ZestAir, Marcos, and the Right to Travel and Return

On our way home from our week-long vacation in Baguio and Manila, we were scheduled to leave for Davao at 6:30 PM onboard ZestAir. At the boarding gate, someone announced that our flight would be delayed due to delay in turnaround, whatever that means. Instead, boarding would commence at 7:00 PM. But we boarded the plane, as cabin crews are wont to say, at twenty minutes past the hour of seven in the evening. 7:20 PM, for short.

As if it were not enough, the cabin crew further announced that take off would be delayed. This time it’s due to ground servicing. We took off at 8:30 PM.

That meant we were delayed for two hours. I was about to pity us when suddenly I thought of erstwhile President Ferdinand E. Marcos, the longest serving President of the Philippines. We were far luckier than him—luckier because we were certain to return home, while Marcos, when he left, was not. All we needed to do was to wait. Marcos had to go all the way to the Supreme Court and fight for his right to return.

To hold or not to hold

When President Obama decided to release what is touted as the Torture Memos, he was faced with a dilemma: to hold or not to hold those who authorized the memos accountable.

There are those who argue that President Obama should, because it's an affront to the basic law of the land, the Constitution. On the other hand, there are those who argue that President Obama should not, because it just distracts the administration from dealing with more pressing matters, chief of which the battered economy.

On the January 11th edition of ABC’s “This Week, when asked whether he will "...appoint a special prosecutor...to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping," the then President-elect Obama didn't give a black or white answer.

"We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth," he said. "And obviously we’re going to be looking at past practices and I don’t believe that anybody is above the law. On the other hand I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering [up]."

But Paul Krugman, the Nobel Laureate slash economist slash blogger, begged to differ.

"I’m sorry," Krugman wrote, "but if we don’t have an inquest into what happened during the Bush years — and nearly everyone has taken Mr. Obama’s remarks to mean that we won’t — this means that those who hold power are indeed above the law because they don’t face any consequences if they abuse their power."

Why I'm bringing this up?

Because now that we are about to choose, among others, our next president (sana walang umaswang sa election), one question that we might find ourselves asking is, "Will the next president hold the past administration accountable for its many abuses?"

It's too early to say if someone will, but based on the presidentiables' earlier remarks, it seems that nobody won't.

The Consti's primordial intent: A bicameral Congress

Several attempts to amend or revise the Constitution (popularly known in this country as Charter change [Cha-cha]) in the recent past did not fail to raise a howl of protest. From the administration of Ramos to Estrada to Arroyo, Cha-cha as an agenda of every administration never ceased to have a nemesis coming from different sectors—religious, civil society, political opponents, etc. The ones that are underway in the House of Representatives are no exemption.

But aside from Cha-cha itself, the mode of carrying it out is equally problematic. There are three ways to do it as provided by the Constitution: (1) through Constitutional convention (Con-con); (2) through people’s initiative; and (3) through Constituent assembly. The third one is the option the proponents of Cha-cha in the House want to pursue. However, it is also the trickiest because up to today it is still unclear (and the Supreme Court hasn’t decided yet) whether the two chambers of Congress---Senate and House of Representative---vote separately or jointly should they convene as Con-ass to change the Constitution?

To the proponents of Cha-cha in the House, who are staunch allies of GMA, the two chambers should vote jointly. Seen that way, the Senate, which is independent of the House, would be nothing but a mere cog with virtually no influence whatsoever. That is, of course, not what the framers of the 1987 Constitution intended when they deliberately made the Congress bicameral.

The Constitution may be silent on the question at hand—whether the House and the Senate vote jointly or separately—but a “structural interpretation” could shed light on the debate.

In his column in the Philippine Daily Inquirer, constitutionalist Fr. Joaquin Bernas, S.J. said “that the vote required is three-fourths of all the members of the Senate and three-fourths of all the members of the House taken separately.” The reason being that “Congress is bicameral and a bicameral body votes separately.” Fr. Bernas added:

When the Constitution wants the two houses to vote jointly, the Constitution says so. This it does when Congress is authorized to override a declaration of martial law. And even when Congress can act only in joint session, as it is the case when called to declare the existence of a state of war, the Constitution still commands that they vote separately. Similarly, under the 1935 Constitution, when Congress could propose amendments only if assembled in joint session, the Constitution commanded that they vote separately.

The reason for separate voting is simple: voting jointly, unless authorized as an exception by the Constitution, destroys the bicameral character of Congress. Thus, the silence of the constitutional text on the manner of voting must be interpreted in the light of the bicameral structure of Congress. Structural interpretation is one of the modes of constitutional construction.

One of the attempts to effect constitutional change comes from Rep. Mikey Arroyo, the President’s eldest son. His is an attempt to amend the Constitution through Constituent Assembly with the Senate and the House voting jointly, not separately.

What the Constitution put asunder let no fools join together.