1

August
The President
August 18, 2014
What does it mean when we elect a person
president? Similarly, what does it mean when a
person wants to be reelected president?
We know him only as president but actually he holds
two powerful positions blended into one. The
president of the Philippines is both chief executive
and head of state.
As chief executive, he is the embodiment of all
executive power. In the language of the Supreme
Court, the president is the Executive of the
Government of the Philippines, and no other. The
heads of the executive departments occupy political
positions and hold office in an advisory capacity and,
in the language of Thomas Jefferson should be of the
Presidents bosom confidence, and, in the language
of Attorney General Cushing, are subject to the
direction of the President.
As head of state, the president performs functions
similar to those of the queen of England or of a
president in a parliamentary system. What Clinton
Rossiter said about the American president in relation
to his country can be said about the Philippine
president in relation to his: He remains today, as he
has always been, the ceremonial head of the
government of the United States, and he must take
part with real or apparent enthusiasm in a range of
activities that would keep him running and posing
from sunrise to bedtime if he were not protected by a
cold-blooded staff. Some of these activities are
solemn or even priestly in nature; others, through no
fault of his own, are flirtations with vulgarity. The long
catalogue of public duties that the Queen discharges
in England, the President of the Republic in France,
and the Governor-General in Canada, is the
Presidents responsibility in this country, and the
catalogue is even longer because he is not a king, or
even the agent of one, and is therefore expected to
go through some rather undignified paces by a people
who think of him as a combination of scoutmaster,
Delphic oracle, hero of the silver screen, and father of
the multitudes.
Article VI, Section 1 of the Philippine Constitution
says that executive power shall be vested in the
president. Subsequent provisions, however,
enumerate specific powers. Because of this, the
question has arisen whether the president may
exercise powers that are not specifically mentioned.
Tradition recognizes that the powers of the president
are more than the sum of the enumerated executive
powers. This tradition is founded on another provision
of the Constitution which says that the president shall
ensure that the laws be faithfully executed. This
means that the power of the president is not limited
only to the enforcement of acts of Congress according
to their express terms. The power is broader than that
and includes the rights and obligations growing out of
the Constitution itself, our international relations, and
all the protection implied by the nature of the
government under the Constitution. The Philippine
Supreme Court also appealed to this provision when
the power of President Cory Aquino to bar the return
of President Ferdinand Marcos from his exile in
Hawaii was challenged. There was no specific law
empowering her to bar the return of a citizen. But the
Court said that the president possessed unstated
residual powers which include the duty of
government to serve and protect the people as well
as to see to the maintenance of peace and order, the
protection of life, liberty and property, and the
promotion of the general welfare.
As can readily be seen, this broad, general
enumeration of presidential powers can be dangerous
in the hands of an unscrupulous person or one who is
hungry for power.
The qualifications of one who wishes to be president
are fairly simple. He or she must be
(1) a natural born citizen of the Philippines, that is,
one who has not obtained citizenship by
naturalization; (2) a registered voter; (3) able to read
and write; (4) at least 40 years of age on the day of
election for president; and (5) a resident of the
Philippines for at least 10 years immediately
preceding such election; that is, one whose
permanent home has been the Philippines.
The sparseness of these requirements is an indication
that, to a great extent, the choice of a president is left
to the wisdom of the voters who elect him or her. In
fact, voters would not normally inquire into the
constitutional qualifications but would look rather into
his or her other qualities.
The president is elected by direct vote, by the people
nationwide. The fact that the president is elected
directly by the people gives him or her a sense of
power. In order to ensure that the president will use
executive power for the good of the people and not in
preparation for reelection, the reelection of a
president is absolutely prohibited.
The prohibition on reelection was not in the 1935
Constitution nor in the 1973 Constitution. This
prohibition is one of the major innovations in the
current Constitution. It was supported by President
Cory Aquino herself, whose son now wants to break
away from it so he can stay in power. Unfortunately
for him, to get what he wants, the Constitution has to
be amended. That is not easily done. Let us see how
President Aquino the son hopes to overcome that
obstacle when even his party mates are not willing to
support his adventure.


2

200 years of reinvigorated
life
August 11,2014
On Aug. 14, the Jesuits celebrate the 200th
anniversary of the formal and universal restoration of
the Jesuit Order (Order/Society) after being
suppressed by the 1773 papal brief Dominus ac
Redemptor.
After having enjoyed the highest favor for two
centuries among kings and prelates, the Jesuits
suddenly became the object of intense hostility during
the suppression. About the suppression, St.
Alphonsus Ligouri is quoted as saying: Poor Pope!
What could he do in the circumstances in which he
was placed, with all the Sovereigns conspiring to
demand this Suppression? As for ourselves, we must
keep silence, respect the secret judgment of God, and
hold ourselves in peace.
As many Filipinos know, the Jesuits were also
expelled at that time from the Philippines. The
Spanish Jesuits working in the Philippines were sent
into exile aboard ships and would not be able to come
back until 1859, after almost 100 years. Upon their
return, among the first work they were asked to do by
the goverrnment was to establish the Ateneo de
Manila.
Paradoxically, however, it can be said that the same
papal brief which suppressed the Society at the same
time allowed it to live. This is so because, in order for
the papal decree of suppression to take effect, it had
to be promulgated by the local sovereign. The
Russian empress then, who valued among other
things the education work of the Jesuits, did not
promulgate the decree of suppression in Russia. The
empress seemed to have an understanding with the
pope who allowed her to be effectively a surrogate
mother to dispersed children. Thus in Russia the
Jesuits continued to exist with the reserved and
verbal approval of the same pontiff who had
suppressed them. And there the Society continued to
attract and accept new members from other parts of
the world.
In this situation, from the time of the suppression,
there continued to exist both Jesuits and ex-Jesuits.
The ex-Jesuits were those who had become diocesan
priests allowed to work in their former parishes, or to
continue to teach in the colleges where they taught
before the suppression. At the same time, together
with a large majority of ex-Jesuits, there existed a
minority of about 200 who remained Jesuits and
maintained themselves as such in White Russia. This
reserve force preserved the essentials of the Ignatian
spirit and introduced the devotion to the Sacred Heart,
and they even increased in number since they
managed to attract candidates from outside of Russia.
The existence of this group facilitated the full
restoration of the Order.
It was out of this group that the provinces of England,
the United States, Switzerland and Parmaand from
1804, officially the two in Sicilywere formed. Before
the bull of reestablishment of 1814, there were
provinces and novitiates in these countries.
The reestablishment of the Society was a complex
accomplishment, if one considers the coexistence of
Jesuits and non-Jesuits in a Society which, it could be
said, at the same time did and did not exist. The
restoration, however, of the Jesuit Order was not like
the restoration of a damaged building, which involves
replacement of parts. Rather it consisted of
supplementing or reenforcing the worn-out stones of
the building.
What increased the complexity and at the same time
facilitated the restoration of the Order was the fact
that, while it was suppressed by the Pontiff himself, it
was at allowed by him to continue in a determined
region. Thus the restoration was not the
reconstruction of a destroyed building, nor the repair
of a deteriorated edifice, but rather the reaffirmation of
the preserved model, assuring it of continued validity.
The Society was not an institution ravaged by internal
wear and tear but by external forces. It remained
officially suppressed in the Church, because of the
pressure of political forces, but it continued to exist
tolerated at first (and later reaffirmed) in some
countries.
The period during which the Jesuit Order underwent
the process of suppression and later restoration
consisted of tumultuous years. The suppression took
place during the period of the French Revolution and
the Napoleonic adventures. In the macrohistory of the
great events of universal history falls the microhistory
of the Order and of small groups of Jesuits and ex-
Jesuits. The role of individual persons and small
groups of persons was important. Think of the role of
the 10 Jesuits who gathered in Stonyhurst in Great
Britain. Or of the 20 or so Jesuits who were in
Maryland while the independence of the United states
was taking shape. Or the 40 padres de la fe (Jesuits
in desire) in the empire of Napoleon? Or even the
Spanish Jesuits, Hispano-American and Portuguese,
who lived poorly in a chaotic Catholic Italy occupied
by the French. They maintained fidelity to old
companions, to the conservation of old ideals, which
remained more vivid when they seemed unattainable.
They were the mustard seed that grew into a sturdy
tree.
The pontifical restoration of the Jesuits was solemized
in the bull Solicitudo omnium ecclesiarum of Aug. 8,
1814. A pope suppressed the Society and another
pope restored it. The language of the bull of
restoration is moderate, but there is in it a tone of
rectification and reparation, of recognition of the
injustice committed, and of confession of the
innocence of the Jesuits.

3

The least dangerous
branch
July 21, 2014

Should President Aquinos recent tirades against the
Supreme Court have given the people serious cause
for concern? I guess the easy answer to this question
is the result of the more recent public opinion survey
which showed the Presidents popularity plunging to
its lowest. But the more technical answer to the
question is that our constitutional structure can absorb
explosions like that of the Presidents. Even under the
most serious assault on the system, namely the
Marcos martial law declaration, the bare bones of the
constitutional structure survived and the flag of
democracy, though tattered, continued to flutter in the
air. What allowed President Marcos to succeed as far
as he did was the fact that he managed to take
control of the military. When he lost that control he
lost everything. President Aquino has not made any
allusion to the military.
In fact, there was nothing like the Marcos explosion in
the recent outburst of the current President. The
Supreme Court caught his hand in the cookie jar and
told him to stop. Arguing that the cookies were not for
him but for his bosses, the President launched
strong words against the Supreme Court, but finally
cooled down and did the democratic thing to do: He
filed a motion for reconsideration in the hope that the
Supreme Court would finally see the light, that is, his
light. That is where things are at the moment.
In the title to this piece I referred to the Supreme
Court as the least dangerous branch of the
government. It neither has the arms like what the
President has, nor the money under the control of
Congress. It only has the Constitution for its shield
and armory.
There has been no hint at all that there might be a
military threat against the members of the Court.
President Aquino himself has not really threatened
the Court with anything; he has only strongly urged
the Court to see things his way so they can work
together in the service of the bosses. And the
President has not added, Or else!
Rightly, the Courts reply has only been dead silence.
Meanwhile we wait for the resolution of the motion for
reconsideration. When it comes, will it be something
that can fan to flame whatever embers might still be
burning? My sense is that things are settling down.
But what of Congress, the other more dangerous
branch? It, too, or some of its elements, claim to be
supreme. But its supremacy is only over the public
purse. No money shall be taken out of the Treasury
except in virtue of an appropriation made by law. In
fact, this is the root of the current controversy. What
the DAP (Disbursement Acceleration Program)
decision in essence said was that money had been
moved not according to the disposition of the
Supreme Congress.
Some congressional voices, in defense of its own law
which has been declared unconstitutional, are being
heard to threaten punishing the Court where it can
hurt most, in the money allocated for the Court.
Should this be a cause for concern? I do not believe
so. There are enough level-headed members of
Congress who will refuse to maim the Supreme Court.
In fact, the Constitution itself has a monetary
protection for the Court that can assure it of enough
money at least for essential operation year after year.
Article VIII, Section 3 says: The Judiciary shall enjoy
fiscal autonomy. Appropriations for the Judiciary may
not be reduced by the legislature below the amount
appropriated for the previous year and, after approval,
shall be automatically and regularly released. And
the beautiful thing about this is that it is the Supreme
Court that will decide what else fiscal autonomy
means beyond the assurance of continued annual
support.
Incidentally, does it matter that a good number of the
membership of the Court, including Chief Justice
Maria Lourdes Sereno, are appointees of the current
President? (He also should appoint another one
soon.) I do not believe this should matter. In the DAP
case, the justices voted unanimously against the side
of the President. Once appointed, the justices are
secure in their position and they should have no
reason for currying favor with the powers that be.
They also have their honor and reputation to protect.

















4

Executive immunity
July 14, 2014
There is no provision in the Constitution clothing the
president with immunity from suit. The 1973
Constitution had a specific provision guaranteeing the
presidents immunity but the 1987 Constitution did not
preserve this provision.
Nevertheless, executive immunity dates back to the
cases of governor generals. The subsistence of this
doctrine under the 1987 Constitution was confirmed in
Soliven vs Judge Makasiar which assumed that
indeed the president, Cory Aquino in this case, enjoys
immunity. The Court said: The rationale for the grant
to the President of the privilege of immunity from suit
is to assure the exercise of Presidential duties and
functions free from any hindrance or distraction,
considering that being the Chief Executive of the
Government is a job that, aside from requiring all of
the office-holders time, also demands undivided
attention. But this privilege of immunity from suit,
pertains to the President by virtue of the office and
may be invoked only by the holder of the office; not by
any other person in the Presidents behalf. Thus, an
accused in a criminal case in which the President is
complainant cannot raise the presidential privilege as
a defense to prevent the case from proceeding
against such accused.
Does executive immunity continue even after the
president leaves office? This came up in the case of
Estrada vs Desierto. Estrada, prosecuted for plunder
after having left the presidency, pleaded presidential
immunity from suit as his defense. Moreover, he
claimed that he could not be sued before the
impeachment could be terminated. On this matter the
Court said: We now come to the scope of immunity
that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada
are criminal in character. They involve plunder,
bribery and graft and corruption. By no stretch of the
imagination can these crimes, especially plunder
which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting President.
Petitioner cannot cite any decision of this Court
licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability.
It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who
acts illegally is not acting as such but stands in the
same footing as any other trespasser.
Indeed, a critical reading of current literature on
executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the
search for truth or impairs the vindication of a right. In
the 1974 case of US vs Nixon, US President Richard
Nixon, a sitting president, was subpoenaed to
produce certain recordings and documents relating to
his conversations with aides and advisers. Seven
advisers of President Nixons associates were facing
charges of conspiracy to obstruct justice. President
Nixon himself was named as an unindicted
coconspirator. President Nixon moved to quash the
subpoena on the grounds, among others, that the
president was not subject to judicial process, and that
he should first be impeached and removed from office
before he could be made amenable to judicial
proceedings. The claim was rejected by the US
Supreme Court. It concluded that when the ground
for asserting privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the
generalized interest in
confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair
administration of criminal justice. In the 1982 case of
Nixon vs Fitzgerald, the US Supreme Court further
held that the immunity of the president from civil
damages covers only official acts. The US Supreme
Court had the occasion to reiterate this doctrine in a
case where it held that the US presidents immunity
from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to
appeals to stretch the scope of executive immunity in
our jurisdiction. One of the great themes of the 1987
Constitution is that a public office is a public trust. It
declares as a state policy that (t)he State shall
maintain honesty and integrity in the public service
and take positive and effective measures against graft
and corruption. It ordains that (p)ublic officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility,
integrity, loyalty and efficiency, act with patriotism and
justice, and lead modest lives. It sets the rule that
(t)he right of the State to recover properties
unlawfully acquired by public officials or employees
from them or from their nominees or transferees, shall
not be barred by prescription, laches or estoppel. It
maintains the Sandiganbayan as an antigraft court. It
creates the Office of the Ombudsman and endows it
with enormous powers, among which is to
(i)nvestigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient. The Office of the Ombudsman is also
given fiscal autonomy. These constitutional policies
will be devalued if we sustain the claim that a
nonsitting president enjoys immunity from suit for
criminal acts committed during his incumbency.











5

DAP and good faith
July 7, 2014

DAP, of course, is the Disbursement Acceleration
Program used by the government to speed up the use
of government money for the accomplishment of
public purposes. The money involved is public money
in the national treasury and the fundamental
constitutional rule is that no money may be taken out
of the public treasure except in accordance with an
appropriation made by law. And even after the money
is appropriated by law, it may be spent only within the
limits prescribed by law.
The DAP involves money that were placed in the
hands of President Aquino. It is broken up into
items. An item consists of two parts: an amount of
money and the purpose for which it is to be spent.
Normally such money may be used only for the
purpose specified in the item. However, in order to
give some flexibility to the President in the handling of
money, he may be authorized by law to augment the
money in one item in his department with savings
from another item. Savings mean leftover money
after the purpose of an item has been accomplished.
There are therefore two important limitations here: (1)
The President can transfer only savings and (2) the
transfers can only be to augment items in the
Presidents budget. In declaring the DAP
unconstitutional, the Court said that (1) the President
moved money which were not savings in an item but
which were sourced from various places, and (2) that
he transferred money from his budget to other offices
(e.g., the Commission on Audit and Congress).
This was all done by the budget secretary and
therefore effectively by the President because in our
presidential system, the acts of department heads are
presumptively the acts of the President, unless the
President expressly reprobates them. I am not sure if
in fact it was he who signed the documents needed.
But certainly he considered it an important
accomplishment. Unfortunately, by the unanimous
vote of the Supreme Court justices, the
accomplishment was declared partly unconstitutional.
Why only partly?
The reason is the operation of what is called the
operative fact doctrine. What is this? The doctrine of
operative fact recognizes that a law or executive act,
before it is declared unconstitutional, is an operative
fact which produces consequences that cannot
always be erased, ignored or disregarded. The law is
nullified, but its effect is sustained. Unless the
doctrine is held to apply, the Executive as the
disburser and the offices under it and elsewhere as
the recipients could be required to undo everything
that they had implemented in good faith under the
DAP. That scenario would be enormously
burdensome for the Government. Equity alleviates
such burden.
However, as Justice Arturo Brion has clarified, the
doctrine of operative fact cannot apply to the authors
and implementors of the DAP, unless there are
concrete findings of good faith in their favor by the
proper tribunals determining their criminal, civil,
administrative and other liabilities. The Supreme
Court is not the proper tribunal to determine that.
Necessarily, therefore, the question must be asked
about the good faith of the author of the law that has
been declared unconstitutional. But what is good
faith?
Good faith is an abstract term which includes a
sincere belief without any malice or intent to defraud.
It is a term often found in Commercial Lawe.g., a
buyer who purchases from one who did not have title
to the object bought may be called a buyer in good
faith if he observed honesty in the transaction and
observed reasonable commercial standards. To meet
this test, the person must have demonstrated honesty
in the conduct of the transaction concerned, and must
have observed reasonable commercial standards of
fair dealing in the trade.
If the purchaser acquires the property by an honest
contract or agreement and without knowledge of any
defect in the title of the seller or means of knowledge
sufficient to charge the buyer with such knowledge,
the purchaser is deemed a purchaser in good faith.
By analogy, if the President and the budget secretary
did not know that what they were doing was illegal
and could not have reasonably known its illegality and
only wanted to accelerate the movement of public
money for the public good, they would be in good
faith. Remember, however, that what is involved here
is not just peanuts but billions and billions of pesos.
How believable would the claim be that the President
and the budget secretary, both veterans of Congress,
had no inkling or the slightest suspicion of what the
Constitution requires for handling public money?
























6

Issues in the judicial
process
June 23, 2014

The right to bail. With the proliferation of persons
ordered arrested in relation to the Napoles
controversy, more and more people, all pleading
innocence, are likely to find themselves in detention.
Nobody wants to be deprived of liberty of movement.
Fortunately there is in our law the guarantee of the
right to bail: All persons, except those charged with
offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties. Let us try to
understand the scope of this protection.
The provision means that if the state wants to deprive
a person of this right to liberty, the state must prove in
a hearing that the detainee does not deserve to be
released on bail. Every accused is presumed to have
the right to be released on bail. Hence, for instance, if
Sen. Bong Revilla, who is now in detention, wants
release on bail, the presumption of having the right to
be released is on his side. The state will have to
prove in a hearing before the court that Senator
Revilla does not deserve to be released.
What evidence must the state show to prove that
Senator Revilla does not deserve to be released on
bail or has already lost his constitutional right to be
released on bail? The state must prove that the
charge against him is by law punishable by reclusion
perpetua and that the evidence points to a judicial
decision sentencing him to reclusion perpetua.
Every single one of the respondent senators claims
that there is no sufficient evidence to find him guilty,
much less that his guilt is punishable by reclusion
perpetua. Big-time lawyers have been hired to tangle
with government prosecutors. With equal certainty
the state is claiming that there is a mountain of
evidence. Necessarily the ballgame will move to the
Sandiganbayan. Meanwhile, the Sandiganbayan has
announced that it can handle the cases without need
for the assistance of special courts. We will wait for
what the court has to say.
The Judicial and Bar Council. Under the 1935
Constitution all appointments to the judiciary needed
confirmation by the Commission on Appointments.
Under this system, the complaint of those aspiring to
be members of the judiciary was that they had to
kowtow to members of the legislative body in order to
win confirmation.
The solution given under the 1973 Constitution to this
complaint was no solution at all. Aspiring judges had
a choice between the frying pan and the fire. The
1973 Constitution said that the president could
appoint anybody he chose from among those who
possessed the legal qualifications. There was no
check on the presidents power. The system assured
the president of judges loyal to him.
As a solution to the dissatisfaction with the 1935 and
the 1973 appointment process, the 1987 Constitution
now limits the presidents choice to those contained in
a list given to him by the Judicial and Bar Council
(JBC). The creation of the JBC was one of the major
innovations of the 1987 Constitution.
The main sponsor of the JBC was former chief justice
Roberto Concepcion. The focus of the debate on the
creation of the council was to ensure that it would not
be a body controlled by the president. The principal
opponent of the proposed composition was the late
senator Francisco Soc Rodrigo who argued that
since a majority of the council members would be
appointees of the president, the council could be
beholden to the president. The Constitutional
Commission, therefore, attempted to balance the
membership of the JBC. In the end, the Constitutional
Commission arrived at this composition: A Judicial
and Bar Council is hereby created under the
supervision of the Supreme Court composed of the
Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private
sector.
One will notice that the composition does not escape
the hand of the president. The justice secretary is the
presidents man, and the regular members (a
representative of the Integrated Bar of the Philippines,
a professor of law, a retired member of the Supreme
Court, and a representative of the private sector) are
appointed by the president with the consent of the
Commission on Appointments. Will such a
composition guarantee the independence of the
council? Will it assure the public that the members of
the judiciary from the Supreme Court to the lowest
level will be legal eagles of the highest quality?
There is no easy answer to that question. It will
depend partly on the competence and integrity of the
council members. Recently the JBC was put to
the test. When it sent to the President a list from
which to appoint a member of the Sandiganbayan, the
Palace, not happy with the list, returned it to the
council for review.
The public should be pleased with the reply of Chief
Justice Maria Lourdes Sereno. She said: We do not
read anything in the Constitution that authorizes the
JBC, once it submits a list of recommendees, to
revisit the same, even under changed circumstances.
We also see no process for confirmation by the JBC
of any list of
recommendees, if the list has been transmitted
officially through the appropriate channels, as indeed
it had been.
Happily, the Palace backed off and has not insisted
on what it was asking for.





7


Electing the Jesuit
superior general
June 16, 2014

Word has been officially circulated that the current
superior general of the Jesuits is set to resign in 2016.
What is so special about that?
The Jesuit superior general is sometimes referred to
as the Black Pope because he is seen as a powerful
religious leader who, unlike the pope who is usually
seen in white, is more often dressed in a black
soutanethat is, when he is not running around in
mufti.
But like the pope, the Jesuit superior general is
elected to serve office for life. This is a feature in the
Jesuit Order introduced by Ignatius himself
purportedly for the purpose, among others, of
preventing Jesuits from ambitioning for the position. I
have never been subjected to that temptation myself.
But if ever the general wants to quit, it is not a simple
nor an inexpensive matter.
The general is elected by a General Congregation,
that is, an assembly of elected Jesuit delegates
summoned from around the world who travel to Rome
for the purpose. (Although the next one might be
somewhere outside Rome.) The first step in the
process is a consultation of provincial superiors
around the world, asking them if in their judgment it is
time to consider looking for a new general. If their
judgment is positive, then the general summons a
General Congregation and the general submits his
resignation to the assembled General
Congregation. Once the resignation is accepted, the
General Congregation proceeds to the election of a
new general.
How is the election done? I was one of the Philippine
delegates to the General Congregation that elected
Fr. Hans von Kolvenbach as general to succeed Fr.
Pedro Arrupe who, for reasons of health, submitted
his resignation. First, we had to vote to accept the
resignation of Fr. Pedro Arrupe. After Father Arrupes
resignation was accepted, we proceeded to the
election of a new general. How is it done?
It is nothing like the election processes we are familiar
with. There are no nominated candidates. There is no
campaigning. The most we have is what is called
murmuratio when a delegate is allowed to talk to
others who might know something about one who is a
possible general. After the days of murmuratio, the
delegatesand the delegates aloneare locked up
in the session hall where they go through the process
of voting.
There are no nominees. The delegates could vote for
any qualified Jesuit in the entire world.
Each is given a slip of paper on which to write his
vote. The votes are collected, counted to ensure that
there is no duplication, read and tallied. If no one gets
the majority of the votes, then another round of voting
is done until someone finally comes out as the choice
of the majority. Next, palakpakan.
This is also how it will be when we finally go through
the process of electing who will succeed Fr. Adolfo
Nicolas.
Father Nicolas is well known to many of us in the
Philippines where he spent several years of his Jesuit
life. Many times we had dinner together in the Jesuit
Residence where I live. He was then director of the
East Asian Pastoral Institute in the Ateneo de Manila
campus when he was pulled out to become general.
But why is he now resigning?
In his letter to the whole Jesuit society, he said:
Several years have passed since my election as
Superior General of the Society and I have recently
reached the age of 78. Reflecting on the coming
years, I have reached the personal conviction that I
should take the needed steps towards submitting my
resignation to a General Congregation. After obtaining
the initial approval of the Assistants ad providentiam
and having informed his Holiness Pope Francis, I
formally consulted the Assistants ad providentiam and
the Provincials, as our law requires (NC 362). The
result of the consultation is favorable towards the
convening of a General Congregation.
What follows now? Before the next General
Congregation to elect a general, there will be
Provincial Congregations whose task it will be, among
others, to elect delegates to the General
Congregation. As I a recall, from the Philippines those
going there are the current provincial superior and
whoever are the two delegates elected by our
Provincial Congregation.
Who will be the next general? If I am not mistaken,
past generals, like all past popes before the current
one, have all been European. We now have a Latin
American pope. Will the next general be again
European? Or will the General Congregation decide
that it is now time for a Latin American or an Asian or
an American general? The only thing I am sure of is
that it will not be this Asian.




















8

The Supreme Court
decision on the RH Law

June 9, 2014

Duty to refer. Some provisions of the Reproductive
Health Law commonly mandate that a hospital or a
medical practitioner immediately refer a person
seeking health care and services under the law to
another accessible healthcare provider despite their
conscientious objections based on religious or ethical
beliefs. In this case, the conscientious objectors claim
to religious freedom would warrant an exemption from
the obligation to refer under the RH Law, unless the
government succeeds in demonstrating a more
compelling state interest in the accomplishment of an
important secular objective.
Once the medical practitioner, against his will, refers
a patient seeking information on modern reproductive
health products, services, procedures and methods,
his conscience is immediately burdened as he has
been compelled to perform an act against his beliefs.
The same holds true with respect to nonmaternity
specialty hospitals and hospitals owned and operated
by a religious group and healthcare service providers.
Considering that Section 24 of the RH Law penalizes
such institutions should they fail or refuse to comply
with their duty to refer under Section 7 and Section
23(a)(3), the Court deems that it must be struck down
for being violative of the freedom of religion. The
same applies to Section 23(a)(l) and (a)(2) in relation
to Section 24, considering that in the dissemination of
information regarding programs and services and in
the performance of reproductive health procedures,
the religious freedom of healthcare service providers
should be respected.
All this notwithstanding, the Court properly
recognizes a valid exception set forth in the law in life-
threatening cases that require the performance of
emergency procedures. In these situations, the right
to life of the mother should be given preference,
considering that a referral by a medical practitioner
would amount to a denial of service, resulting to
unnecessarily placing the life of a mother in grave
danger.
In a conflict situation between the life of the mother
and the life of the child, the Court recognizes the
applicability of the principle of double effect. A doctor
is obliged to try to save both lives. However, he can
act in favor of one (not necessarily the mother) when
it is medically impossible to save both, provided that
no direct harm is intended to the other.
Family planning seminars. The requirement that
applicant for a marriage license must attend a family
planning seminar is a valid exercise of police power.
After all, couples are free to accept or reject what they
learn in the seminar.
Family unity and privacy. Decisions on family planning
matters should be made by both husband and wife.
This refers to reproductive health procedures like
tubal ligation and vasectomy which, by their very
nature, should require mutual consent and decision
between the husband and the wife as they affect
issues intimately related to the founding of a family.
Similarly, parents do not lose their authority over
minors who have become pregnant. It is precisely in
such situations when a minor parent needs the
comfort, care, advice, and guidance of her own
parents. The State cannot replace her natural mother
and father when it comes to providing her needs and
comfort. To say that their consent is no longer
relevant is clearly antifamily. It does not promote unity
in the family. It is an affront to the constitutional
mandate to protect and strengthen the family as an
inviolable social institution.
Appropriate reproductive sexual education. The Court
refrained from commenting on this since the
Department of Education still has to formulate
implementing rules.
Facts and fallacies and the wisdom of the law. In
general, the Court does not find the RH Law
unconstitutional insofar as it seeks to provide access
to medically-safe, nonabortifacient, effective, legal,
affordable, and quality reproductive healthcare
services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some
sectors of society cannot be trampled upon in pursuit
of what the law hopes to achieve. After all, the
constitutional safeguard to religious freedom is a
recognition that man stands accountable to an
authority higher than the State. In conformity with the
principle of separation of Church and State, one
religious group cannot be allowed to impose its beliefs
on the rest of the society. Philippine modern society
leaves enough room for diversity and pluralism. As
such, everyone should be tolerant and open-minded
so that peace and harmony may continue to reign as
we exist alongside each other.
Be that as it may, it bears reiterating that the RH Law
is a mere compilation and enhancement of the prior
existing contraceptive and reproductive health laws,
but with coercive measures. Even if the Court decrees
the RH Law as entirely unconstitutional, there will still
be the Population Act (Republic Act No. 6365), the
Contraceptive Act (RA 4729) and the reproductive
health for women or The Magna Carta of Women (RA
9710), sans the coercive provisions of the assailed
legislation. All the same, the principle of no-abortion
and noncoercion in the adoption of any family
planning method should be maintained.









The Supreme Court decision on the RH Law

9

June 2, 2014

After a long wait, the verdict of the Supreme Court on
the constitutionality of the Reproductive Health Law
has been promulgated. It is a 106-page document
exclusive of concurring and dissenting opinions. Not
everyone will have the patience to read through it. But
since I had been writing about the bill while it was
being debated, I thought it might be useful for those
interested if I were to break it down into a more easily
accessible presentation.
The main issue in the case, of course, was the
constitutionality of the law. A multiplicity of grounds for
invalidation were brought to the Court by an army of
opponents. The substantive objections to the law
were: It was a violation of the right to life, the right to
health and to protection against hazardous products,
the right to religious freedom, right to equal protection
of law, the right to free speech, the right to family
privacy; of the rule on one subject/one bill; of natural
law. And it usurped the autonomy of local
governments and of the Autonomous Region in
Muslim Mindanao; constituted mandatory sex
education and involuntary servitude; and failed to
overcome the void-for-vagueness challenge.
What did the Supreme Court say about these multiple
grievous sins against the Constitution? I shall try to
give the Courts answer as briefly and simply as I can
to the more important objections.
Right to life. When does life begin? There are two
views on this. One says life begins at the fertilization
of the maternal ovum, that is, when sperm and ovum
meet. The other says life begins at the implantation of
the fertilized ovum in the ovary. The Court accepted
the view that life begins at fertilization. Thus any
attempt to terminate a fertilized ovum even before it
reaches the ovary is already abortion explicitly
prohibited by the RH Law. Hence, there is no offense
against a living being.
Right to protection against hazardous objects. This
objection was focused mainly against artificial
contraceptive. The assumption was that any method
of preventing conception is abortive. But Section 9 of
the law requires certification by the Food and Drug
Administration that no contraceptive device should be
abortive. Consistent with the constitutional policy on
the sanctity of life, the Court says that it is not enough
that a device is not primarily abortive to merit
prohibition. The use of the qualifier primarily will
pave the way for approval of contraceptives which
may harm or destroy a fertilized ovum. For a device to
be prohibited it is not enough that it is not primarily
abortive. Even those which only secondarily cause
abortion are prohibited.
Right to health. To ensure that the availability of
contraceptives will not be hazardous to health, the law
requires that only contraceptives that are safe are
made available to the public. The law says that It
shall be unlawful for any person, partnership, or
corporation, to sell, dispense or otherwise distribute
whether for or without consideration, any
contraceptive drug or device, unless such sale,
dispensation or distribution is by a duly licensed drug
store or pharmaceutical company with the prescription
of a qualified medical practitioner.
Religious freedom and nonestablishment of religion. It
is no secret that Filipinos hold different religious
beliefs about the morality of contraception and the
use of contraceptive devices. There are those who,
because of their religious education and background,
sincerely believe that contraceptives, whether
abortifacient or not, are evil.
But must the Court constrain a legislative act that is
not in conformity with the moral or religious belief of
some? The Courts answer to this question is the
benevolent neutrality theory: The benevolent
neutrality theory believes that with respect to these
governmental actions,
accommodation of religion may be allowed, not to
promote the governments favored form of religion but
to allow individuals and groups to exercise their
religion without hindrance. The purpose of
accommodation is to remove a burden on, or facilitate
the exercise of, a persons or institutions religion.
What is sought under the theory of accommodation is
not a declaration of unconstitutionality of a facially
neutral law, but an exemption from its application or
its burdensome effect, whether by the legislature or
the courts. It is not within the province of the Court to
determine whether the use of contraceptives or ones
participation in the support of modern reproductive
health measures is moral from a religious standpoint
or whether the same is right or wrong according to
ones dogma or belief.
The Constitution limits what the government can do
with religion. Conversely, it also limits what religious
sects can or cannot do with the government. They
can neither cause the government to adopt their
particular doctrines as policy for everyone. To do so,
in simple terms, would cause the State to adhere to a
particular religion in violation of the nonestablishment
clause.


(to be continued)







Four annexes
April 14, 2014
10


(Continued from March 31)
I discuss provisions in the Bangsamoro agreement
which might occasion constitutional debate.
Annex on Power Sharing. The Framework
Agreement delineates powers at different levels. The
Central Government will have its reserved powers,
the Bangsamoro Government will have its exclusive
powers within its territorial jurisdiction, and there will
be concurrent powers shared by the Central
Government and the Bangsamoro Government. The
delineation of reserved, concurrent and exclusive
powers is provided in Part Three of this Annex, and is
guided by the processes established under the
Framework Agreement.
Reserved powers are powers or matters over which
authority and jurisdiction are retained by the Central
Government.
Concurrent powers shall refer to the shared powers
between the Central Government and the
Bangsamoro Government, as contained in this Annex
and as shall be further provided in the Bangsamoro
Basic Law.
Exclusive powers shall refer to powers or matters
over which authority and jurisdiction pertain to the
Bangsamoro Government.
The first question that arises from this classification of
powers is whether the intention is to depart from the
unitary power system in favor of a kind of federal
system. The indication that we are moving into a
different form of national government is found in the
first paragraph of Part One: The relationship
between the Central Government and the
Bangsamoro Government is asymmetric. This relation
is reflective of the recognition of the Bangsamoro
identity and their aspiration for self-governance. This
makes it distinct from the regions and other local
governments.
A key word is asymmetric which, as far as I know,
appears for the first time in our constitutional
literature. The sharing of powers between the national
and Bangsamoro governments is clear: As a matter
of policy, the Central Government shall ensure the
participation and representation of the Bangsamoro in
national agencies and other Central Government
instrumentalities through the intergovernmental
relations mechanism. The Bangsamoro Basic Law
shall provide for the appointment of Bangsamoros to
positions provided under Republic Act No. 9054.
The governance structure. The form of government is
ministerial. The Bangsamoro shall have a
democratically-elected assembly consistent with the
principles of a ministerial form of government. The
Bangsamoro Transition Commission may provide for
the name of the assembly in the Bangsamoro Basic
Law.
Clearly, this is a departure from the presidential form
of government in favor of an assembly form of
government. Hitherto, the form of our local
governments has been the mayor-legislature type.
There is a list of powers retained by the central
government and a long list of shared
powers.
There is also a long list of powers given exclusively to
the Bangsamoro government.
Two special areas of power sharing may be singled
out for special discussion. What immediately caught
my attention is the provision on powers over natural
resources. It says: The Bangsamoro Government
shall have authority and jurisdiction over the
exploration, development, and utilization of mines and
minerals in its territory. The constitutional provision
on the subject says: All lands of the public domain,
waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural
resources are owned by the State. There is an
obvious constitutional difference here. Whereas now
the control over all natural resources is in the hands
of the national government, a measure of control will
be given to local governments.
Finally, if we go over the Annex on Wealth Sharing
and on Water Rights, I am certain that there will be
found other matters for discussion. Thus I believe
what is clear is that the finalization of the Bangsamoro
Basic Law will take more time than some of us would
expect. If the expected constitutional issues come to a
head, there will be a lot of heated debate. If
constitutional amendment will be involved, necessarily
the plebiscite for its ratification will have to be
national. This is bound to delay matters.
We can only hope that even as we await the outcome
of the debates on the final results of the Bangsamoro
agreement, we will be able to achieve peace in
Mindanao.

























11

Four annexes: an
overview
March 31, 2014

Up until last week all that the public had was the
Framework Agreement on the Bangsamoro.
Upon this framework would be hung annexes
that would give substance to what was
contemplated. Both government and
Bangsamoro negotiators worked hard to get the
annexes done until they were ready to submit
four to the public.
Finally last week with much fanfare and
witnessed by, among others, the prime minister
of Malaysia, the final document was signed. It is
a historic document which, it is fervently hoped,
will bring peace and prosperity to the war-torn
island of Mindanao.
The substance of the agreement is found in four
annexes: the Annex on Normalization; the
Annex on Transitional Arrangements and
Modalities; the Annex on Power Sharing; the
Annex on Revenue Generation and Wealth
Sharing, which includes an addendum on the
Bangsamoro Waters and Zones of Cooperation.
Annex on Normalization. By normalization is
envisioned a process whereby communities can
achieve their desired quality of life, which
includes the pursuit of sustainable livelihood and
political participation within a peaceful
deliberative body. It aims to ensure human
security in the Bangsamoro. To achieve this
end, various commissions are created for
transition and collaboration, together with an
International Monitoring Team. The primary
function of implementing the plan is with a Joint
Normalization Committee, a Joint Peace and
Security Committee, Joint Peace and Security
Teams. And this will be done by the gradual
decommissioning of the MILF (Moro Islamic
Liberation Front) forces by an Independent
Decommissioning Body and the redeployment of
the Armed Forces of the Philippines; through the
total ban on land mines, the disbanding of
private armies, a social economic program, a
Transitional Justice and Reconciliation
Commission, mobilization of resources, and
confidence-building measures.
Annex on Transitional Arrangements and
Modalities. For this annex, a Bangsamoro
Transition Commission (BTC) will be formed. A
principal function of the BTC will be the drafting
of the Bangsamoro Basic Law to be submitted to
the President for him to certify to Congress as
urgent. Once the basic law is enacted by
Congress, it will be submitted to a process of
popular ratification by the qualified voters in the
core territory of the Bangsamoro. The ratification
of the Bangsamoro Basic Law will repeal
Republic Act No. 9054 and will create the
Bangsamoro Transition Authority (BTA). The
BTA shall perform the functions of governance
until a ministerial government is installed.
The BTC will be composed of 15 members, all of
whom are Bangsamoro. Seven of them shall be
chosen by the Philippine government and the
other eight members, including the chair, by the
MILF.
The BTC will draft the Bangsamoro Basic Law
that will be presented to President Aquino for
him to certify to Congress as urgent. It will also
work on proposals for a constitutional
amendment should this be necessary.
The basic law shall be submitted for ratification
by the voters in the core territory of the
Bangsamoro.
A principal function of the BTA shall be to
prepare for the transition to a ministerial form of
government.
The Bangsamoro Basic Law shall provide for the
organization and composition of the BTA whose
members shall be appointed by the
President. The BTA shall be MILF-led.
Annex on Power Sharing. Since there are two
governing entities involved, it should be clear
who exercises what powers. The powers are
divided thus: reserved powers, i.e., powers
retained by the central government; concurrent
powers, i.e., shared powers between the two
entities as set in this annex and provided in the
basic law; and exclusive powers of the
Bangsamoro government.
The relationship between the two governments
is described as asymmetric, a bit of a tricky
concept. It is reflective of the recognition of the
Bangsamoro identity and their aspiration for self-
governance which makes it distinct from the
regions and local governments.
12

It is governed by a democratically elected
assembly consistent with a ministerial form of
government.
There is power-sharing on transportation and
communication, mineral energy resources,
taxation and others.
Annex on Revenue Generation and Wealth
Sharing. The parties recognize that revenue
generation and wealth sharing are important to
the existence of the Bangsamoro, which is
among the most underdeveloped areas in the
country. Thus, the parties commit jointly to
pursue measures to increase the Bangsamoros
wealth and capability for revenue generation.
This will involve taxation and other sources of
revenue and wealth.
Remarks. As can be seen, this is perhaps the
most ambitious undertaking the government has
attempted. It took months for the negotiators to
draft the framework and annexes. Now the
challenge is with Congress. I anticipate that
there will be intense and protracted debate and,
after Congress shall have come up with a draft
of the proposed basic law, the debate will spill
over into the public arena. How long will it take
for this process to reach completion?
Specifically, will it be finished before the 2016
elections? Some are optimistically predicting
that it will. That remains to be seen. This
overview gives only a very limited picture of the
complicated goal that is hoped to be
accomplished.




































































13

Expanded VFA
March 24, 2014

It may be a little early to comment on the
constitutionality or unconstitutionality of the proposed
modification of the Visiting Forces Agreement (VFA)
now since not even a preliminary draft is publicly
available. But it is good to go back to the
constitutional provision involvedSection 25 of the
Transitory Provisionsand look at the history behind
it.
Section 25 says: After the expiration in 1991 of the
Agreement between the Republic of the Philippines
and the United States of America concerning military
bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by
the other contracting State.
As can be seen, there is no absolute prohibition of
foreign military bases, troops, or facilities. They may
be allowed under a treaty duly concurred in by the
Senate and, when the Congress so requires, ratified
by a majority of the votes cast by the people in a
national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
Moreover, although it is not so stated in the text, it is
understood that this concession may be given only to
the United States.
Section 25 was the basis for the 1988 VFA with the
United States, which is still in force.
The original proposal for what is now Section 25
covered only bases. But the draft was modified to
include not just bases but also troops and facilities.
On this subject, there was the following exchange in
the 1986 Constitutional Commission. The first
question raised was whether a treaty on this subject
must cover all threebases, troops, facilitiesor only
one. The answer given was, it was possible for a
treaty to cover only one of these.
An objection was raised: I cannot find any reason
why the government can enter a treaty covering only
troops.
Answer: Why not? Probably if we stretch our
imagination a little bit more, we will find one. We just
want to cover everything.
The commissioner giving the answer made it clear,
however, that he was referring to permanent troops or
facilities, even independently of bases.
But the objector continued: Could we enter into a
treaty wherein we allow facilities to be here without
necessarily allowing bases?
Answer: I think that is a possibility because, for
instance, one can maintain a silo here for nuclear
weaponsunless we disallow nuclear arms, of
course. But they might want various kinds of facilities
which are not necessarily troops, not necessarily
bases.
In the end, what is now in Section 25 was approved.
All this discussion was done during the deliberations
on the Declaration of Principles. Later it was agreed
that the provision would be placed in the Transitory
Provisions where it is now. And the inclusion of
troops and facilities was the basis for the 1988
VFA. This was concurred in by the Philippine Senate
and we accepted the assurance, as we are bound to
under international law, that the agreement was
considered a treaty by the United States.
As I understand it, the current negotiations with the
United States are about the expansion of the
provision on troops found in the 1988 VFA and also in
relation to the Mutual Defense Treaty. After the new
agreement is signed, will it need concurrence by the
Senate? Put differently, can the modification be
embodied in an executive agreement without need for
a formal treaty?
This is not a novel question for us. Under the current
Constitution, in a 1987 decision, the Supreme Court
said: While treaties are required to be ratified by the
Senate under the Constitution, less formal
international agreements may be entered into by the
Chief Executive and become binding without the
concurrence of the legislative body. Thus, after the
effectivity of the 1987 Constitution, when the time
came for a review of the 1947 Military Bases
Agreement, the modifications were merely contained
in the Manglapus-Shultz Agreement and were not
submitted to the Senate for concurrence. The Senate
itself agreed that concurrence was not necessary.
I anticipate that the same will happen to the
forthcoming modifications of the VFA. But I do
anticipate warm debate on the subject.
Should President Aquino, ad cautelam, submit the
modification for ratification by the Senate, I am
certain it will be recalled that the Constitutions
openness to the accommodation of foreign military
forces was born out of the realization of our own
national defense needs. It is unavoidable that the
current threat of China will be a factor in our
international agreements especially on military
matters.


















14

The Charter change train
March 17, 2014

It looks like the Cha-cha (Charter change) train is
running in earnest and even President Aquino, who
initially opposed it, is now leaving it to Congress. That
is the way it should be; but, of course, he can always
express his preferences to his people in Congress.
The main interest of those sponsoring Cha-cha is the
national economy aspect of the Constitution. It is
being said that only the economic provisions of the
Constitution and none of the political provisions will be
touched. That, however, is not for any individual to
decide. I know that some lawmakers have signed a
pledge that only economic amendments will be
proposed. But there is no constitutional authority that
can dictate what amendments may or may not be
taken up. Once the process is opened and a political
amendment is proposed, Congress will have to
discuss it, vote on it, or reject it outright. Until all
noneconomic amendments are rejected, one can still
slip in. Only Congress has the final say.
Let me also make the observation that not everything
about the national economy has been set by the
Constitution. Under the Constitution itself, Congress
has been given ample power for setting the balance
of economic interests between local and foreign
investors. The power of Congress on this matter is in
Section 10 of Article XII. It will be recalled, for
instance, that the meaning of the 60-40 rule for public
utilities was not set by the Constitution but by the
Foreign Investment Act. Perhaps Congress should
even now explore what else it can do about the
balance of economic powers without having to wait for
a constitutional amendment.
Even as there already is talk about what amendments
to initiate, there is no definite decision yet on how the
amendatory process will be done. This is a matter for
Congress to decide. It is therefore important to know
what options Congress has. I have written about this
before but it seems to be a live issue again.
In general, amendments or revisions may be
proposed either by a constitutional convention, or
directly by the people, or by Congress. Which
procedure to use depends on Congress. No one
seems to be thinking of calling a constitutional
convention or leaving the proposal of amendments to
the people. We are therefore left with Congress as the
agency to do the job. What procedure should
Congress follow?
On this subject, the Constitution is barren of details. It
simply says:
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;
It will be noticed that the Constitution imposes on
Congress only one restriction, namely that any
proposal be approved by three-fourths of all its
members. This means that aside from the
requirement of a three-fourths vote, Congress is free
to decide how it will go about the task. What are the
options?
First, the two houses of Congress might come
together in joint session for the purpose of proposing
amendments. This has been done before. The
Constitution says that a three-fourths majority is
needed to approve a proposal. But the Constitution
does not say whether the two houses vote jointly or
separately. That is for Congress to decide.
The normal procedure would be that they vote
separately since Congress consists of two separate
houses. The decision to have two houses was based
on the argument that decisions should be reached not
once but at least twice. Because of this reason for
having two houses, separate voting is the general rule
and joint voting is allowed only when the Constitution
says so.
Second, both houses might decide to do it the way
they pass ordinary legislation, that is, as they are,
where they are and voting separately, but by a three-
fourths majority of each house, and only coming
together, the way they do in ordinary legislation, to
reconcile differences.
Several years ago I proposed this second method and
theoretically it was accepted by members of
Congress, but it was never used. I am informed that
at least the House of Representatives is considering
using this method. But does the Constitution allow it?
My usual answer to such a question is: If it is not
prohibited, then, whether stupid or wise, it is allowed.
In this case, I believe it is wise. How so?
For a number of reasons. First, the Constitution says
that Congress may propose amendments but leaves
much of the details of how to do it to the wisdom of
the illustrious members of Congress. Second, it is
wise because, among other reasons, it will allow for a
focused debate and avoid rambling discussions. It will
also allow Congress to prioritize urgent matters and
have them approved in a plebiscite earlier, and give it
the satisfaction of having something to show to the
people they serve.
The current Constitution was drafted and ratified in
1986-1987 in the wake of the People Power
Revolution. All these years it has remained virginal. It
has been praised but also criticized for various
reasons, among them being that it was drafted by 48
people handpicked by President Cory Aquino.
Changes have been proposed from time to time, but
none has ever reached the plebiscite stage. Will
change be achieved during the presidency of
President Corys son? There still are about two years
before his term ends.







Two Restorations
15

March 3, 2014

Last Tuesday we celebrated the restoration of
democracy in the Philippines by recalling the Edsa
Revolution. The Jesuits, meanwhile, during this year
have been celebrating the 200th year since the
restoration of the Society of Jesus.
Why restoration? Because the history of the Jesuits in
the Philippines is linked with the history of the Jesuit
Order, which was born in 1540 when Pope Paul III
approved the new religious order founded by Ignatius
of Loyola. Immediately after the approval the order
rapidly grew in number and influence. Two centuries
later it was caught in the middle of the controversy
among the Bourbon monarchs and was accused of
being part of the royal controversy. The outcome of
this was the brief Dominus ac Redemptor decreed by
Clement XIV in 1773, suppressing the Jesuit Order.
Before that, Spains Carlos III in 1767 had ordered the
expulsion of Jesuits from his realm. This included the
Jesuits who first arrived in the Philippines in 1565 in
the company of Miguel Lopez de Legaspi. But
because of the distance from Spain, the order of
Carlos III reached the Philippines only on May 19,
1768.
The decree was read to the Jesuits assembled at the
Colegio de San Ignacio. Immediately, the systematic
expulsion of the Jesuits began. They were shipped
from the Philippines in four different vesselsSan
Carlos, Santa Rosa, Venus, Astreato various
European destinations.
But there was something providential about the brief
Dominus ac Redemptor . It seemed that Clement XIV
was not happy with what he had done. He said later:
Compulsus feci. I did it under compulsion. Thus,
under the terms of the popes decree, it could not take
effect unless promulgated by the local monarch.
Empress Catherine of Russia never promulgated it in
her domain. There the Jesuit Order continued to exist
even after the suppression. Thus, former Jesuits
began to rejoin the order in Catherines domain.
The suppression was a difficult period for the Society
of Jesus. But Clement XIV and his successors never
tried to suppress the society in Russia. There is, for
instance, a presumptive letter of Clement XIV to
Catherine of Russia in which the pope had approved
the decision of the empress to conserve in her
territories Jesuits suppressed elsewhere.
The history of what happened from the suppression to
the restoration is complicated. The long and the short
of it is that on
Aug. 7, 1814, Pope Pius VII restored the Society of
Jesus with the papal bull Solicitudo ominium
ecclesiarum. That is the restoration we Jesuits have
been celebrating this year.
As archivist and historian, Fr. Rene Javellana wrote in
an earlier piece that the Jesuits had been in the
Philippines for 187 years (beginning in 1581 the year
Antonio Sedeo, a veteran of the Florida mission,
arrived with two other Jesuits) when they were
expelled in 1768; the Jesuits left behind numerous
parishes and mission stations organized under central
residences.
But more than these apostolates, the Jesuit
contribution to the Christianization of the Philippines
was considerable. More importantly, they left a
strategy of evangelization. While the schools
educated the elite, the missions and parishes reached
out to the frontiers. In the
villages, a routine of prayer, study and work was
introduced, and agriculture and livelihood were
improved by introducing useful plants and new
methods of agriculture, by raising cattle and by
building brick factories.
The Jesuits prepared for mission work by learning the
vernaculars, which meant compiling grammars and
dictionaries, preparing books and pamphlets in these
languages, printing, and disseminating them. Seeing
the value of the printing press as a means of mass
communication, the
Jesuits established a press in the Colegio de San
Ignacio in Manila which churned out, for instance, a
vernacular translation of Bellarmines catechism.
So deeply did the Jesuits affect the peoples lives that
when news came suddenly and unexpectedly to the
Samareos that the Jesuits were being expelled, the
people were ready to defend them and even take up
arms. So cherished were these Jesuits.
In 1859, the Jesuits returned to Manila but could not
lay claim to any property owned before the expulsion.
Starting financially from zero, their only sources of
income were government subsidy and gifts from
benefactors from Spain and Manila.
The City of Manila asked Fr. Jos Fernandez Cuevas,
the mission superior, that the Jesuits take charge of a
public elementary school, the Escuela Pia, although
such was not in their mandate. This was the seed that
would become the Ateneo de Manila University.
Most of the Jesuits were sent to the Mindanao frontier
where they used strategies that their predecessors
had found effective, like learning the native languages
and preaching in them, working closely with the
people, organizing them into orderly settlements, and
uplifting their livelihood.
We Jesuits have much to be thankful for and to
celebrate. Deo gratias!





Charter change
February 16, 2014

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Once more Charter change is being discussed and
even favored. Even President Benigno Aquino III, who
initially sounded as if he had definitively closed the
door on Charter change, is now open to it. This is very
significant because of his powerful influence on
Congress. Charter change cannot take place without
the blessing of Congress.
For the moment, the only fundamental change that is
being repeatedly mentioned is the liberalizing of the
constitutional policy on natural resources. But there
are quite a number of potential topics that can
explode. The final version of the Bangsamoro Law
might also require constitutional change, but we do
not yet know what this law will look like. I also hear
exasperated remarks about how the party-list system
is working badly, or even worse.
The matter of what method to use for achieving
change is now at the forefront of discussions. Let us
review them because the outcome can depend very
much on who will formulate the proposed changes.
The constitutional text on the subject tells us who can
do the job:
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.
From this it is clear that there are three agents that
can propose constitutional change: Congress, a
constitutional convention, the people. Central to all of
this is Congress because not only may it propose
amendments; also, Congress alone can activate the
other agents. Incidentally, notice that President
Aquino is not one of the agents. (But President
Ferdinand Marcos did propose amendments. That is
now history.)
No one seems to be thinking of having a constitutional
convention do the job now. As for amendments
proposed directly by the people in a system of
initiative and referendum, we tried it a number of
times, but it never succeeded. We tried it illegitimately
since there is as yet no law implementing the system.
And I dont think it will ever work. Nor do I see or even
suspect that President Aquino will attempt to propose
changes. We are therefore left with Congress. How
will Congress do it?
It will be noticed that the Constitution does not dictate
how Congress should do it, except to require that the
outcome be approved by three-fourths of all the
members. This means that aside from the
requirement of a three-fourths vote, Congress is free
to decide how it will go about the task. What are the
options for Congress?
First, the two houses of Congress might come
together in joint session for the purpose of proposing
amendments. How they are to organize themselves
and by what majority they are to decidesimple
majority, two-thirds majority, three-fourths majority,
voting either jointly or separatelyall these are for
Congress to decide.
Second, both houses might decide to do it the way
they pass ordinary legislationthat is, as they are
where they are but voting separately by a three-
fourths majority, and only coming together, the way
they do in ordinary legislation, to reconcile
differences.
Several years ago I proposed this second method and
theoretically it was accepted by members of
Congress, but it was never acted
upon. I am informed that at least the House of
Representatives is considering using this
method. But does the Constitution allow it?
My usual answer to such a question is: If it is not
prohibited, then, whether stupid or wise, it is allowed.
In this case, I believe it is wise. How so?
For a number of reasons. First, the Constitution says
that Congress may propose amendments but leaves
much of the details of how to do it to the wisdom of
the illustrious members of Congress. Second, it is
wise because, among others, it will allow a focused
debate and avoid rambling discussions. It will also
allow Congress to prioritize urgent matters and have
them approved in a plebiscite earlier and give its
members the satisfaction of having something to
show to the people they serve.
The current Constitution was drafted and ratified in
1986-1987 in the wake of the People Power
Revolution. All these years it has remained virginal. It
has been praised but also criticized for various
reasons, among them for being drafted by 48 people
handpicked by President Cory Aquino. Changes
have been proposed from time to time but none has
ever reached the plebiscite stage. Will change be
achieved during the presidency of President Corys
son?







Echoes from Corona
impeachment

17

January 26, 2014

In his recent privilege speech before the Senate, Sen.
Ramon Bong Revilla alleged that President Aquino
sought to influence his vote on Chief Justice.
Renato Coronas conviction. As expected, President
Aquino denied that he tried to influence anybody, but
he admitted that he talked to Senator Revilla and
other senators in the wake of the mounting pressure
on the prosecution. What then was the point of the
visit if not to help the prosecution? Merely to say
Hello?
The incident has triggered two questions. First, was
the conversation with Senator Revilla an impeachable
offense? Second, what effect could the revelation of
Revilla and the admission of President Aquino have
on the conviction of Chief Justice Corona?
On the first question: If you are inclined to support
impeachment, the grounds you will have to weigh are
culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or
betrayal of public trust. Choose your pick. I am not
inclined to join in the game especially when I consider
the current composition of Congress where
impeachment cases must go.
The second question is more interesting. I have been
asked if it is possible for the Supreme Court to review
and reverse the conviction of Chief Justice Corona.
The first thing I can say about this is that there is no
jurisprudence on the question. I have discussed this
before; but since it is being asked again, especially in
the light of Senator Revillas accusation and President
Aquinos admission, let me discuss it once more.
Necessarily we have to begin with the constitutional
provision which says: The Senate shall be the sole
judge to try and decide all cases of impeachment.
How absolute is the exclusivity of the power of the
Senate?
It might be noted that the power of the electoral
tribunals is couched also in exclusive terms: The
Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns,
and qualifications of their Members. Nevertheless
the Supreme Court has reviewed and invalidated a
final vote tally made by an electoral tribunal which the
Court found to have been unsupported by evidence.
How did the Philippine Court arrive at its conclusion?
The answer of the Court to that question was Article
VIII, Section 1, a new provision in the 1987
Constitution, which has been accepted as an
expansion of the powers of the Supreme Court. This
provision says that Judicial power includes the duty
of courts of justice to determine whether or not
there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
Moreover, Section 5 of the same Article VIII says that
the Supreme Court has the power to Exercise
original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas
corpus. Certiorari is precisely for handling cases of
grave abuse of discretion amounting to lack or excess
of jurisdiction. This was the basis for the Supreme
Courts review of a number of decisions of an
electoral tribunal. The question now is whether the
Court will apply this same provision to decisions of the
Senate in an impeachment case.
In trying to discern which direction the Court might go
in the impeachment case, I am reminded of what one
writer said of the US Supreme Court:
The reason underlying this difficulty is all too well
known: the Supreme Court is not simply a Court; it is
an important part of the American political process.
Because the key phrases of the Constitution have
such grand ambiguities, the Court has wide discretion
in passing on matters with a constitutional dimension,
and because such matters are likely to concern and
affect the larger issues of American life, the Court, in
passing on them, exercises great political power.
The Court thus has a hybrid role; and the arresting
thing is that were its role to be purified in either
directionby having it become more simply a court
and nothing more, or by having it become, bluntly, a
political agency and nothing moreit would lose its
power and its purpose. The special burden of the
Court, then, is to exercise great political powers while
still acting like a court, or if we prefer, to exercise
judicial powers over a wide domain while remaining,
realistic, and alert as to the political significance of
what it is doing.
Indeed, there is grand ambiguity in the apparent
conflict between the expanded power of the Supreme
Court in Article VIII, Section 1 and the exclusive
power of the Senate in Article XI, Section 3(6). The
Court should resolve this ambiguity in a manner that
will best serve the nation. However, I do not believe
that it would be in the best interest of the nation for
the Supreme Court to initiate a head-on collision with
the Senate, especially since Corona himself, the
person most involved, or the person with the clearest
locus standi, seems to have accepted the Senate
verdict.















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Sea-grabbing as new
international concern

January 12, 2014

By sea-grabbing I refer to what China is trying to do
over wide swathes of sea. Earlier we had controversy
over airspace. This remains unresolved. Now China
has started another controversy, this time over sea
space. Claiming police powers in the disputed South
China Sea, China is requiring foreign fishermen to ask
Beijings permission to operate within the vast
strategic area. The affected areas include waters
claimed by the Philippines, Vietnam and others.
Historically, the sea has performed two very important
functions: first, as a medium of communication
between states; and second, as a vast reservoir of
wealth resources living and nonliving. For that reason
laws have been developed to govern the use of the
seas.
In the 17th century, there arose the claim that a state
could dominate the high seas, but this was countered
by Grotius who developed the doctrine on freedom of
the high seas. Little by little the body of laws grew,
and now the prevailing law is the 1982 United Nations
Convention on the Law of the Sea (Unclos). China is
a signatory to this convention. We would therefore
expect China to honor it.
Briefly, coastal states have a claim of control, in
varying degrees, over portions of the seas. Each state
is entitled to territorial waters, a contiguous sea, and
the exclusive economic zone.
The territorial sea is a belt of sea outwards from the
baseline. The baseline is an imaginary line drawn
around the shallow water edge of a land area. We
recently amended our baseline law in order to
conform to the requirements of the 1982 Unclos.
The width of this territorial belt of water has been the
subject of much disagreement. The original rule was
the cannon shot rule, that is, the width of water was
measured in terms of the range of shore-based
artillery. Later this became the three-mile rule. The
three-mile rule has now been discarded in favor of the
12-mile rule now found in Article 3 of the Unclos.
The authority of the coastal state over its territorial
sea and the airspace above it, as well as the seabed
under, is the same as its sovereignty over its land
territory. However, the sea is subject to the right of
innocent passage by other states. The rule on
innocent passage applies to ships and aircraft.
Submarines, moreover, must surface. Innocent
passage is passage that is not prejudicial to the
peace, good order or security of the coastal state.
The contiguous zone is an area of water not
exceeding 24 nautical miles from the baseline. It thus
extends 12 nautical miles from the edge of the
territorial sea. The coastal state exercises authority
over that area to the extent necessary to prevent
infringement of its customs, fiscal, immigration or
sanitation authority over its territorial waters or
territory; and to punish such infringement.
The doctrine on the exclusive economic zone is a
recent development. Prior to the acceptance of this
doctrine, all waters beyond the contiguous zone were
considered high seas, over which no state had
control. The doctrine developed owing to the desire of
coastal states for
better conservation and management of coastal
fisheries.
The exclusive economic zone is an area
extending not more than 200 nautical miles beyond
the baseline. The coastal state has rights over the
economic resources of the sea, seabed and subsoil
but the rights do not affect the right of navigation and
overflight of other states. This is a compromise
between those who wanted a 200-mile territorial sea
and those who wanted to reduce the powers of
coastal states.
The provisions on the exclusive economic zone are
both a grant of rights to and an imposition of
obligations on coastal states relative to the
exploitation, management and preservation of the
resources found within the zone.
The two primary obligations: First, coastal states must
ensure, through proper conservation and
management measures, that the living resources of
the exclusive economic zone are not subjected to
overexploitation. This includes the duty to maintain
and restore populations of harvested fisheries at
levels which produce a maximum sustainable yield.
Second, they must promote the objective of optimum
utilization of the living resources. They therefore
should determine the allowable catch of living
resources. If the coastal state does not have the
capacity to harvest the allowable catch, it must grant
access to other states. The details on this matter are
found in Articles 55 to 75 of the
Unclos.
The United States, although it does not take sides in
the dispute over the South China Sea, insists on the
freedom of navigation in the area. Quiet obviously,
when the measurements prescribed by Unclos are
applied, the territorial waters of neighboring countries
can overlap. China has resolved possible overlap by
asserting its power unilaterally, requiring fishing
vessels to ask Beijings permission. Manila, for its
part, is seeking clarification of what the new Chinese
rules are demanding.













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