More on CHED

I once had a kindly superior who, when he wanted to give an admonition, would often preface it with the words “Without reference to the past and looking only to the future . . .”, and then he would drop his bomb. Let that be my preface too for what I am about to write, because, from the reactions I received on my article last week on the “martial law” tendencies of CHED, I gather that I may have stoked a hornet’s nest.

I begin with the structure of CHED as laid out in RA 7722, CHED’s charter. It is not a one man or one woman body. It is a Commission, a collegial body, consisting of a Chairman and four members.

The requirements for appointment to the Commission are fairly demanding. They should be “holders of earned doctorate(s), who have been actively engaged in higher education for at least ten (10) years, and must not have been candidates for elective positions in the elections immediately preceding their appointment. They shall be academicians known for their high degree of professionalism and integrity who have distinguished themselves as authorities in their chosen fields of learning. The members of the Commission shall belong to different academic specialization.”

As if this were not enough, Section 7 of RA 7722 also creates a Board of Adviser "which shall meet with the Commission at least once a year to assist it in aligning its policies and plans with the cultural, political and socioeconomic development needs of the nation and with the demands of world-class scholarship." The Board of Advisers consists of Department Secretaries, the President of the Federation of Accrediting Association of the Philippines (FAAP) and the President of the Fund for Assistance to Private Education (FAPE).

A collegial body makes decisions normally by a simple majority vote. What comes out of the body is the decision not just of one person but of the entire body. A decision of one person, not even of the Chairman, is not a decision at all. Thus, for instance, rules and regulations coming from the body should be, for their validity, collegial decisions.

I make this point because I have been asked if I meant to attribute the “martial law” tendency of CHED, about which I wrote last week, to any particular person. Because CHED is a collegial body I must assume that what I call “martial law” tendency is emanating from decisions of the entire collegial body. If true, considering the demanding qualifications for membership in CHED and considering further the importance of education for democracy, I find it disturbing. If not true, it is even more disturbing, because it would mean that the members are not doing their job. Bato bato sa langit, kung tamaan huwag magalit.

If one examines Section 8 of RA 7722 which contains an enumeration of the powers of CHED, one will see that the powers are given not to any one person but to the Commission as a body. CHED is not any one person's fiefdom. Not even the Chairman is given any special power except, as implicit in the title Chairman, the power to call for and preside in deliberations. Again I must assume therefore that every decree and memo emanating from CHED has been the product of careful deliberation by the Commissioners and, where needed, after consultation with the Board of Advisers mandated by Section 7 of RA 7722. Thus if there is a hue and cry from the rank and file in CHED, as I have been told there is, against what CHED has been doing, it should be addressed to and answered by the officialdom of CHED and not just by one person.

But let me also repeat, as I indicated in my column last week, that as far as private accrediting associations are concerned, CHED has no power whatsoever. Even RA 7722 merely says in Section 14, "Accreditation. - The Commission shall provide incentives to institutions of higher learning, public and private, whose programs are accredited or whose needs are for accreditation purposes." Any intrusion into private accrediting associations is illicit usurpation. If I were a school President, I would simply consign those emanations to my circular filing cabinet.

Finally, I have been trying to figure out where the Chairman and the Commissioners stand in the administrative scheme of the government. Section 6 of RA 7722 says: "The chairman and the commissioners shall have the rank of a Department Secretary and Undersecretary, respectively. They shall receive the compensation and other emoluments corresponding to those of a Department Secretary and Undersecretary, respectively, and shall be subject to the same disqualification."

I am not sure if this means that the Chairman is a Department Head like the other Department Secretaries. If he is, would the principle of "qualified political agency" apply to him? The principle says that the heads of departments are alter egos of the President and the acts performed by them in the ordinary course of their functions are presumed to be the acts of the President unless the President expressly reprobates them. The principle is a vehicle for incriminating the President. However, what makes me wonder if the principle is applicable to the Chairman is the fact that, as I have indicated above, the Chairman has no powers independent of those of the Commission. And certainly the Commission is not a department head.

I should probably leave it that way and refrain from involving the President in the memos and decrees of CHED. Meanwhile, a Blessed Christmas to all and a hassle free New Year!

Send reaction to this article to bernas@admu.edu.ph.

28 December 2009

CHED Attempts "Martial Law" Over Accreditation

There is a raging controversy at the moment between the Chairman of CHED and some presidents of private schools. A recent move of the CHED Chairman attempts to take control of the running of private accrediting associations.

Private accreditation of schools has been in existence in the Philippines for more than fifty years. Accreditation is defined as “a voluntary activity or process leading to the issuance of a certificate of accredited status by an organized body of educational institutions attesting to the quality or standards of a higher education institution or any of its educational programs, and to the effectiveness of the management and operations of the institution offering the program, as exceeding the minimum standards or criteria for government recognition as provided for in this Manual [of Regulations for Private Higher Education]." The Manual also says that accreditation "shall be voluntary in nature.”

Father Antonio Samson, S.J., President of Ateneo de Davao University and President of Philippine Accrediting Association of Schools, Colleges and Universities briefly relates the history of accreditation in the Philippines:

"Originally in 1957 the Philippine Accrediting Association of Schools, Colleges and Universities (PAASCU) was founded as a private cooperative effort among its dozen or so founding member-schools to improve the quality of education with the help of voluntary accreditation. In time, the government, through its Education agencies - Department of Education, Ministry of Education, Culture and Sports (MECS) , Department of Education, Culture and Sports (DECS) and the Commission on Higher Education (CHED) -- recognized the valuable work of PAASCU for improving the quality of education and extended schools by PAASCU various privileges and grants, including levels of curricular and administrative deregulation to autonomous status. This has given PAASCU a well-respected status, in the country as well as in the Asia-Pacific region and the world. After PAASCU, other private accrediting agencies were also established . . ."

Recently, however, CHED assumed the power to prescribe the governing policies, guidelines and requirements on accreditation including such details it may deem essential such as standardized accreditation fees, the composition of accreditors, and other matters internal to the associations.

It is elementary constitutional law that the power of the state over private education is merely one of “reasonable regulation.” Regulation is merely the power of a superior to insure that inferiors are acting within valid laws. Regulation is contrasted with the power of control which s the power of a superior to substitute his judgment for that of the inferior. CHED possesses no power of control yet he is attempting to exercise control.

It is also elementary constitutional law that individuals and groups have the right to form associations and that this right includes the prerogative of determining the direction of the association. CHED now wants to crash into private accrediting associations and dictate what directions they should take and how they should operate.

CHED claims to draw its power to impose its will on accrediting associations from Batas Bilang 232 and its implementing Rules as well as from RA 7722 creating the Commissin on Higher Education (CHED). CHED especially relies heavily on the detailed implementing Rules of Batas Bilang 232. Are these Rules valid?

It is elementary constitutional law that rules and regulations issued by administrative agencies are valid if three conditions are satisfied: (1) there is a law delegating rule making power; (2) the delegating law contains standards for the executive agency to follow; (3) the rules stay within the standards set by the delegating law.

What does Batas Bilang 232 say which the rules purport to implement? All it says is: “Section 29. Voluntary Accreditation - The Ministry shall encourage programs of voluntary accreditation for institution which desire to meet standards of quality over and above minimum required for State recognition.” Where is the delegated power to make rules for private accrediting associations? Where are the standards for the agency to follow?

CHED also relies on Section 8 of RA 7722, the law that gave it birth. Section 8(n) of the law authorizes CHED to “promulgate rules and regulations and exercise such other functions as may be necessary to carry out effectively the purpose and objectives of this Act.”

This leads us to ask what the “purpose and objectives of this Act” are. We find these in Sectiion 2 which contains the policy CHED is to follow: foster and promote affordable quality education; ensure and protect academic freedom; promote and foster continuing intellectual growth, research, effective leadership, promote high-level and middle-level professionals, and the enrichment of our historical and cultural heritage.

If we look at the powers actually given to CHED in Section 8, they have reference to CHED’s interest in the academic programs of educational institutions. Nothing there refers to a power of CHED over how private accreditation associations should be run. The whole law is a recognition of the function of CHED enunciated in Batas Bilang 232 which is to "encourage".

In fact, prior to the current CHED regime, CHED maintained “a policy environment, which enhances the private and voluntary nature of accreditation and protects its integrity . . . ” One naturally wonders what has brought about the current dictatorial tendency, and over private associations which have done so much at no public cost to improve the quality of Philippine education.

21 December 2009

After Martial Law. What?

Now that martial law has been lifted, what issues remain? There are remnants of the martial law declaration that remain to be sorted out.

For one, rebellion and murder charges have been filed. What happens to them? The lifting of martial law does not terminate these charges. Rebellion and murder are crimes under the Penal Code. Prosecuting them is distinct from the government's task of justifying the imposition of martial law.

One question, however, which is still being asked is whether the charge of rebellion absorbs murder such that a rebel can only be convicted of rebellion and not of a complex crime of rebellion with murder. (I was asked this question probably because, as an Inquirer item said, I have been teaching criminal law since 1962 – even when I was not yet a lawyer!) At any rate, the established answer to the question is that rebellion absorbs murder if murder was committed in furtherance of rebellion. However, if murder was committed for a different reason, such as in furtherance of reelection or for other motives, it is a separate crime.

The meaning of rebellion in the Penal Code has been amply discussed in a number of cases decided by the Supreme Court. If the rebellion charges continue to be pursued, I am hoping that there will be a clear statement of the meaning of "armed uprising" as an element of the crime. True, the current jurisprudential literature says that for armed uprising to exist there must be people running around and actual fighting in the streets. But there is also the view that if a known hostile armed group is operating in an area, what matters is not how the hostile forces are deployed but what effect they are achieving; that is, whether in fact they are achieving the aims of rebellion such as depriving the President or the legislature in whole or in part of their powers.

This is also related to the view I expressed that it is not at all clear that rebellion in the Constitution is the same as rebellion needed for conviction under the Penal Code. It is not unheard of for the Supreme Court to give to a word in a law a meaning different from what it gives to the same word in another law. For instance, in at least one decision the Court has said that "defamation, fraud, and physical injuries" in Article 33 of the Civil Code are not the same as the same words in the Penal Code. I am almost certain that there are other examples.

Could the same be said of rebellion in the Penal Code and rebellion in the Constitution? After all, the two laws have different objectives. The Penal Code seeks to deter and punish; the Article VII, Section 18 of the Constitution seeks to maintain public safety. We have had decisions defining the meaning of rebellion in the Penal Code as involving massive movements, but none regarding rebellion in the Constitution. In the one instance that martial law was declared under the 1935 Constitution, our Court merely yielded to the judgment of the President. Moreover, in political and historical literature, rebellion is presented as a wide spectrum of varying levels of disturbances.

With martial law lifted, however, there will be no occasion to discuss this academic issue.

Incidentally, and this is now probably also an academic matter, I have also maintained that the power of the Supreme Court over a declaration of martial law is more limited than that of Congress. Aside from being able to interpret the meaning of rebellion, the Court can only review “the sufficiency of the factual basis of the proclamation.” The Court cannot determine whether the choice of martial law is the correct solution to a factual situation.

Congress has a broader power. Even if the factual basis for the proclamation is sufficient, Congress may still revoke the President's decision. The Constitution does not limit the grounds upon which Congress may base revocation. However, the vote needed is a majority of all the members of Congress voting jointly. This does not seem to be easy of achievement in the present Congress.

But what is the reason for requiring joint voting? My recollection of the deliberations of the Constitutional Commission is that the thinking was that the House of Representatives would be more libertarian than the Senate and thus would be more likely to go against a President with authoritarian tendencies and, by superior numbers, would be able to revoke martial law. But as someone has said, the wisest plans of mice and men have gone awry!

There is also the speculation that the President might save her Ampatuan allies through amnesty. In fact, this is not the only speculation circulating about what the President might do! Indeed, the fact of the matter is that under the power of executive clemency the President can grant amnesty generally to political offenders, but only with the conformity of a majority of all the members of Congress. As to pardon, the President has almost unlimited discretion to grant pardon, but only to those who have been convicted by final judgment.

Finally, in a situation of martial law, there are quite a number of legally disputable matters. To my mind, however, one thing is certain, namely that the intensity of the opposition to martial law today and the abundance of dire speculation are due to a great extent to the fact that the President does not enjoy high credibility. And her decision to run for the House of Representatives has not served to enhance her credibility.

14 December 2009

PGMA's Martial Law

The massacre in Maguindanao has presented to the administration the challenge of having to find a solution that is at the same time constitutional and effective. The incident raises the question whether the 1987 Constitution, admittedly a reactive document, has armed the government with enough powers to deal with extraordinary challenges to peace and order and the protection of human lives.

I believe that the government will have to look for the solution to the problem within the parameters of the President’s Commander in Chief powers. These consist of three powers of graduated intensity: to call on the Armed Forces to suppress lawless violence or rebellion; to suspend the privilege of the writ with respect to specific crimes; and to impose martial law over the Philippines or over any part thereof.

Of these the most easily available is the power to call on the Armed Forces. But I am not surprised that the President has chosen the martial law option together with the suspension of the privilege of the writ. Who can reverse the President?

The Supreme Court can, so the new Constitution says. Martial law must be premised on the existence of public necessity brought about by actual rebellion or invasion. Hence the question that must be asked is whether rebellion exists. And what is rebellion?

The Penal Code says: “The crime of rebellion . . . is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

If the Penal Code is to be followed, the government would have to show that what is happening now satisfies the definition of rebellion as a criminal act. A crucial fact to verify would be whether there has been and there is an ongoing “rising publicly and taking arms against the Government” to achieve at least one of the enumerated goals.

But is rebellion as a criminal act defined in the Penal Code the same as rebellion for constitutional law purposes? My view is that it is not. My view is that the requirement of “rebellion” for purposes of constitutional law is satisfied if there exists an armed force whose activities have the effect of preventing the government from implementing its laws in any part of the Philippines?

Aside from the Supreme Court, Congress can also revoke the presidential proclamation by a majority vote of all the members of Congress in joint session assembled voting jointly.

But even if the requirement of rebellion is verified and thereafter martial law is declared in the lawless areas, the government will still have to contend with the safeguards introduced by the 1987 Constitution. These are safeguards inspired by the nation’s experience under martial rule. The 1987 Constitution now says: “A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”

As for the suspension of the privilege of the writ, it can only be justified by the existence of the same factual situation that can justify martial rule. Moreover, suspension of the privilege has also been subjected to limitations by the 1987 Constitution which now says: “The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

A conclusion that can be drawn from all these is that the 1987 Constitution manifests great reluctance to allow the activation of martial law powers and of the power to suspend the privilege of the writ.

But it is not as if the Constitution has tied the hands of government in the face of lawlessness of the magnitude of the Maguindanao massacre and the political culture that has given rise to it. The Commander in Chief still has the ordinary executive power and the extraordinary power to call on the Armed Forces to suppress lawlessness.

The power to utilize the help of the Armed Forces is available now. Clearly, there has been lawless violence. Moreover, indications are that the threat of more lawless violence exists.

Recent jurisprudence, however, has clarified that, although the President can call on the help of the Armed Forces to accomplish what is essentially the peace and order task of the National Police, the act of calling on the Armed Forces gives her no new powers for carrying out law enforcement. For instance, it gives her no power to make arrests without warrant except in those instances where warrantless arrests are allowed. Nevertheless, the “calling out” power, in the hands of a skillful President, is still a potent weapon.

To fully utilize this power, however, she will need determined political will and the vigorous cooperation of the judiciary. Unfortunately, there seem to be reports that the government is desperately in search of judges who have the courage to issue warrants and prosecutors who can act where needed even in the face of threats to them or their loved ones.

In the face of all this, the President has chosen the martial law option. I do not see either the Supreme Court or Congress revoking her decision now. Moreover, if she asks for it, Congress can extend martial law beyond sixty days.

Meanwhile the nation will be watching how she exercises the flexible martial law powers which, as experience tells us, can easily be abused.

7 December 2009

Denying Holy Communion

I already wrote about this more than a year ago but, as election campaign again approaches, potential candidates who value their Catholic affiliation are asking about the same matter. It is no secret that some politicians do not agree with moral positions taken by some bishops and understandably they are concerned about what their bishio might do to them. Let me therefore rehearse what I said earlier.

What is the church law on this subject? I do not profess to be an expert in Canon Law. But what I have to say is what I myself follow. And when I first wrote about this, no Canon lawyer nor any bishop contradicted me. That probably says something.

Canon 915 of the Code of Canon Law enumerates three categories of persons who should be refused Holy Communion,: (1) those excommunicated through a penalty that has been imposed or declared; (2) those interdicted through a penalty that has been imposed or declared; (3) those who “obstinately persist in manifest grave sin.” Some explanation is necessary

First, what is the difference between an excommunicated person and an interdicted person? In general, an excommunicated person is excluded from the public life of the church. This would include holding church office or receiving the sacraments. An interdicted person, on the other hand, is one who is excluded only from certain liturgical functions.

How does one incur the penalties of excommunication or interdiction? According to church law, there are two ways of incurring a penalty: (1) automatically (or in church jargon latae sententiae) upon the commission of certain external acts clearly and specifically defined by law, and (2) upon the intervention of a competent ecclesiastical authority who declares officially and in legal form that a penalty has been imposed (ferendae sententiae).

What is important for purposes of refusal of Communion under Canon 915 is that the excommunication or interdiction must have been incurred not automatically but through an official imposition or declaration (ferendae sententiae). This means that to be legitimately refused Communion under Canon 915 there is need for a competent church authority (a bishop, a judge of an ecclesiastical court, a superior with respect to his subject through an extrajudicial or administrative act) to have issued a public instrument declaring that a penalty of excommunication or interdiction has been incurred by or imposed on a person. This should be a relatively rare case and would normally also be highly public and notorious.

The third category of persons who may be refused Communion under Canon 915 are those who “obstinately persist in manifest grave sin.” As one Canon lawyer wrote, “The description of the third category is bristling with qualifications; not ordinary run-of-the-mill sinners but sinners who persist; they do not merely persist, they obstinately persist; the sin is not only a grave sin, but one that is manifestly so.” In general, it would seem that such a case would be relatively rare. If I were a bishop, which I will never be, I would not be too eager to find a case fulfilling all these stiff requirements.

Usually placed under this category are people who may be cohabiting without benefit of the sacrament of marriage, or people who may have been divorced and are now living together on the strength of a civil marriage. One reason for excluding them is the fear that admitting them would give the impression that the Church is changing its teaching on the indissolubility of marriage.

But whether or not to exclude from Communion people in such marital relations is not always clear. There has been disagreement about the meaning of this third category. The disagreement has been around whether the subjective element of full knowledge and full consent, which is required for mortal sin, should also be considered for purposes of Canon 915. After all full knowledge and full consent are internal and beyond the knowledge of the minister administering Communion.

The authentic interpretation now seems to be that grave sin in Canon 915 is not the equivalent of mortal sin. Mortal sin requires full knowledge and consent which are known to the sinner himself but not to the minister who administers communion. For this reason the term “publicly unworthy” expresses better what is meant by persons who “obstinately persist in manifest grave sin.” The focus is on the external element of the act which can be known by the minister who administers communion. In other words, those excluded from communion must be “notorious public sinners.”

It should be remembered, moreover, that denial of communion is a restriction of a right. Hence, I would interpret the Canon strictly. Communion should not be denied if there is any doubt as to the fact of the sin, as to its notoriety or gravity, or as to the possibility that the person may have already been reconciled with the Church. Avoidance of scandal, after all, is not the supreme law of the Church. For my part, I would prefer a pastoral and not a confrontational approach. It must be kept in mind that church penalties are not intended to humiliate but to bring a person around to sorrow and contrition for sin.

Having said all that, I might be asked whether I would deny communion to legislators favoring the controversial bills on reproductive health. Let me just say that bishops themselves do not have a unanimous voice on the subject. I myself would not say that what legislators are doing now in a pluralist society is a manifestly grave sin enough to characterize the legislators as “notorious public sinners.”

30 November 2009

When Churchmen Campaign

How is one to take the action of churchmen who hold positions of authority when, from the pulpit or through official pronouncements, they threaten politicians who support positions not to their liking with a church organized campaign against them in the 2010 elections? This can happen, for instance, against legislators who support the House Bill 5043, commonly known as the Reproductive Health Bill (RH Bill).

As election time approaches, legislators or potential legislators who support the Bill, may find themselves or will find themselves threatened by what might be called a “Catholic vote” – even if I myself do not believe that such a phenomenon exists.

There are two legitimate ways of looking at pressure from churchmen in the context of the House Bill 5043.

The first is the constitutional approach. The pressure position taken by some churchmen is supported by their constitutional right to the free exercise of religion and freedom of expression. They have every right to propagate what they believe to be morally correct, even if they might be wrong. I have always maintained that when a person becomes a cleric or a bishop, he does not thereby surrender his rights as a Filipino citizen. He even retains his right to make a fool of himself.

Constitutionally, I would even defend their right to pressure legislators who do not agree to follow their dictates under threat of loss of votes. The scope of allowable political persuasion is broad enough to accommodate tactics short of violation of the Penal Code or of the penal provisions of the Election Code. Such behavior would be less objectionable than earlier church tactics such as the burning of heretics at the stake. But the two methods are relatives.

As a churchman myself living ages away from the culture of the Middle Ages, I would offer arguments why a churchman should not use the pressure approach. Let me summarize my reasons. I have also borrowed some points made by a colleague of mine who has written more extensively about the subject.

First, the Catholic Bishops Conference of the Philippines in their Second Plenary Council warned pastors that “to take active part in partisan politics, in the wheeling and dealing it entails, would tend to weaken their teaching authority and destroy the unity they represent and protect.” And as one high ranking official has also said, to dictate to parishioners whom to vote for or not vote for is “as bad as buying their votes.”

Unfortunately, in 2007, the CBCP, while unwilling as a body to endorse or disapprove national candidates, expressed its willingness to see individual bishops endorse or denounce candidates for locally elected positions.

When a bishop does this from his position of authority and in official pronouncements, the inevitable conclusion that can be drawn is that the act is a partisan political intervention by the Church as an institution. This goes in the opposite direction of the 1998 CBCP Catechism on Church and Politics which denied the existence of a “Catholic vote.” One cannot fail to see that a bishop-initiated campaign against a political candidate effectively suggests what a Catholic vote should be. Such a campaign would tend to undermine episcopal teaching authority and destroy the unity it professes to represent and protect.

Another point I would make is that members of the laity and of the voting public are not mindless automatons. They are intelligent beings who under God are governed by the primacy of conscience. Indeed, the Church has a duty to help a person form his or her conscience when choosing among electoral candidates; but helping him or her to form conscience is different from imposing on a person the choice of whom to vote for. Recently, for instance, when in Charleston South Carolina a pastor told his parishioners that any person who votes for Obama should go to confession before receiving communion, he was rebuked by his own bishop.

The Congregation for the Doctrine of the Faith has put it succinctly. It declared that "the Church's Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding ‘contingent questions.’ Instead, it intends — as is its proper function — to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good.”

Clearly, House Bill 5043 is a very controversial piece of legislation involving “contingent questions.” Having studied it myself, I find myself unable to agree or disagree with it totally. It is a mixed bag, and even if it becomes law, controversy will continue to swirl around it. I would leave it to the conscience of individual legislators and voters how they should deal with the “contingent question” arising from the Bill.

Finally, the use of pressure on voters, even for religious reasons, is not much different from shot-gun or money politics. When religious leaders use pressure politics, they serve to perpetuate bad politics. There is now a loud clamor for an end to traditional politics. Pressure politics is traditional politics.

When the smoke of political battles have cleared, an important task will be unification and cooperation in the promotion of the general welfare. Those who have aligned themselves with the practitioners of pressure politics will find themselves diminished in their capacity to contribute to the task. It would be unfortunate if bishops who have an important role to play in the progress of our country will find themselves sidelined because, unable or unwilling to debate, they have chosen to dictate instead.

23 November 2009

The Failed Takeover Threat

It will not happen now; there will be no takeover of the oil industry. But let us look at the two provisions in law which have been cited or hinted at as possible justification for a takeover.

The first is Section 17 of Article XII of the Constitution which says: "In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest."

The second is Section 14(e) of the Oil Deregulatin Law, which is a faint imitation of the constitutional provision. It says: In times of national emergency, when the public interest so requires, the DOE may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any person or entity engaged in the Industry."

To understand the import of these provisions it will help to trace the lineage of the constitutional provision. The Oil Deregulation Law provision is obviously just an attempt to apply the constitutional provision to the oil industry.

The constitutional provision deals merely with the temporary state take over of "the operation of any privately owned public utility or business affected with public interest." It is not authority for outright confiscation. But it is important to note that the provision was first introduced as Section 7 of Article XIV in the 1973 Constitution. It read: "In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." It was a product of the prevailing "martial law" thinking of the 1971 Constitutional Convention.

At the time of the approval of this provision, Letter of Instruction No. 2 of President Marcos dated 22 September 1972 was in effect. The Letter instructed the Secretary of National Defense, Juan Ponce Enrile, to take over "the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency."

It is therefore no surprise that Senator Enrile has been reported as saying that the government can takeover the operation of oil distribution.

The Marcos Letter of Instruction was among the executive acts which the Convention wanted transformed into a constitutional provision through Section 3(2), Article XVII of the 1973 Constitution. It was thus clear that in the mind of the Convention the power, as granted under the 1973 Constitution, could be exercised by the executive arm of the government. And it was for the executive arm to decide whether "national emergency" and "public interest" demanded the temporary take over.

It should also be noted that when Congress grants emergency powers to the President under Section 23(2), Article VI of the present Constitution, the powers cease upon the next adjournment of Congress unless sooner withdrawn by Congress. Under Section 17, however, no time limit is placed on the duration of the emergency take over. While the takeover would be temporary, the duration of the take over would be discretionary with the power that imposed it.

To repeat, Section 17 is a child of martial law born at a time when Congress had been scuttled! Section 14(e) of the Oil Deregulation Law, however, is an attempted of Section 17 even while Congress exists.

What is the status of Section 17 today? On the correct interpretation of Section 17 of the Constitution will depend the interpretation of Section 14(e) of the Oil Deregulation Law.

Section 17 deals with public utilities and "business affected with public interest." The oil industry is not a public utility but most certainly it is a business affected with public interest.

An important matter is the nature of the "emergency" that can justify takeover and the seat of the power that can declare the emergency. The emergency can be external aggression, internal conflicts, natural or man-made calamities or disasters. But who declares the emergency that can trigger the temporary takeover? Can Malacañang do it?

Section 17 is unclear on this matter and there is no authoritative judicial interpretation of the provision. The best we have is an obiter dictum in a 2006 decision which says that the power given by Section 17 is activated only when Congress grants emergency powers to the President under Article VI, Section 23. The Court said that Section 17 must be read with Article VI, Section 23 because Section 17 gives the power to the State and not to the President. The President acquires emergency powers when given to her by Congress in a state of emergency declared by Congress. Corollarily, therefore, Section 14(e) of the Oil Deregulation Act must await an emergency declaration by Congress.

I subscribe to this interpretation. The takeover of public utilities and business affected with public interest is too radical an action to be loft solely to the discretion of the President or of a Department Secretary. It is an entrenched doctrine, after all, that police power is activated only by legislative authorization.

16 November 2009

Congresswoman or VP Arroyo?

In the light of the much talked about rumor of President Arroyo planning to run for a seat in the House of Representatives, someone asked me why we in the Constitutional Commission did not include in the Constitution a prohibition imposed on a sitting President not to run for a lower office. The only answer I could give was that no one of the Commissioners (not me, anyway) thought that a sitting President might be so humble as to seek a lower position.

And since there is no such prohibition, may she run for a seat in the House? For that mater, may she run for Vice-President, as some are suggesting now?

My position on constitutional matters is that what is not prohibited, whether expressly or implicitly, is allowed. The only constitutional prohibition I know on one who has been once elected President is that he or she may never run for election to the same office a second time. And since the right to aspire for office is itself an important constitutional right, any restriction on the right must be interpreted strictly and narrowly. The prohibition is only against running for the presidency a second time. Hence, GMA may not run for President again (unless the Constitution is amended to allow her or others in her position to do so), but she can even run for Barangay Tanod, should humility drive her to do so. It is for the electorate to decide whether to allow her to so abase herself.

Premature Election Campaign

Still simmering is the controversy over premature campaigning. The confusion arises from Sections 68, 79{a) and 80 of the Omnibus Election Code. Section 80 says: “It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period . . .” And according to Section 68 any candidate who is found by the Commission on Election to have violated the provision “shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.” Moreover, a candidate is defined by Section 79(a) as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

From the above it can be seen that to commit an act that will subject a person to disqualification, that person must be a candidate, that is, one “who has filed a certificate of candidacy.” Thus, if a private person campaigns outside the campaign period but does not become a candidate, he has done nothing wrong. But if later he files his certificate of candidacy, the earlier act of the private person becomes, according to the Court, the act of the private person-turned candidate.

This is how eight Justices (with seven dissenting) have read the law. But this seems to me like ex post facto hocus pocus -- a person is penalized for having exercised freedom of expression!

5% “Campaign Contribution Tax”

I have enclosed “campaign contribution tax” in quotation marks because I am trying to figure out what the real nature of the tax is.

The first point to remember is that, except for the power to impose “tariff rate, import and export quotas, tonnage and wharfage dues and other imposts or duties” which Congress migh give to the President, taxes of any kind come from Congress. Is what is being called a campaign contribution tax something that has come from Congress or is it an illicit imposition being made by the BIR?

The way I understand the BIR’s explanation is that it is an application of an old withholding tax provision in the Internal Revenue Code which says “The Secretary of Finance may, upon the recommendation of the Commissioner, require the withholding of a tax on the items of income payable to natural or juridical persons, residing in the Philippines, by payor-corporation/persons as provided for by law, at the rate of not less than one percent (1%) but not more than thirty-two percent (32%) thereof, which shall be credited against the income tax liability of the taxpayer for the taxable year.”

Seen this way, it is not the politician or a political party that pays the tax but the person who is the politician’s or party’s source of contribution. Admittedly, however, the politician or the party will receive 5% less to spend!

True it is that the withholding tax provision has been there all along. But, to the best of my knowledge, it is only now that it is being applied to election campaign context. And since this imposition is being done for the first time as we approach what is developing to be a fascinating election, one naturally wonders what gave birth to this bright idea. We shall be hearing more about this.

Incidentally the same Internal Revenue Code, in the Section on Rates of Tax Payable by Donor, says that “Any contribution in cash or in kind to any candidate, political party or coalition of parties for campaign purposes shall be governed by the Election Code, as amended.” Does this have any relevance to donations specifically made for election campaign?

9 November 2009

CJ Puno in Context

A recent political ad carried this truncated quotation from Chief Justice Reynato Puno: ". . . the better policy approach is to let the people decide who will be the next President. For on political questions, this Court may err but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to elect in behalf of the people."

The clear suggestion of the quotation is that constitutional requirements must yield to popular vote. Is that what Chief Justice Puno meant?

Justice Puno is in no position to answer the question now, but the Supreme Court spokesperson has said, presumably with authorization of Puno, that his statement must be read in context. I shall therefore try to read it in context.

The cited case was about Fernando Poe, Jr whose qualification for the presidency had been challenged on the ground that he was an illegitimate son of a Filipino father by an alien mother. The argument was that an illegitimate child follows the citizenship of the alien mother. Puno's reading of the Constitution and of jurisprudence on citizenship, however, was correct: what determines Philippine citizenship of an illegitimate child is the citizenship of the father provided that paternity is clear. For Puno, Poe's Filipino paternity was clear. Hence, he had no hesitation in affirming that Poe, Jr was a natural born Filipino citizen qualified to run for the presidency.

Puno also recognized that in evaluating the suitability of a candidate for the office being sought, the Supreme Court is guided only by the Constitution. The Court does not pay attention to constitutionally "irrelevant impediments" such as, to quote Puno's Prologue, "the disapprobation of political loyalty in our temples of justice, elimination of all invidious discrimination against non-marital children."

It is a different matter, however, for voters. Even if a candidate is constitutionally qualified, he may yet be rejected by the electorate. Voters look for other values than those that are enumerated among the qualifications for President and will consider even those which are constitutionally "irrelevant impediments."

Now to the quotation in the ad. It has been snipped from the Epilogue of Justice Puno to his separate opinion in the Poe case. The complete Epilogue says: "Whether respondent Fernando Poe, Jr. is qualified to run for President involves a constitutional issue but its political tone is no less dominant. The Court is split down the middle on the citizenship of respondent Poe, an issue of first impression made more difficult by the interplay of national and international law. Given the indecisiveness of the votes of the members of this Court, the better policy approach is to let the people decide who will be the next President. For on political questions, this Court may err but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to elect in behalf of the people."

How "indecisive" was the Court? Puno was the only justice who categorically held that Poe possessed the citizenship qualification. Three others held that Poe was not qualified; but the majority held that the issue of citizenship could only be definitively settled in an "election contest" should Poe win in the election. Puno, therefore, had to concede to what the majority wanted, namely that the voters must first act before the Court could pass on constitutionality. Thus he said, "Given the indecisiveness of the votes of the members of this Court, the better policy approach is to let the people decide who will be the next President."

But Puno himself was of the thinking of Justices Carpio and Tinga who categorically wanted the citizenship issue settled before the elections, contrary to what the majority wanted. Justice Carpio said, "The conduct of an election necessarily includes the initial determination of who are qualified under existing laws to run for public office in an election. Otherwise, the Comelec’s certified list of candidates will be cluttered with unqualified candidates making the conduct of elections unmanageable.”

More picturesquely Justice Tinga put it thus: "Let the people decide" is "the battle cry of those among us who opt to take the path of least resistance – to let the sovereign will chart the course of the Philippine political landscape. That argument is also a malaise, whether caused by academic sloth, intellectual cowardice or judicial amnesia, which has unfortunately plagued this Court. It is an easy cop-out that overlooks the fact that the Constitution is itself an expression of the sovereign will. The Filipino people, by ratifying the Constitution, elected to be bound by it, to be ruled by a fundamental law and not by a hooting throng."

Tinga added, "I harbor no pretensions of being wiser than our people when it comes to political questions. The questions raised, however, are not political but legal, and the people, by the same Charter to which they bound themselves, have reposed upon the members of this Court a duty to perform and an oath to uphold, to answer the hard legal questions and to blaze new trails in jurisprudence. . . . I see no reason why the Court should shirk from its constitutional obligation and allow the electorate to squander its votes on an ineligible candidate."

Briefly, therefore, as the sovereign people themselves have decided when they ratified the Constitution, whether a person is qualified to become President or not is decided not by ad hoc popular vote but by the Supreme Court.

2 November 2009

Of Abdication and Ballot Secrecy

Two of the main legal objections against the automation being implemented by the Comelec was that, first, it constituted a wholesale abdication of the poll body’s constitutional mandate for election law enforcement and, second, that the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot.

How did the Court deal with these arguments?

The claim of petitioners was that by acceding to Art. 3.3 of the automation contract, Comelec relinquished supervision and control of the system to be used for the automated elections. They deduced loss of control from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair. But note the following exchange:

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this loss of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system?

ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted.

CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys?

ATTY. ROQUE: Yes, Your Honor.

The Court was not convinced. The abdication argument, the Court, said was a simplistic conclusion. “The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties’ true intention. It is a study of outsiders appearing to know more than the parties do, but actually speculating what the parties intended.”

Note also the following exchanges:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control?

ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract ….

CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they forfeited their power of control in over our election process?

ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.

As to the control of public and private keys, the Court noted that initially petitioners were “cocksure” about this. But on further questioning their answer manifested a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx.

The speculative nature of the argument of petitioners became clearer later:

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

x x x x

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x.

CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?

On the matter of ballot secrecy, this is what the Court said:

“Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known.”

Finally, what I find refreshing about the Court’s decision is that it did not attempt to substitute its judgment on technical matters for the judgment of the officials charged with the responsibility to make that judgment. It limited itself to verifying what the Automation Law demanded. True it is that the Court can nullify the acts of executive officials who have committed grave abuse of discretion amounting to lack or excess of jurisdiction. But the Court will not easily attribute grave abuse of discretion to an independent body like the Comelec on a matter over which the independent body has the mandate and expertise.

14 September 2009

Of Abdication and Ballot Secrecy

Two of the main legal objections against the automation being implemented by the Comelec was that, first, it constituted a wholesale abdication of the poll body’s constitutional mandate for election law enforcement and, second, that the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot.

How did the Court deal with these arguments?

The claim of petitioners was that by acceding to Art. 3.3 of the automation contract, Comelec relinquished supervision and control of the system to be used for the automated elections. They deduced loss of control from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair. But note the following exchange:

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this loss of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system?

ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted.

CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys?

ATTY. ROQUE: Yes, Your Honor.

The Court was not convinced. The abdication argument, the Court, said was a simplistic conclusion. “The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties’ true intention. It is a study of outsiders appearing to know more than the parties do, but actually speculating what the parties intended.”

Note also the following exchanges:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control?

ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract ….

CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they forfeited their power of control in over our election process?

ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.

As to the control of public and private keys, the Court noted that initially petitioners were “cocksure” about this. But on further questioning their answer manifested a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx.

The speculative nature of the argument of petitioners became clearer later:

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

x x x x

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x.

CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?

On the matter of ballot secrecy, this is what the Court said:

“Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known.”

Finally, what I find refreshing about the Court’s decision is that it did not attempt to substitute its judgment on technical matters for the judgment of the officials charged with the responsibility to make that judgment. It limited itself to verifying what the Automation Law demanded. True it is that the Court can nullify the acts of executive officials who have committed grave abuse of discretion amounting to lack or excess of jurisdiction. But the Court will not easily attribute grave abuse of discretion to an independent body like the Comelec on a matter over which the independent body has the mandate and expertise.

14 September 2009

Two Views on Premature Campaigning

Two Views on Premature Campaigning

A recent decision of the Supreme Court has begun to have a discombobulating effect on candidates and political parties. The justices split in a sharply divided decision, 8-7. The majority said, Yes, dear aspiring candidates, the prohibition of premature campaigning is very much alive and can cause your disqualification. The minority for its part said, No the law has been amended and it is now impossible for anyone to commit the offense of premature campaigning.

When one considers that more justices will be replaced before the year ends, one reaction might be to ask how a reconstituted Supreme Court might decide a similar issue in the next few months. Changes in Court membership can change a precarious balance of votes on any issue.

It all started when an aspiring municipal mayor on the day she registered her certificate of candidacy had herself accompanied by a motorcade around various barangays, complete with banners and balloons. Unfortunately for her the motorcade took place one day before the allowable campaign period. She won the election, but only to be disqualified for having prematurely campaigned.

The majority decision was based on Sections 68, 79{a) and 80 of the Omnibus Election Code. Section 80 says: “It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period . . .” And according to Section 68 any candidate who is found by the Commission on Election to have violated the provision “shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.” Moreover, a candidate is defined by Section 79(a) as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

From the above it can be seen that to commit an act that will subject a person to disqualification, that person must be a candidate. Thus, it is important to determine who is considered a candidate. Section 79(a) says that a candidate is “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

The dissenting opinion, however, contends that the definition of a candidate has been changed by an amendatory provision in R.A. 9369 which says: “Any person who files his certificate of candidacy within this period shall only be considered as a candidate at the start of the campaign period for which he filed his certificate of candidacy.” Thus, according to the dissent, to make a person a candidate subject to disqualification two elements are required: first, he must file his certificate of candidacy; and second, the campaign period must start. Therefore, acts committed before the campaign period starts are within the realm of a citizen’s protected freedom of expression; acts during the campaign period are legitimate. Because of this, the dissent concludes, the election offense in Section 80 of the Omnibus Election Code is practically impossible to commit at any time.

That should make the sponsors of infomercials rejoice. But not too fast! The majority of eight insists that the laws on premature campaigning has not changed. Principal reliance of the majority is on a rule in statutory construction which disfavors implied repeal. The ponencia says: “Well-settled is the rule in statutory construction that implied repeals are disfavored. In order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character. The language used in the later statute must be such as to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short of that standard does not suffice.”

To the argument that prior to the campaign period the person is not yet deemed a candidate, the ponencia replies: “When the campaign period starts and said person proceeds with his/her candidacy, his/her intent turning into actuality, we can already consider his/her acts, after the filing of his/her COC and prior to the campaign period, as the promotion of his/her election as a candidate, hence, constituting premature campaigning, for which he/she may be disqualified.”

This argument seems to me analogous to ex post facto magic. He committed no offense when he performed the act, but he became guilty later by operation of law.

For the dissenters, however, there is no call for statutory construction because the provision “is crystal clear in its meaning.” But the ponencia sees no clarity in it. “There would only be no need for statutory construction if there is a provision in Republic Act No. 8436 or Republic Act No. 9369 that explicitly states that there shall be no more premature campaigning.” The ponencia sees no such explicit declaration.

What is obvious to me in all this is that both sides are firm in their reading of the law. If I were a candidate or an aspiring candidate, I would feel more secure living and acting under the law if the decision had been less shaky than an 8 to 7 majority.

21 September 2009

Drug Testing for Candidates

Last year the Supreme Court declared unconstitutional portions of the Compulsory Drug Testing Law and upheld others. Now there seems to be an ongoing discussion of the precise scope of what the Supreme Court said. Specifically did the Supreme Court say that drug testing for local candidates was also unconstitutional?

To me, what was clearest in that decision was that requiring candidates for national office to undergo drug testing as a basis for allowing their candidacy would violate the Constitution. The Constitution enumerates the qualifications for President, Vice-President, Senator and Representatives. The understanding has always been that the enumerated qualifications are exclusive.

It is a different matter, however, when it comes to local elective officials. The Constitution prescribes certain qualifications for them but also leaves to Congress the power to prescribe additional qualifications. Congress does this through the Local Government Code. Moreover, another Supreme Court decision of last year seems to suggest that any change in the structure of local governments must be done through the Local Government Code and not through any other law.

Although the provision on drug testing of local government candidates is found in a law which makes no reference to the Local Government Code, it may be legitimate to see it as an attempt to amend what the Local Government Code has to say about qualifications. But since any act of Congress can be subjected to a constitutional test, it is legitimate ask whether drug testing for local candidates is constitutional. And, more importantly, did the Supreme Court decision of last year already declare it to be unconstitutional?

The Court had specific arguments about drug testing for candidates for national office, for students, for employees in private and public offices and for persons charged with a criminal office; but it said nothing about drug testing for local candidates. The Comelec, however, has concluded that drug testing for local candidates is unconstitutional. Could it be that unconstitutionality can be deduced from the arguments regarding the other subjects of drug testing?

We can begin with what the Court said about drug tests for candidates for national office. The Court said that this was unconstitutional because drug testing was in effect being imposed as an additional qualification over and above the exclusive list prescribed by the Constitution. The Court said, “It ought to be made abundantly clear that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.” This argument, however, cannot be used to show the unconstitutionality of drug test for local candidates because the Constitution does not impose a similar exclusive list of qualifications for local elective officials.

As to those charged with a criminal offense, the Court reprobated the mandatory character of the requirement. “To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons’ right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.” This argument, likewise, cannot be used against drug tests for local candidates since they are not persons charged with a crime.

As to students, the Court justified random drug testing by borrowing from two American Supreme Court decisions. “In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.” Local candidates, however, are not persons under in loco parentis authority.

The Court also found random testing of employees as justifiable. The Court rejected the argument that it was violative of privacy right. “The essence of privacy is the right to be left alone. In context, the right to privacy means the right to be free from unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way as to cause humiliation to a person’s ordinary sensibilities. . . . Authorities are agreed though that the right to privacy yields to certain paramount rights of the public and defers to the state’s exercise of police power.”

Mandatory drug tests for local candidates, however, cannot be justified through the arguments used for students and employees. For one they are not students under in loco parentis authority. For another, unlike employees, they are not yet in a position to do harm through misuse of office because they still have to be screened by voters before they can hold office. Besides, the intended test was not meant to be randomized but obligatory for all. Drug tests for them therefore would not pass the test of reasonableness which the Court used for students and employees.

Having said all that, however, I would have wished that the Court had specifically discussed drug tests for local candidates.

28 September 2009