In the news today is the COMELEC’s decision to allow former President Joseph Estrada to seek re-election this coming May 2010 election, aiming to regain the highest seat in the land, which he had to vacate under duress as a repercussion of the EDSA II revolution in January of 2001.

Common opinion --- and that of public knowledge --- initially believed him to be patently ineligible to run once again for the highest position due to the highly ubiquitous constitutional prohibition for elected Presidents to remain in office after serving one full-term of six years.
That’s how we understood it and were aware of especially that such specific constitutional ban was devised and given effect in order that the dynastic rule of former President Ferdinand E. Marcos, one that had thrown the entire nation in great despair and disarray, would not materialize ever again.

But upon closer examination, Section 4 of Article VII of the 1987 Philippine Constitution specifies:

The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

Note that the specific prohibition is for a sitting President to seek “re-election” where upon swift interpretation of the terminology, it would be merely be a bar for an incumbent President to seek re-election for another six-year term immediately right after his or her term, and that he or she remains not absolutely precluded from seeking the office once again, for he or she may still do so while not anymore an incumbent (such as the present case of former President Estrada), probably after six years from the last day of his/her service as the highest executive of the land, granting that the president after him/her serves the full term.

Now, it merely boils down to interpretation of terminology, and indeed in our election culture and tradition, the term “re-elect” most often refers to candidates who are running as incumbents, such as those we often see on campaign posters that states boldly “Re-elect Mayor This and That”, “Re-elect Councilor this and that”, etc..

Therefore, despite that the intention of the aforementioned constitutional prohibition, which is to entirely dispel dynastic rule at the highest order, there would still be that one remaining method left in which a sitting Presidents may return to office, after six years of another presidency (which could be by a puppet candidate he or she had merely instated, allowed to win using the ever-vaunted government machinery).

At a young age of 40, any natural-born Filipino citizen, able to read and write and a registered voter can vie for the highest position, and if he or she wins, he or she could still have many runs at it and serve more than six years in office, despite the constitutional bar of serving two successive terms. In this manner, presidential dynastic rule may still not be entirely prevented.

This one method in fact had been often used by many legislators who had already stretched-out their three-term limits, by having close relatives hold positions for them for one term, in order to return after and start a fresh run on the three-term allowance. For one, this kind of situation could easily lead to circumvention of the law.

I wonder if upon closer examination, where we could be allowed to examine the records of interpolations, the transcripts of deliberation when Section 4 was especially debated upon by the framers of the 1987 Constitution and then taking into consideration the very grave political trauma this nation had endured under a tumultuous and dark 20-year reign of one former President, we could find a deviating idea away from the COMELEC decision discussed herein.

Have the framers of the 1987 Constitution intended it that any President may only sit and serve one single term and then absolutely none after that?
Or otherwise.

This new charter change hullabaloo is proving to be a fiercer attempt at amending our constitution and at creating such a political firestorm that now it's even seriously threatening the economy as local stocks tumbled down on jitters created by all these happenstances.

I was watching Cable TV several days ago when I chanced upon a live coverage of the Congress in session, and it was this very issue that they were so absorbed in, particularly about House Resolution No. 1109, a bill intending to amend or revised the 1987 Philippine Constitution through the formation of a constituent assembly, composed of the present members of the House of Congress.

What is being contemplated is the composition of a constituent assembly --- consisting of the very members of the Congress itself --- which should be approved by at least 2/3 of the members of the Congress, voting as a whole, where even when every senator would not concur to this particular proposal, enough number of votes may still allow such plan to amend the constitution coming from among the members of the Lower House.

Currently, there are 242 members of the Lower House and 23 members of the Senate, for a total of 265 individuals all in all. Under the proposed bill, all members of Congress ---- that is, all congressmen and senators --- would sit in session together one day (which is being planned just before the President Gloria Macapagal-Arroyo would give her SONA on July 27) and vote on whether or not to proceed with the plan to form a constituent assembly for the purpose of amending or revising the constitution.

The magic number is 177, which is two-thirds of 265. It doesn’t matter if all senators would vote in the negative---as it is presumed that most of them would have their own presidential ambitions thus making them most inclined to thwart the bill as much as possible.

If enough votes are gathered, a constitutional assembly would be convened, and such body would compose the enumeration of proposed changes. After such procedure, it would be submitted for approval in a plebiscite. (Section 1 (2), Article XVII or the 1987 Philippine Constitution)

Or, there is a more direct manner by which Congress could amend or revise our charter, by directly enacting in a bill, for changes in the provision of the constitution, and the Congress as a whole would vote for its approval, with a minimum of 2/3 votes. Still, the proposals would still have to go through the litmus of a plebiscite. (Section 1 (2), Article XVII of the 1987 Philippine Constitution)

See the full constitutional portion on amendments and revisions:

ARTICLE XVII, AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein.

No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

Imagine the circuitous process and imagine the whole economic cost. Its enormous and besides we are not even speaking about the social and political cost that it might entail, at this point, when the presidential elections is just around the corner, its unimaginable.

If these congressmen only realize what kind of toy they are toying with right now, with this so vicious game, they would even be thinking about it in the first place, the amount of time and its political and economic consequences may just tear this nation into ruins once again. They should stop their being fancy about the constitution. They should seek another more convenient time, like perhaps after the 2010 presidential elections.

And besides, the constitutional provisions intended for making changes in our constitution is so general and highly-unrefined, where implementing laws or even mere guidelines have not yet been instituted.

A 2006 attempt at people’s initiative was struck down by the Supreme Court due to the lack of implementing laws that the Congress should have been dutiful enough to enact so many years ago---but it didn’t.

Chief Justice Reynato S. Puno speaks his mind today without any let-up or anything to hold back, concise, clear and direct.

In fact, he hits directly to the bone of our national sickness by pointing at the oligarchy in our midst as the main, if not the primary culprit, as he launched today the upstart Moral Force Movement.

“The Philippines remain in the control of the oligarchs because the government is beholden to them”, Chief Justice Puno says, headlining the country’s most read newspaper.

Nothing should be truer than this. You could say, it is like seeing the sun in broad daylight, and Justice Puno has just to point that out clearly.

Puno enumerates the main problems of our nation today as “the lack of morality, the weakness of our ethics, the problem of inequitable distribution of wealth, the problem of poverty and the problem of peace and order.” And that the wealth of the nation is merely held by the rich few while the multitudes suffer.

The honorable Chief Justice shows why he is so incredibly different from his predecessor, and that is such a good thing for us. He becomes concern with morality and social imbalance and that could provide as a guiding post within the judiciary, becoming a role model to a very critical sector of our country, the men of laws.

I must agree to all his concerns and to supplement his views, I all see how vital is his role now, where the judiciary and the legal people could be imbibe to take a more participative role in nation-building, becoming agent of change and progress themselves. For all we know, lawyers and judges are certainly a congregation of sharp-minded and highly-capable individuals and our nation needs them, the people could look upto to them to keep in touch with the nation’s ails and fallings. A strong and responsible judiciary could eventually initiate a change that could spread easily towards other sectors of our society, for a nation to be strong and progressive; its laws should be strong and forceful, not lain within the hands of mischief and dire intentions, such as self-interest and nonchalance to the well-being of the public.

I am a bit concern if Chief Justice Puno should be a step beyond the realms of his public duty, for being so patently political despite being the highest ranking official of the judiciary, yet that could become lesser of our concern for a time that the Chief Justice shows extreme concern for the suffering of the people is so rare, and may not come again.

There are many talks that he might be running for the highest position of the land, and nothing should be improper in that. He is described in his Supreme Court official website profile as a man of prose and religion. I also think he is also a man of great concern to the plight of the Filipino people.

In a very fluid geographical scenario of our global condition today,our lawmakers have found the time to re-examine and thereon redefine our national boundaries and re-establish firmly the full and certain content of our territory, which consist not merely that part of the earth’s surface but also the waters underneath it, the seas beyond the coastlines at 200 miles, the air above and even the caverns underneath the sea.

Article I of our Constitution, relating on National Territory states:

"The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines."

The focal point in this new baseline bill is the Philippine claim over the Kayalaan Islands or that part of the Spratly Islands being occupied by the Philippines. House Bill 3216 redefining our boundaries was put into motion as early as January of last year but somehow, it had encountered major obstructions especially from the Department of Foreign Affairs (DFA) which had advised the Lower House to go lightly in our claim to the whole of Spratley Islands as control and patrimony over it is still being hotly disputed by our country, Vietnam and China.

Obviously, the DFA had foreseen possible diplomatic troubles with China and Vietnam if the bill had pushed through in its original form or wordings. Now finally, the bicameral committee had an approved version where the Spratly Islands are merely referred to as "a regime of islands” belonging to the Philippines.
Clearly enough, it’s a backtracking on our part as it appears to be that our government is overtly resisting conflict with China, which would not be the military kind as this would not be likely to happen, but mostly on the economic and diplomatic side. Being the fastest growing economy today, the Philippines could not afford to disengage from China and that means we have to soften our stand on Spratlys. It’s cruel to be small. We could not be so direct even with our own territorial concern.

In actuality, the Kalayaan Group of islands lays clearly within the 200 Exclusive Economic Zone (EEZ) as defined by the United Nation Convention on the Law of the Sea through the Archipelagic Doctrine first championed by our own former Vice-President Arturo T. Tolentino, where our territory spans throughout a line drawn from the outermost point of our territory, and everything within this line, and 200 miles beyond it belongs to the Philippines.

And the Kalayaan Islands, which was first discovered by Admiral Tomas Cloma sometime in the 1950’s and named it “Freedomland”, lays within 200 miles off the farthest western coast of Palawan. The only problem is if a group of small islands fall within the items enumerated as possession in the definition of Exclusive economic Zone, which mostly pertains to marine resources.

However, under Terra Nullus legal doctrine, a state could claim a discovered land when it was not owned by any country previous to the discovery and that this should be the strongest basis for the Philippines' claim. China’s claim over the Spratlys is singularly anchored on their proposition that since the Spratly's is located in the body of water generally known as the South China Sea, then therefore it belongs to them. This could be faulty when in fact the term South China Sea does not necessarily mean that it was a sea belonging to China but it was just named that way by Portugese sea navigators in the past as a point of reference for their sea travels. The islands should be “terra nullus” or “land belonging to no one” and since we were the first to have sighted it, it should belong to us unconditionally and not merely as “a regime of islands” belonging to the Philippines.

As I was reading the news today, I was full of bewilderment at the latest incident in Texas where 400 young girls were freed yesterday by police authorities out of a polygamists compound being operated by a religious sect known as the Fundamental Church of Christ of Latter-Day Saints. Allegedly, the young girls were paired with old men in polygamous union, often by force and coercion or moral coercion, in accordance with the sect’s religious belief and practice.

It is of note that the above-mentioned sect is a breakaway cluster from the main Mormon religion formally known as the Church of the Latter-Day Saints, which had long ago negated on the practice of multiple marriages as a religious practice, where the U.S. Supreme Court had time and again decided against the practice of polygamy in America.

A landmark case on polygamy, one that is still being referred today as a leading case, is the 1879 U.S. Supreme Court decision entitled Reynolds v. United States where it was cited prominently how polygamy was (is) an “odious” conduct and ultimately contrary to “historic American values and culture”, even “from the beginning of time”, declaring farther how “marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law”

Yet, it is still an open secret in America, especially in locations within Utah and Arizona states, that polygamy have and are still being practiced and once in a while, such societal American phenomenon comes out in the open, like the Waco Incident of 1993 and now with this very recent detection of a polygamists compound in San Angelo, Texas.

Of immense interest now is the legal concept of freedom of religion, as to whether or not one’s belief and conviction allows one to practice his or her religion unabated and unhindered by any governmental restriction, as a matter of constitutional right?

Our constitution guarantees freedom of religion where the Bill of Rights, under Article III, Section 5 of the 1987 Constitution of the Philippines, states that:

“No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exervise and enjoyment of religious profession and whoship, without discrimniation or preference, shall forever be allowed. No religious test shall be requires for the exercise of civil or political rights.”

While in America, the First Amendment similarly proclaims:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the end, “freedom of religion” in our territory and in America, where our jurisdiction had mostly structured the form and content of our laws, as well as government system from, remains one constitutional right that is held with enormous weight and sanctity, just like “freedom of expression” that the law and the judiciary often bestows attention to it, resolving questions involving such question of religion and practice in the most prolific manner and in often public spectacle, for the community to relish and appreciate. (Read this very interesting case on marriage and religion - Estrada vs. Escritor.)

Yet, the point of final determination as to the question of ‘freedom of religion’ remains in the one singular rule that proclaims unambiguously how the right to belief is not tantamount to the right to practice, where in the 1940 U.S. Supreme Court case Cantwell v. Connecticut (310 U.S. 296), applying the Belief-Conduct Distinction, it was deemed that:

“The Free Exercise Clause ''embraces two concepts-- freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.'' "

Similarly in our local jurisdiction, it is dogmatic that an individual has absolute freedom to believe in any form of religious belief, ‘he may even believe in the devil and worship Satan’, but once he or she puts this believe into action or outward conduct, then the State begins to interfere in the form of regulation and prohibition where in the present issue, as to whether or not freedom of religion allows one to establish highly anomalous and very scandalous polygamy compound such as the one in San Angelo, Texas where girls as young as 12 years old are compelled to enter marriages with much older men, and where there are persistent rumors of rape and physical harm.

Of course, American laws squirm at and reject polygamous union that despite that the leaders and members of the Fundamental Church of Jesus Christ of Latter-Day Saints believe in such, the law does not allow them and they have in fact violated pertinent laws, criminal laws for that matter, and their ‘freedom of religion’ would in no way come in towards their protection or the justification of their conduct.

In the Philippines, jailed individuals get to become senators…or would become congressmen for that matter. But in America, a senator was actually arrested, handcuffed and according to Idaho Senator Larry Craig, he "was dragged down" by authorities for suspicion of undertaking lewd conduct in a Minneapolis airport restroom.

I've already seen boxing and barking legislators of the Taiwanese kind on TV, or a nude woman lawmaker somewhere in Italy---but in America, they have a senator that had been arrested and handcuffed for a misdemeanor just like any other citizen who had committed or under suspicion of having committed a malefaction.

In the Philippines, the whole Senate would be up in arms in defense of their comrade, invoking immunity from arrest, whether right or wrong. Nothing happens like that in America. In the Philippines, lawmakers are even trying to free a detained elect-senator. But in America, nothing sort of that happens for they even get arrested in the first place. In the Philippines, only opposition leaning congressman or congresswoman get arrested in the most upsetting manner. In America, nothing like that happens. They get arrested notwithstanding their political leaning. Nobody says "You are under arrest! By the way? Are you a Democrat or a Republican?"
Enough of that "walang ganyan sa America" thing going on in the above-written paragraph.

(more...)

In my years as a law student, way way back into the nineties, I once imagined in my head a situation wherein a witness to a case failed to show up before the court that summoned him and got himself arrested as a result of this. The judge bellowed at him in a thundering voice about why he failed to respond to his order in the most convenient way, and thereby delaying the case that was at hand.

The man who failed to respond to the subpoena answered, “Your honor, I lived about 400 miles from the city. I couldn’t even afford to commute to the barrio market, how much more could I afford to come to the city?” And so the judge scratched his head and thought that the man got a point.

So perhaps nowadays, the law already provides that any person ordered to become a witness and who resides at least 100 kilometers away from the case venue shall not be punished with contempt or be arrested for failing to appear at the scheduled time and place for him or her to testify.

Section 10 of Rule 21 of the Revised Rules of Court states:

Exceptions. - The provisions of Sections 8 (Compelling attendance) and 9 (Contempt) shall not apply to a witness who resides more than one hundred (100) kilometers from his place of residence to the place where he is to testify by the ordinary course of travel…

So if by any chance you are called to become a witness to a particular case, remember that one could not be held in contempt or be arrested for failing to appear in court when one lives at least 100 kilometers from the case venue. In fact, the court directs that any witness who lives in a relatively distant area from the court would be given kilometrage fees or allowance for travel. The last time I read it was pegged at 100 pesos. But what does 100 pesos afford now? Could one travel from Quiapo to Makati and then back to Quiapo at a 100 pesos travel allowance? It would be so tight as an amount.

Now if the kilometrage fees have already been given, the witness would not anymore be in a position to excuse himself or herself from attending court hearings in order to testify and may already be held for contempt upon such failure.

The above discussion on the compulsion and punishment for non-response to a court order to become witness to a case is in consonance with the general provision on subpoenas where Section 1 of Rule 21 of the Revised Rules of Court provides:

Subpoena and subpoena duces tecum. - Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.