it's
very important that that exercise, that ratification is one that is safeguarded, but at the
same time enlivened.
So for example, in 1987 constitution, if you look at it, anyone consider I votes in 1987
constitutional ratification and how that might affect our views on changing it. When you
compare it to par, the we've never elected on a majority, it's always polarity and any
elected official has has received no considering the increase in population, if I'm not
mistaken, almost, almost 17 million in ratification now 1987 constitution, not very far
from the plurality received by a number of our national officials.
Well, no amount of law, no amount of rule or regulation will really be meaningful except
that we should retain a, at least a modicum of trust in our people and in our officials.
Thank you sir.
Yeah, in terms of, of course constitutions and constitutional change, of course it's a
document that's supposed to
Spell out the relationship between the people and the, in the state institutions, the
responsibilities of each one. But at the same time, constitutions matter depending on
whether the political elites, other elites and the people know and respect the
constitution. So in the process, if no matter how good the provisions are or no matter
how bad, if there is no practice, no respect, no there's distrust in all these provisions,
then we will not follow the constitution.
So I think the important, we start first with knowing the Constitution, people knowing the
Constitution, people demanding accountability and at the same time also knowing when
in what are the actual institutions and what are the personal interests because
sometimes the interests being forwarded are not the interests of an institution or a
branch of government or an agency, but actually who, whoever is occupying the seat of
power or the head of an institution.
So people should be able to, to actually determine when is it an institutional or group
interest or when is it a personal interest. Thank you.
Okay, thank
You very much. So that ends our panel discussion. Let me just read the certificate of
appreciation for our speakers. So we award the certificate or present the certificate to
Justice. Antonio Tio, Dr. Maria El Atienza, attorney Vera Cruz, professor Gwen DeVera
and Professor Tame. Further valuable input today as speaker and panelist at the forum,
constitutional change means matter. Motives held today at the Malcolm Theater, UPD,
deman Cassen City, signed myself and Dean <inaudible>.
Thank you very much to our speaker.
Thank you.
If we could just have a photo with the speakers.
Thank you
Sir. We will.
Thank you. Let's take that photo
Ready?
1, 2, 3, 1, 2, 1.
Thank you very much
Once again. We deeply appreciate and we are deeply grateful for the presence of our
speakers and panelists and of course to our students who were not compelled at all to
attend to this forum, right? So by the way, we are planning to have a part two of this
forum and we hope to have you again at such part two this time. In the part two, we plan
to invite government officials, particularly representatives from the House of
Representatives as well as the House of Senate.
And with that, let's all take our much deserved lunch break. Thank you very much.