Tuesday, November 24, 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

Wednesday, November 18, 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 Malaca├▒ang 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

Fiddling with the colors and rays of the Flag

Fiddling with the colors and rays of the Flag

One provision of the Constitution which has remained unchanged over the years is the description of the Philippine flag. It says: "The flag of the Philippines shall be red, white, and blue, with a sun and three stars, as consecrated and honored by the people and recognized by law."

These words were first etched in the Constitution, on the basis of existing tradition, during the deliberations of the 1934-1935 Constitution Convention. The original draft set the order of the colors as "white, red and blue." But someone suggested the order "red, white and blue" on the argument that students had learned to memorize the colors in that order as set in a popular limerick. And so "red, white and blue" it had to be; and the exact words of the 1935 Constitution have remained. It remained that way under the 1973 Constitution and now in the 1987 Constitution. (But the display of the flag was banned during the Japanese occupation.)

Attempts in the 1987 Constitutional Commission to return to the order "white, red and blue" or "blue, white and red" failed. In jest, it was Commissioner Azcuna who had proposed starting with blue because of the Ateneo colors! Nobody proposed "green!"

Colors, however, have not been the only items that have received attention. A recurring suggested change has been the addition of one or two more rays to the sun in the flag. As it stands today, the sun is presented as having eight rays. Historical tradition says that the eight rays represent the original eight provinces which rose against Spain. These provinces, Manila, Bulacan, Pampanga, Tarlac, Batangas, Laguna, Cavite and Nueva Ecija, were identified in a decree of Governor General Ramon Blanco placing them under martial law.

On commission level, during the deliberations of the 1987 Constitutional Convention, there was a suggestion to add two more rays to represent the Cordilleras and Muslim Mindanao. This was not accepted.

For some time too Zambales officials pushed for the addition of a ray to represent the province of Zambales. This was supported by a resolution of the Zambales Provincial Board on the basis of a decree issued by Governor General Camilo Polavieja which suspended elections and declared a state of emergency in some provinces including Zambales. But the National Historical Institute did not consider this sufficient to justify the addition of another ray for Zambales.

The latest brainchild has been that of Senator Gordon suggesting another ray to represent Mindanao. No clamor has arisen in support of this. But it does bring up an important question: If change there must be, how can a change in the design of the flag be achieved?

Incidentally, the precise description and specification of the details of the flag were set by President Quezon through Executive Order No. 23 dated March 25, 1936. Quezon's desire was to achieve consistency in the fashioning of flags pursuant to the constitutional provision and Act No. 2928. The E.O. was very specific about every element in the flag. On the design of the sun, for instance, the E.O said: "Solid golden sunburst without any markings - Sun with eight rays, equally spaced; Arc x with Sun ray = Free arc y; two opposite rays in horizontal axis and two in vertical axis; sun's diameter D = W/5; each ray has one major beam, twice as broad as the minor beam on either side; length of major beam R = 5/9D; length of minor beam r = 4/5R."

To repeat, if change is to be made on the design of the flag, how is it to be achieved? And does the constitutional design include eight rays even if the number of rays is not specified in the text?

My contention is that the eight rays are covered by the phrase "as consecrated and honored by the people and recognized by law." The eight rays date back to the earliest designs of the flag.

It will be noted that the Constitution specifies how the name of the country, the national anthem and the national seal may be changed. "The Congress may, by law, adopt a new name for the country, a national anthem, or a national seal, which shall all be truly reflective and symbolic of the ideals, history, and traditions of the people. Such law shall take effect only upon its ratification by the people in a national referendum." Name, anthem and seal may be changed by an act of Congress, but any change must be ratified by the people in a referendum. The prescribed process is more strict than what was in the 1973 Constitution which allowed the National Assembly to make the changes, but it is less strict than the process for constitutional amendment.

The provision on the flag, however, does not specify how the design may be changed. The result is that the provision is placed on the same level as all the other provisions of the Constitution not qualified by the phrase "as may be provided by law." Thus it can be changed only by a constitutional amendment. This means that any proposed change can come only from Congress as a constituent assembly, from a constitutional convention, or from the people through initiative. And it must be submitted to the people for approval in a plebiscite.

5 October 2009

Saludo Bows Out


Malaca├▒ang is shopping for a new Chairman of the Commission on Civil Service now that the rejection of Mr. Ricardo Saludo's nomination has become final.

It is rare for the Commission to reject a nomination. Most of the time the Commission simply bypasses an ad interim appointment and leaves the President free to renew the nomination. Now Saludo has the dubious honor of being the recipient of a rare rejection. And a rejected nomination may not be renewed.

What has happened to Saludo is illustrative of how powerful the Commission on Appointments is. Saludo's nomination was rejected on the ostensible reason that he is not a lawyer. There is good reason for saying that the Chairman of the Commission on Civil Service should be a lawyer because the Commission makes sensitive quasi-judicial decisions. Significantly, however, unlike in the case of the Commission on Elections and the Commission on Audit, the Constitution does not prescribe being a lawyer as a qualification for appointment to the Civil Service Commission.

A Chairman of the Commission on Elections must not only be a lawyer but must be a lawyer of extensive experience as lawyer or judge. And at least one member of the Commission on Audit must be a lawyer. No similar requirement is demanded of a CSC Chairman or member. For that reason nobody challenged the nomination as Chairpersons of Ms. Alma de Leon, Ms. Patricia Sto. Tomas and Ms. Karina David, none of whom was a lawyer. De Leon, Sto. Tomas and David all served their full term undisturbed. Saludo’s case is unique.

The Commission on Appointments is part of the constitutional structure for the appointment process involving a limited number of sensitive positions. The Commission is meant to be a check on the appointing power of the President.

The President's power to appoint is very broad. The only limitation on the choice of appointees is that a person must possess the legal qualifications for the office. The choice made by the President might have all the legal qualifications for the office but might be sadly lacking in all other qualities needed for the performance of the functions of the office. The President's act nevertheless would remain valid. It is in such situation that the Commission on Appointments can perform the salutary function of rejecting the President's choice. And, of course, with greater reason the Commission must reject those who do not possess the needed qualifications.

The discretion of the Commission, for its part, is also as broad as the appointing discretion of the President. There is nothing in the Constitution which says that the Commission may reject only those who are not legally qualified. Saludo was legally qualified; but that did not insulate him against rejection. We can speculate about the unstated reasons for Saludo's rejection, but it will not change things. All that the Constitution says is that for certain classes of appointment the Commission must give its consent; absent such consent, the appointment is dead.

Just as the President's broad appointing power can be harmful to public welfare, so also is the broad rejecting power of the Commission. This is partly the reason why during the deliberations of the Constitutional Commission of 1987 there was a long debate on the pros and cons of restoring the Commission on Appointments. There was a Commission on Appointments under the 1935 Constitution but none under the 1973 Constitution. The Commission will surely be a subject of debate again when the 1987 Constitution is finally amended.

The restoration of the Commission on Appointments in the 1987 Constitution was partly a reaction to the experience under the Marcos regime when there was no Commission on Appointments or a similar body to check presidential discretion. But the restoration did not just copy the way it was under the 1935 Constitution. The 1987 Constitution has excluded appointments to the judiciary from the reach of the Commission on Appointments. Instead the devise invented for checking the power of the President is the Judicial and Bar Council. The expectation was that the Judicial and Bar Council would be free from undue pressure from political interests.

Has the expectation been fulfilled? Consider the present composition of the Judicial and Bar Council. The Chief Justice is ex-officio Chairman and the Secretary of Justice and a member of Congress are ex officio members. The other members, appointed by the President with the consent of the Commission on Appointments, are a representative of the Integrated Bar, a professor of law, a retired justice and a representative of the private sector. The Council has had a spotty record in the past but efforts are being made to make it function more effectively. Indeed, while the composition of the Council may not be totally political as the Commission on Appointments is, there are obvious cracks in the wall.

The verdict on the effectiveness of the Judicial and Bar Council as an instrument for assuring the nation an army of judges and justices endowed not only with competence but also with integrity is not yet out. The Judicial and Bar Council will most certainly be a subject of debate when the time for constitutional amendment comes.

In the end, however, whatever dissatisfaction people might have with the Commission on Appointments or with the Judicial and Bar Council, how the two institutions can work or fail to work only shows that structures are not everything. It is people who make the difference. This is also true about forms of government.

19 October 2009