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Sources: Plans To ‘FastTrack’ Con-Ass Being Laid (2nd UPDATE)

June 14, 2009


With Congress on vacation until July 27, House Speaker Prospero Nograles is trying a new tack to resolve the controversy over his chamber’s railroading of the resolution calling for a Constituent Assembly to amend the 1987 Constitution even without the participation of the Senate.

The lawmaker from Davao City wants the Supreme Court, on its own volition (moto propio), to immediately rule on the constitutionality of House Resolution (HR) 1109 convening Congress into a Constituent Assembly (Con-ass) to amend the Constitution without the participation of the Senate.

“It is my considered legal opinion that due to the public interest generated by Charter change, the Supreme Court may take legal cognizance of the issue and rule on the matter to prevent anymore protests and marches connected with the same,” Nograles said in a statement on Friday.

At least two petitions have been filed before the Supreme Court questioning the validity of HR 1109. Anti-Cha-cha forces have alleged that these petitions, including that presented by known Marcos loyalist lawyer Oliver Lozano, are ploys of the administration efforts aimed at getting a swift ruling from the High Court.

Sources told this writer:

There are also intense back-channeling moves to convince Senators close to Malacanang to buy into a ‘worse case scenario’ should the Supreme Court  “not act swiftly enough to legalize Con-Ass.”

They are looking at the option of staging a ‘rump session’ where a ‘representative group’ of Senators will register their appearance at a special ‘joint session’ for the purpose of validating Resolution 1109 and calling the Constituent Assembly into Session,” at least three highly-placed sources in the Senate and House told this writer.

My sources added:

There is considerable concern over the danger of street protests against Con-Ass snowballing, apart from restiveness in the uniformed services.

Filipinos abroad have also been vocal against Con-Ass with pocket demonstrations being staged in the United States and in the Middle East.

There are also online protests on social networking web sites like FaceBook, where at least 4 ‘Cause’ pages have had ‘sign-ups’ attracting more than 70,000 ‘joiners’.

As the protests plod on, the weekend has also seen Malacanang issuing new denials that Mrs. Arroyo would run for a seat in a ConAss-created unicameral national assembly.

Agrarian Reform Secretary Nasser Pangandaman was the latest Cabinet member reported raising that possibility.

After making the statement in Koronadal City on June 12 he has now withdrawn the remark saying, “I was misquoted.”

Outgoing Justice Secretary Gonzales has not reconsidered his own earlier remark late last week in an ABS-CBN interview.

Over in Pampanga, billboards featuring Pres. Arroyo and her sons have reportedly started to appear, while Pampanga Governor Ed Panlion said that if Mrs. Arroyo does run in her home 1st district in Lubao, “we will be forced to field our own candidate against her.”

The rumblings are likely to get louder as allies of GMA pursue their agenda.


The historical precedent for a rump session of the Senate dates back to 1949.

Senate President Jose Avelino, to whom is attributed the dubious phrase “what are we in power for,” had been ousted in a power struggle stemming from the 1949 national elections.

quirino avelino poster

Jose Avelino and Elpidio Quirino  had bitterly contested the nomination for the Liberal Party’s standard bearer.

After Elpidio Quirino became President, the Quirino LP Wing  joined forces with the NPs to oust Avelino as Senate President in on graft charges, and  Senator Mariano Jesus Cuenco replaced Avelino.

Avelino tried to bounce back but Senator Mariano Cuenco (grandfather of current Cebu Rep. Antonio Cuenco) replaced Avelino in the intra-chamber power struggle after Avelino lost out to Quirino in the party nomination race.

Not to give up so easily, “it was at this instance that 1o other Senators loyal to Avelino joined him in a rump session to try to overturn Cuenco’s assumption of the Senate presidency,” a former senator told me.

“The constitutionality of that rump session was questioned before the Supreme Court which declared the stunt  illegal,” the former senator told this writer.

My own research in connection with that 1949 rump session turned out the decision of the Supreme Court on March 4, 1949 where it voted 6-4 not to intervene in the intra-chamber squabble by which decision it let Cuenco’s replacement of Avelino remain undisturbed.

I will not burden my readers with a tortuous recap of the decision itself.

But what is interesting reading is this portion which captured for posterity the arrogant posture of Avelino about those like him who wielded power:

sen JoseAvelino

Senate President Jose Avelino, in a caucus of high government officials of the Philippines Government and leaders of the Liberal Partyheld at Malacañang palace on January 15, 1949, delivered a speech,wherein he advocated the protection, or, at least, tolerance, of graft and corruption in the government, and placed the interest of grafters and corrupt officials as supreme and above the welfare of the people, doctrine under which it is impossible for an honest and clean governmentto exist;

WHEREAS, this speech of Senate President Jose Avelino was given wide publicity by the press, especially the Chronicle Publication in their issues of January 16 and 18, 1949, as follows:

The senate President defenses (sic) the abuses perpetrated by Liberal Party men. He called the investigations of the surplus property commission irregularities and the immigration quota scadal as acts of injustice he describe the probe as “criminal” and “odious.” He flayed the National Bureau of Investigation agents for persecuting Liberal party leaders.

“We are not angels”, he said. “When we die we all go to hell. It is better to be in hell because in that place are no investigations, no secretary of justice, no secretary of interior to go after us.”

Avelino, who is the present President of the Liberal party, ensured the President for his actuations which, he claimed, were mainly responsible for the division of the party into two hostile camps.

Avelino asked the President to “tolerate” if he could not “permit”, the abuse of the party in power, because why should we be saints when in reality we are not?

He stressed that the present investigation being conducted by President Quirino on the surplus property scandal and the immigration quota rackety has lowered the prestige of the Liberal Party in the eyes of the people, and is a desecration to the memory of the late President Manuel Roxas. “It is a crime against the Liberal Party”, Avelino said.

Defining his attitude regarding rights and privileges of those who are in power in the government, Avelino maintained that the Liberal Party men are entitled to more considerations and should be given allowance to use the power and privilege. If they abuse their power as all humans are prone to do, they will be given a certain measure of tolerance, Avelino said, adding, “What are we in power for?”

Avelino cited the surplus property investigations as an attempt to besmear the memory of Presidential Roxas. As a result of these investigations, the members of Congress are subjected to unjust and embarrassing questioning by NBI, Avelino said. And what is worse is the fact that these senators and representatives are being pilloried in public without formal charges filed against them. (Manila Chronicle issue of Jan. 16, 1949).

At last Saturday night’s caucus Senate President Avelino for two hours lectured to President Quirino on Liberal Party discipline. At the same time he demanded “tolerance” on the part of the Chief Executive by the party in power.

The investigations were conducted on vague charges, Avelino claimed. Nothing specific has teen filed against atop Liberal Party man. And yet National Bureau of Investigation agents have persecuted top leader of the LiberalParty. That is not justice. That is injustice. . . . It isodious. . . . It is criminal.

Why did you have to order an investigation Honorable Mr. President? If you cannot permit abuses, you must at leasttolerate them. What are we in power for? We are not hypocrites. Why should we pretend to be saints when in realitywe are not? We are not angels. And besides when we die we all go to hell. Anyway, it is preferable to go to hell wherethere are no investigations, no Secretary of Justice, no Secretary of Interior to go after us.


Jesuit priest Jouquin Bernan, Dean Emiritus of the Ateneo Law School and one of framers of the 1987 Constititution is now saying he thinks the allies of Mrs. Arroyo will indeed try to convoke a Constituent Assembly even if the Senate does not participate in it.

Bernas notes how there are shifting positions among the Representatives and that even the Supreme Court where there the GMA appointees are now a majority, a pro-ConA|ss ruling may not necessarily be a given.Writing in the Philippine Daily Inquirer, Father Bernss says:

CHANCES are that some members of the House of Representatives will push for the activation of the House as a constituent assembly. Of course, they have every right to do that. But not to worry. What the outcome will be is very much a matter of speculation. Let me join the speculation.
Clearly, a substantial number of members are seen as supportive of the idea of acting as a constituent assembly. But they do so for different reasons. Some think that it is the right thing to do for the country. God bless them! It is not clear how big their number is. Others, I am told, just want to be seen as supporting the idea so that their pork barrel allocation will not be withheld; but they will cast their votes on the side of the angels when reckoning day comes. What will Bayani Fernando say of them?
Assuming that a large majority of them really support Congress as a constituent assembly, it is not very clear what kind of constituent assembly they would like to be. There are those who believe that the House as a constituent assembly should not exclude the role of the Senate as a partner constituent assembly. As I recall, this was the position of Speaker Prospero Nograles when he supported what has been referred to as the “fourth mode” of proposing amendments. He was not alone in supporting that position, but now it is not clear to me if that is still the Speaker’s position. He seems to look beleaguered every time he appears on television.
There are also those whom I would call the “1109 purists” who believe that the House can go it without the Senate and will indeed go it without the Senate.
Whether they are “fourth mode” adherents or “1109 purists,” they are one in their desire to get the Supreme Court involved as legitimizing agent of how they want to proceed. The Supreme Court has just reiterated what every law freshman should know, namely that the Court will get involved only when there is an actual controversy involving conflict of rights. What will it take to get the Supreme Court involved after Congress convenes in July? It will not be easy.
I begin with the “fourth mode” adherents. If some time after the House resumes session it should succeed in approving a proposed amendment by a vote of three-fourths of all the members, and thereafter pass their approved proposal to the Senate, will there already be a justiciable controversy? Will anybody now be able to go to Court to challenge the legality of the “fourth mode”? I do not think so. Nobody’s right will have been violated. The “fourth mode” will be completed and be ripe for Court action only if the Senate acts on the proposal by accepting it and joining the House in scheduling it for a plebiscite. Those who do not accept the “fourth mode,” because they believe that every proposed amendment must be deliberated on in joint session, can then already challenge the constitutionality of the “fourth mode.”
But if the Senate rejects the House proposal, the proposal will be dead in the water. Or if the Senate refuses to act on the proposal and simply archives it, there will be no “fourth mode” to bring to the Court. Nor can the Court compel the Senate to act. So separation of powers dictates.

I had the chance to speak to another framer of the 1987 Constitution, Atty. Christian Monsod who heads OneVoice organization.

He shared his belief that while the Con-Ass proponents may indeed pusue their Senate-less ConAss the Arroyo administration must step down in 201o.

One Comment leave one →
  1. June 14, 2009 10:48 am

    this post published here:

    please let us know if you wish it be removed.

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