Saturday, February 27, 2010

Pakisama as a Lawman’s Enemy

Because I have taken the position that the President has no power to appoint a Chief Justice after Chief Justice Puno retires next May 17, some have taken this to mean that I am campaigning for the appointment of Justice Antonio Carpio and against the appointment of Justice Renato Corona. As if we were as sure that the next President will appoint Carpio as that Arroyo will choose Corona!

Sometime ago on my way to dinner at the Power Plant Mall, someone approached me to ask, “Are you really for Tony Carpio?” The implication was that I should not be, because Carpio was from UP Law while I was from Ateneo Law. A day later, while waiting for the elevator at the Ateneo Law School, another person asked, “What do you have against Rene Corona?” Worse yet, an official of the Supreme Court (not a Justice) suggested to me at a party that I should be for Rene Corona as a fellow alumnus.

For me, these suggestions are irrelevant to the controversy about the President’s power to appoint. I see the controversy only as a constitutional problem which, if not wisely handled, can have harmful effects. In terms of personal relationships, I hardly know Justice Carpio. As for Rene Corona, I taught him in Law School and I have long known him as a friend and colleague at the Ateneo Law School Faculty. In terms of pakisama, therefore, some expect me to be rooting for him. But I, especially as a law professor, have chosen to approach the controversy as a purely legal issue even if I am aware that personalities are very much involved.

It is unfortunate, and in fact tragic for the judiciary, that not a few are seeing the problem of succession to the office of Chief Justice as a contest between, among others, UP Law and Ateneo Law, or perhaps among fraternities, and more precisely between Carpio and Corona. Some say it is also between The Palace and The Firm

That, I am afraid, is the ugly reality. And I am certain that these alignments are bound to have an unhealthy effect on the reputation of individuals in the judiciary and on the Supreme Court itself. Even now I am trying to imagine what the discussions in the Supreme Court will be like as the justices deliberate on the cases filed about the succession problem. If the sniping going on in media is any indication, I am afraid it will not be a pretty sight.

Chief Justice Reynato Puno has a big challenge in his hands. I can only wish him all the wisdom and firmness needed for navigating through a storm of sharp intellects and strong wills. I trust he will not shirk this heavy responsibility.

* * *

Last week the Supreme Court ruled that appointive officials running for office are deemed resigned. This is not new doctrine. A 2003 decision already pronounced the same doctrine; however, last December the 2003 decision was reversed. Last week’s decision restores the 2003 doctrine.

The distinction made between appointed and elected officials has been criticized as a violation of equal protection. But the equality guaranteed by Constitution does not deny to the state the power to recognize and act upon factual differences between individuals and classes. The question then is whether the classification of public officials into appointive and elective for purposes of different treatment is valid. To justify classification, it must be based on real differences that have a reasonable relation to the purpose the law seeks to achieve.

The Court reiterates now: “Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.”

But what purpose does the classification serve?

The Court’s answer: “An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.”

Admittedly, this justification does not answer everything. The law in question basically aims to contribute to the purification of the electoral process. But “whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain.”

The Court’s answer to this objection is that even if the classification will not solve all election ills, it certainly will prevent some. A law does not become invalid simply because it is not the best. It is invalid only if it is totally arbitrary, which is not the case here.

But will this decision also follow the recurring pattern of multiple reversals?

1 March 2010

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