What Happens Next?

My Lolo Tomas used to say that the most difficult persons to rouse out of bed are those who are already awake. He was the best proof of that, and my Lola Rosario often had to deal with that problem. Even on his birthday, when Lola Rosario wanted to drag him to morning Mass in the days when there were no evening Masses yet, Lolo Tomas would groan that he was born in the late afternoon.

When some people asked me what I think of the possibility of reversal of the Court’s decision on President Arroyo’s power to appoint the next Chief Justice, I was severely tempted to answer with the wisdom of Lolo Tomas. But I should not and did not. Each person sees the world through his or her own optic and decides what best to do.

In the academic world there is also such a thing as a passing mark ex aliunde, that is, not on the basis of exam grades but on some other basis. It is also possible for a justice to find various possibilities and choose what he or she sees as best for the moment. In politics this sometimes works as the “Caiphas principle” when you sacrifice someone in order to save or favor others.

Like it or not, nine justices see the meaning of the Constitution as allowing President Arroyo to appoint the next Chief Justice. The odds are prohibitive against reversal of a 9 to 1 decision; but I am hoping against hope that reversal will come. I always like to appeal to what Hilaire Belloc said about hope being a virtue when the situation is hopeless.

If my hope is crushed, I will just have to join Gibo Teodoro in his desire that President Arroyo, in presidential magnanimity and to honor her late father who denounced “midnight appointments,” will not bequeath to the nation a Chief Justice with doubtful legitimacy. As former Justice Mendoza correctly says about the decision of the Court, it is not a command requiring her to appoint the next Chief Justice. Should she decide not to appoint, the nation will heave a deep sigh of relief even if we have to fight about who the next President should appoint – as I am sure we will. It will probably take some time before the Court can become depoliticized again.

The Supreme Court has also thrown the ball to the JBC court. By command of the Constitution the next President must be chosen from among a list prepared by the Judicial and Bar Council. The Court has ordered the JBC to submit a list on or before May 17.

Clearly the Judicial and Bar Council has the duty to submit a list. But does the constitutional duty to submit a list mean a duty to submit a list on or before May 17 or on a date at the JBC’s discretion? If we go by the dictum that the Constitution means what the Supreme Court says it means, the JBC must submit a list on or before May 17. But is not the duty of the JBC to submit a list within the 90 day period following the occurrence of the vacancy -- which means any time before August 17? Can the Court impose on the JBC the manner of exercising its discretion? Is not the power of the Court over the JBC merely one of “supervision” and not of “control”? These questions were not discussed by the Court in its decision. These will probably come up up in a motion for reconsideration.

A Military Junta?

So much for now about the search for an embraceable Chief Justice. Let us talk about a Palace spokesperson’s threat to sic a military junta on the nation. I can almost imagine Spokesperson Planas as a stern school mistress waving a rod and saying to students, “Behave, or the Armed Forces will get you!”

Talk about a military junta is connected with speculation about a failed automated election resulting in failure to elect a President or Vice President or a delay in proclaiming them.

It is not as if we did not have a formula for dealing we such a possibility. We do. There is a rule on presidential succession in the Constitution. The order of succession starts with the Vice-President, is followed by the President of the Senate, and finally the Speaker of the House. Today, however, we have a situation where the term of all three of them will end with the term of the President at noon next June 30, but Congress has not done anything to provide for such situation.

This situation need not be alarming if the Senate President were one of those whose term will not end on June 30. There are twelve of them, i.e., the twelve who were elected three years ago and whose term will end only in 2013, and President Enrile is not one of them. To save the nation from Spokeperson Planas’ threat of a military junta, the easy solution is for the Senate to elect a new Senate President whose authority as Senate President will continue beyond June 30. Will the Senate do this? Senate President Enrile says there is plenty of time for that. We ask the Senate to allay the people’s fear of a military junta by electing a new Senate President who can act as President until a President or Vice-President is known.

A Back Door Entry to Congress

I agree with those who say that the party-list system is getting to be a back door entry point into the House of Representatives for those who do not qualify or deserve to be there. The party-list law says that a party-list nominee must be a member of the party to be represented. This should mean that the nominee’s heart and mind must belong to the party. This, however, is an internal quality that is not easily measurable or even determinable. This is where the hole in the wall is.

I recall that the party-list system was envisioned as an experiment. I believe that it is now time to evaluate the experiment.

29 March 2010

Shadow of Doubt

No, this is not about the controversial book Shadow of Doubt by Marites Vitug. It is about the Supreme Court’s decision upholding the power of President Arroyo to appoint the next Chief Justice.

I have always held that the Constitution means what the Supreme Court says it means – but only until the Supreme Court itself changes its mind. The mind of the Court, after all, is not cast in bronze. Sometimes it is cast in wax.

In 1998 the Supreme Court expressed its mind thus:

"The Court's view is that during the period stated in Section 15, Article VII of the Constitution - "(t)wo months immediately before the next presidential elections and up to the end of his term" - the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years."

Last Wednesday, or two presidential terms and some strategic appointments later, the Supreme Court changed its mind and now says, 9-1-3, that it is perfectly alright for the President to make appointments to the judiciary during the period of the ban.

The strained ponencia of Justice Bersamin is a Sysiphus climb which, upon reaching the top, has been blown to smithereens by the dissent of Justice Carpio-Morales.

Strangely, the ponencia’s argument is anchored not on the language of the Constitution but on the structural arrangement of the provisions. Thus, since the ban on making appointments is found in Article VII on the Executive Department, the ponencia concludes that it should apply only to the executive department -- forgetting that the power to appoint given in Article VII covers positions in the judiciary.

The ponencia also ignores key principles of statutory construction. Ubi lex non distinguit nec nos distinguere debemus. (When the law does not distinguish, neither should we.) Inclusio unius est exclusio alterius. (The inclusion of one excludes others.) Casus omissus pro omisso habendus est. (A subject that has been omitted must be considered excluded.) In utter disregard of all these principles the ponencia would have us understand that, when the Constitution says “except temporary appointments to executive positions when continued vacancies therein would prejudice public service or endanger public safety,” we must in the same breath add "and positions in the judiciary." This is unauthorized constitutional amendment.

The Supreme Court at any particular time is usually referred to by the name of the current Chief Justice. Ours now is more appropriately called the Arroyo Court. During the period when the controversy about the President's appointing authority was being debated in media, the gut feel of many, myself included, was that the majority of the Arroyo Court would vote the way they did last Wednesday. Thus last Wednesday's decision did not come as a surprise. "Shadow of Doubt," catchy as it might be, does not express the full flavor of what is percolating in the hearts and minds of many.

In the course of the debate on the subject, much of the argument used was that the presence of a Chief Justice at all times is demanded by the Constitution and by public welfare. It was argued that the leadership of the Chief Justice was crucial all the time and no one of the Associate Justices could fill the gap. That this argument is not echoed in the ponencian is perhaps grudging recognition of the fact that the Constitution itself allows a "Chief-less" Supreme Court for 90 days in the belief that one of the Associates can effectively substitute for him during a temporary absence.

Indeed, the leadership of the Chief Justice is important but not crucial. We have had many occasions when the Court was led by a temporary presiding officer but with no loss to the nation. In fact, the current Chief Justice is on a two -week leave and nobody is shouting “Help!”

Because I believe that the role of a Chief Justice is important, although not crucial, I would have wished that Chief Justice Reynato Puno had participated in the decision. Unfortunately the Chief Justice chose a stance comparable to that of Joshua Clottey. While reading the Court’s decision, I missed the Chief Justice's vigorous Court presence.

I must say, however, that the constitutional provisions involved are actually not that mysterious. But the tug of war of the political process can inject between the lines of the Constitution undercurrents that can muddle the flow of arguments. Not the least of these undercurrents is the conflict of personalities and personal preferences that are further tarnishing the image of an already tarnished Court. The fact that both Justices Carpio and Corona inhibited themselves is admission enough that they see the contest as between the two of them. Too bad, because, first, the contest is primarily about the law and not about them, and second, I would have wanted to see their participation in the legal tussle.

It will not take much imagination to guess who the President will not appoint. Conversely, it is easy to guess who she will appoint. However, whoever that person might be is less significant than the impact of the processes that will have led to the appointment. What the fallout will be from all this remains to be seen. One thing is sure today: popular confidence in the integrity and independence of the Court has been severely sapped.

22 March 2010

Who Can Be a Party-List Rep?

When word went around that Congressman Mikey Arroyo, anticipatedly displaced by his mother from his seat in Pampanga, might run for a position in Congress as party-list representative, true or not, people naturally wondered if this was constitutionally allowable. For that matter, a similar question was asked about Secretary Angelo Reyes.

It is a legitimate question because there is a distinction between the qualifications of a district representative and those of a party-list representative.

We are familiar with the qualifications of district representatives. They must be natural born Filipino citizens, at least twenty-five years of age on the day of the election, registered voters in the district to be represented, and residents of the district they hope to represent for at least one year immediately preceding the election. No qualities of the person are prescribed, no level of education, no party affiliation, no profession. One can be a lawyer, a doctor, a billionaire, a laborer, or even a Cardinal. Yes, even a Cardinal, because the Constitution says that no religious test shall be imposed for the exercise of civil or political rights.

Clearly, Mikey Arroyo or Secretary Reyes can be one of them. Not everyone, however, can be a party-list representative.

The birth of the party-list representative came with the party-list system. Both arose out of the desire to give voice to the underrepresented and marginalized classes of society. The Constitution has reserved twenty percent of the total membership of the House of Representatives for party-list representatives. According to current jurisprudence and on the basis of the total number of representatives today, party-list representatives can be as many as fifty-five – a force to reckon with if strategically deployed.

Constitutionally, a party-list representative has the same qualifications as a district representative, except for the fact that party-list representatives, since they do not represent a district, can be registered voters in any place of their choice. Since, however, they are to represent a party-list organization, they must also be bona fide members of a party-list organization.

The Constitution says that the party-list members must be chosen, as provided by law, from "the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may b provided by law, except the religious sector." Hence, if Mikey Arroyo is to become a party-list representative, he must fit into one of these classes. This may take a lot of doing!

In 1971 the Supreme Court thoroughly discussed the issue as to what kind of organizations may participate in the party-list system. The current doctrine on this subject is summed in the Epilogue to the 2001 decision:

"The linchpin of this case is the clear and plain policy of the law: 'to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.

"Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity.

"Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization.

"In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941."

The Court's decision is a clear enunciation of what an organization must stand for if it is to be allowed to participate in the party list system. It is a great idea which I myself supported in the Constitutional Commission. But it can also be a backdoor entry point for the undeserving. Hence, who should be elected to represent that organization?

Section 9 of the Party-List Law says that he must be "a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election." This should mean that a party-list representative's heart and mind should belong to the organization he or she represents. It may not always be easy to substantiate this requirement. Conversely, it may be easy to feign possession of this requirement!

15 March 2010

Church-State Fundamentals

Fundamentals of Church -State Relation

Joaquin G. Bernas, S.J.

I guess it was the statement of two bishops supporting the candidacy of a particular presidential candidate which triggered a request from a tv station for an interview on the subject of church-state relations. Or it could also have been the aggressive stance of some churchmen on the reproductive health debate or the negative reaction of churchmen to Secretary Cabral’s distribution of condoms. Whatever it was, there always seems to be a need for clarifying from time to time what separation of church and state means, even if I myself always prefer to describe the phenomenon by the more technical phrase of the non-establishment of religion. The technical clause has a better chance of conveying the precise meaning of what is referred to commonly as separation of church and state.

It is sometimes thought by some that separation of church and state means that church people should not get involved in the hurly burly of public and political life. In other words, they should confine themselves to the sacristy. But to understand the subject properly one must begin with what the Constitution says. The constitutional command says: “No law shall be passed respecting an establishment of religion . . .” Immediately it can be seen that the command is addressed not to the Church but to the State. It is the State, after all, which passes laws.

The fundamental meaning of the clause is the prohibition imposed on the state not to establish any religion as the official state religion. We are familiar with the background of this prohibition. Under the Spanish Constitution of 1876, Catholicism was the state religion and Catholics alone enjoyed the right of engaging in public ceremonies of worship. While the Spanish Constitution itself was not extended to the Philippines, Catholicism too was the established church in the Islands under the Spanish rule. As the established church, or the official church, Catholicism was protected by the Spanish Penal Code of 1884, which was in effect in the Philippines. Thus, of the offenses enumerated in the chapter of the Penal Code entitled "Crimes Against Religion and Worship," six specifically and solely referred to crimes against the Catholic church.

We know that one of the immediate effects of the advent of the American constitutional system in the Philippines was the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. The Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." The separation, in fact, came earlier than the Philippine Bill, which merely repeated the provision relative to religion in President McKinley's Instruction, which, in turn, merely implemented Article X of the Treaty of Paris.

The constitutional command, however, is more than just the prohibition of a state religion. That is the minimal meaning. Jurisprudence has expanded it to mean that the state may not pass "laws which aid one religion, aid all religions, or prefer one religion over another."

That is the “separation part” of the constitutional command. The other part is the “free exercise clause.” Both are embodied in one sentence which says: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

When people see bishops or priests venturing into public or political life, the instinctive question that is often asked is: Is this a violation of the separation of church and state? The question is understandable because of the frequent use of the phrase “separations of church and state” and people often equate church with bishops or priests. But the negative command of the Constitution is addressed not to bishops or priests but to the state and those who exercise state authority. As to bishops and priests, the pertinent part of the constitutional command is the guarantee of the free exercise of religion.

So insistent, in fact, is the Constitution on this freedom of religion that it goes on to add: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.” The beneficiaries of this freedom include bishops and priests and clerics and ministers of religion of every kind. More than that , they are also protected by the freedom of speech and assembly of the Constitution.

Am I therefore saying that, by all means, let clerics participate in the political arena. That is not what I am saying. All I am saying is that there is nothing constitutionally wrong when priests or bishops get involved in public affairs or politics. But as a cleric myself, I am aware that I am subject to two kinds of laws: state law and church law.

Let me just quote what I consider a rule of thumb for clerics: “The question of the secular and political activity of priests was considered at the Third General Synod of Bishops in 1971. The document stressed the priority of the special mission which pervades the total existence of priests. In the ordinary course of events, full time should be given to the priestly ministry. Assumption of a role of leadership or a style of active militancy for some political faction must be ruled out unless, in concrete extraordinary circumstances, this is really demanded by the good of the community, and it has the consent of the bishop after consultation with the priests’ council.”

8 March 2010

Fundamentals of Church -State Relation

Joaquin G. Bernas, S.J.

I guess it was the statement of two bishops supporting the candidacy of a particular presidential candidate which triggered a request from a tv station for an interview on the subject of church-state relations. Or it could also have been the aggressive stance of some churchmen on the reproductive health debate or the negative reaction of churchmen to Secretary Cabral’s distribution of condoms. Whatever it was, there always seems to be a need for clarifying from time to time what separation of church and state means, even if I myself always prefer to describe the phenomenon by the more technical phrase of the non-establishment of religion. The technical clause has a better chance of conveying the precise meaning of what is referred to commonly as separation of church and state.

It is sometimes thought by some that separation of church and state means that church people should not get involved in the hurly burly of public and political life. In other words, they should confine themselves to the sacristy. But to understand the subject properly one must begin with what the Constitution says. The constitutional command says: “No law shall be passed respecting an establishment of religion . . .” Immediately it can be seen that the command is addressed not to the Church but to the State. It is the State, after all, which passes laws.

The fundamental meaning of the clause is the prohibition imposed on the state not to establish any religion as the official state religion. We are familiar with the background of this prohibition. Under the Spanish Constitution of 1876, Catholicism was the state religion and Catholics alone enjoyed the right of engaging in public ceremonies of worship. While the Spanish Constitution itself was not extended to the Philippines, Catholicism too was the established church in the Islands under the Spanish rule. As the established church, or the official church, Catholicism was protected by the Spanish Penal Code of 1884, which was in effect in the Philippines. Thus, of the offenses enumerated in the chapter of the Penal Code entitled "Crimes Against Religion and Worship," six specifically and solely referred to crimes against the Catholic church.

We know that one of the immediate effects of the advent of the American constitutional system in the Philippines was the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. The Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." The separation, in fact, came earlier than the Philippine Bill, which merely repeated the provision relative to religion in President McKinley's Instruction, which, in turn, merely implemented Article X of the Treaty of Paris.

The constitutional command, however, is more than just the prohibition of a state religion. That is the minimal meaning. Jurisprudence has expanded it to mean that the state may not pass "laws which aid one religion, aid all religions, or prefer one religion over another."

That is the “separation part” of the constitutional command. The other part is the “free exercise clause.” Both are embodied in one sentence which says: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

When people see bishops or priests venturing into public or political life, the instinctive question that is often asked is: Is this a violation of the separation of church and state? The question is understandable because of the frequent use of the phrase “separations of church and state” and people often equate church with bishops or priests. But the negative command of the Constitution is addressed not to bishops or priests but to the state and those who exercise state authority. As to bishops and priests, the pertinent part of the constitutional command is the guarantee of the free exercise of religion.

So insistent, in fact, is the Constitution on this freedom of religion that it goes on to add: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.” The beneficiaries of this freedom include bishops and priests and clerics and ministers of religion of every kind. More than that , they are also protected by the freedom of speech and assembly of the Constitution.

Am I therefore saying that, by all means, let clerics participate in the political arena. That is not what I am saying. All I am saying is that there is nothing constitutionally wrong when priests or bishops get involved in public affairs or politics. But as a cleric myself, I am aware that I am subject to two kinds of laws: state law and church law.

Let me just quote what I consider a rule of thumb for clerics: “The question of the secular and political activity of priests was considered at the Third General Synod of Bishops in 1971. The document stressed the priority of the special mission which pervades the total existence of priests. In the ordinary course of events, full time should be given to the priestly ministry. Assumption of a role of leadership or a style of active militancy for some political faction must be ruled out unless, in concrete extraordinary circumstances, this is really demanded by the good of the community, and it has the consent of the bishop after consultation with the priests’ council.”

8 March 2010

I guess it was the statement of two bishops supporting the candidacy of a particular presidential candidate which triggered a request from a tv station for an interview on the subject of church-state relations. Or it could also have been the aggressive stance of some churchmen on the reproductive health debate or the negative reaction of churchmen to Secretary Cabral’s distribution of condoms. Whatever it was, there always seems to be a need for clarifying from time to time what separation of church and state means, even if I myself always prefer to describe the phenomenon by the more technical phrase of the non-establishment of religion. The technical clause has a better chance of conveying the precise meaning of what is referred to commonly as separation of church and state.

It is sometimes thought by some that separation of church and state means that church people should not get involved in the hurly burly of public and political life. In other words, they should confine themselves to the sacristy. But to understand the subject properly one must begin with what the Constitution says. The constitutional command says: “No law shall be passed respecting an establishment of religion . . .” Immediately it can be seen that the command is addressed not to the Church but to the State. It is the State, after all, which passes laws.

The fundamental meaning of the clause is the prohibition imposed on the state not to establish any religion as the official state religion. We are familiar with the background of this prohibition. Under the Spanish Constitution of 1876, Catholicism was the state religion and Catholics alone enjoyed the right of engaging in public ceremonies of worship. While the Spanish Constitution itself was not extended to the Philippines, Catholicism too was the established church in the Islands under the Spanish rule. As the established church, or the official church, Catholicism was protected by the Spanish Penal Code of 1884, which was in effect in the Philippines. Thus, of the offenses enumerated in the chapter of the Penal Code entitled "Crimes Against Religion and Worship," six specifically and solely referred to crimes against the Catholic church.

We know that one of the immediate effects of the advent of the American constitutional system in the Philippines was the denial to the Catholic church of the privileged position it occupied under Spanish sovereignty. The Philippine Bill of 1902 "caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect." The separation, in fact, came earlier than the Philippine Bill, which merely repeated the provision relative to religion in President McKinley's Instruction, which, in turn, merely implemented Article X of the Treaty of Paris.

The constitutional command, however, is more than just the prohibition of a state religion. That is the minimal meaning. Jurisprudence has expanded it to mean that the state may not pass "laws which aid one religion, aid all religions, or prefer one religion over another."

That is the “separation part” of the constitutional command. The other part is the “free exercise clause.” Both are embodied in one sentence which says: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

When people see bishops or priests venturing into public or political life, the instinctive question that is often asked is: Is this a violation of the separation of church and state? The question is understandable because of the frequent use of the phrase “separations of church and state” and people often equate church with bishops or priests. But the negative command of the Constitution is addressed not to bishops or priests but to the state and those who exercise state authority. As to bishops and priests, the pertinent part of the constitutional command is the guarantee of the free exercise of religion.

So insistent, in fact, is the Constitution on this freedom of religion that it goes on to add: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.” The beneficiaries of this freedom include bishops and priests and clerics and ministers of religion of every kind. More than that , they are also protected by the freedom of speech and assembly of the Constitution.

Am I therefore saying that, by all means, let clerics participate in the political arena. That is not what I am saying. All I am saying is that there is nothing constitutionally wrong when priests or bishops get involved in public affairs or politics. But as a cleric myself, I am aware that I am subject to two kinds of laws: state law and church law.

Let me just quote what I consider a rule of thumb for clerics: “The question of the secular and political activity of priests was considered at the Third General Synod of Bishops in 1971. The document stressed the priority of the special mission which pervades the total existence of priests. In the ordinary course of events, full time should be given to the priestly ministry. Assumption of a role of leadership or a style of active militancy for some political faction must be ruled out unless, in concrete extraordinary circumstances, this is really demanded by the good of the community, and it has the consent of the bishop after consultation with the priests’ council.”

8 March 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