Election Time Legalities

Forget about the President’s power to appoint a Chief Justice or even about gerrymandering in Camarines Sur and elsewhere; but do not lose heart. Just remember what one writer said about the Supreme Court: “Because the key phrases of the Constitution have such grand ambiguities, the Court has wide discretion in passing on matters with a constitutional dimension, and because such matters are likely to concern and affect the larger issues of life, the Court, in passing on them, exercises great political power. . . The special burden of the Court, then, is to exercise great political powers while still acting like a court, or if we prefer, to exercise judicial powers over a wide domain while remaining, realistic, and alert as to the political significance of what it is doing.”

Sometimes, too, even when the language does not contain “grand ambiguities,” ambiguities can be unearthed and exploited to suit a political objective. But again do not lose heart. Just as the 1961 and 1998 decisions on “midnight appointments” yielded to grander scrutiny by a different Court, so also the conclusions of 2010 can be reversed by a different Court or by a constituent assembly. Learn a lesson from the 1987 Constitution: some of its new provisions on executive power are reversals of doctrines formulated by the Marcos Supreme Court.

For now, let us look at other issues. Front page material these days is Secretary Alberto Agra’s decision to absolve two Ampatuans. Since I do not deal with the niceties of criminal procedure morning, noon and night, I leave judgment on the issue to others better informed than I am. But one thing I am sure of: the decision to absolve the Ampatuans is not just Agra’s. The Supreme Court itself has said so and I quote: “the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive."

Jurisprudence has baptized this with the name “doctrine of qualified political agency.” It is a recognition of the fact that the Constitution has established “a single and not a plural executive.” Thus, spokespersons of Malacañang cannot hide behind presidential silence whenever executive underlings are pilloried for their decisions.

Another issue that might be revived is the debate on the effects of the Absentee voting Law, R.A. 9189, and the Dual Citizen Law, R.A. 9225, on political rights. What revived my interest in this is the reported attempt to disqualify the daughter of Mr. Lucio Tan from running for a seat in Congress. While the lawyers on both sides are wrangling about this, let me instead go back to an earlier decision of the Supreme court on dual citizenship and the right of suffrage.

To start with, being domiciled in the Philippines is a question of fact that is a constitutional requisite for being allowed to vote in Philippine elections and also for being voted for as a public official. It is also Supreme Court doctrine that when one loses Philippine citizenship by being naturalized as an American citizen such person also loses his or her domicile of origin in the Philippines.

On the occasion of the 2004 elections the issue arose whether former Filipinos who had lost their Philippine citizenship (and therefore their Philippine domicile) but had reacquired their Philippine citizenship under R.A. 9229 were qualified to vote as absentee voters under R.A. 9189 without having to reestablish their lost Philippine domicile. The Supreme Court said they could (but the decision came after the 2004 elections).

There still lingers some debate about the exact basis of the decision. It is clear that residency is a requirement for eligibility to vote. But then the Supreme Court pointed out that the Constitution authorized Congress “to devise a system wherein an absentee may vote, implying that a non‑resident may, as an exception to the residency prescription, be allowed to vote.” The Court further added: “As may be noted, there is no provision in the dual citizenship law - R.A. 9225 - requiring ‘duals’ to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. On the contrary, R.A. 9225, in implicit acknowledgment that ‘duals’ are most likely non-residents, grants under its Section 5(1) the same right of suffrage as that granted an absentee voter under R.A. 9189. It cannot be overemphasized that R.A. 9189 aims, in essence, to enfranchise as much as possible all overseas Filipinos who, save for the residency requirements exacted of an ordinary voter under ordinary conditions, are qualified to vote.”

The long and the short of it is that the Court seems to have considered R.A. 9189 an amendment of the Constitution and “duals” benefit from it. “Duals” are luckier than the lamented Pirma and Sigaw ng Bayan!

26 April 2010

Gerrymandering Perpetuated

We will be having a new Congress soon, even if the likelihood of a new Supreme Court is nil. It is perhaps not too early to think aloud about what to do with representative districts. One question needing an answer is: What is the correct way of implementing the constitutional command that “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”?

We might recall the 1961 case of Macias et al v. Comelec and compare it with the arithmetic of Aquino v. Comelec, the decision which allowed R.A. 9176 to create a representative district each for Dato Arroyo and Rolly Andaya.. The Macias case arose from R.A. 3040 which attempted a nationwide reapportionment. But R.A. 3040 was declared unconstitutional and void for having violated the constitutional command that the districts "shall be apportioned among the several provinces as nearly as may be according to the member of their respective inhabitants.".

What was wrong with R.A. 3040? The Court said that R.A. 3040 violated the Constitution “because (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,691) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has 3 whereas Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less inhabitants (966,145) was given 5.”

The intention of R.A. 3040 was to implement the constitutional command that “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.” It was the first attempt since 1935 to readjust the sizes of representative districts which by then had become grossly disproportionate through the growth and movement of populations. The intention was good but, quite apparently, competing political interests managed to create an unsatisfactory allotment of districts. Too bad for them, they were not as lucky as the authors of R.A. 9176.

R.A. 3040 was probably a more equitable distribution of districts than what the situation had become then since 1935. In fact the Court said, “It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts.”

R.A. 9176 was by no means an attempt at nationwide reapportionment. And it completely ignored the equality principle enunciated in Macias. Either the Court was not aware of Macias (which is unlikely) or, if aware, chose to adhere to a different notion of equality. Either that, or the ponente was distracted by the preoccupation with the 250,000 population minimum for cities, a provision not found in earlier constitutions.. Thus the ponencia failed to appreciate the fact that through R.A. 9176 a majority of the citizens Camarines Sur, to borrow the 1961 Court language, were being “deprived of as full and effective an elective franchise as they are entitled to under the Constitution.” As the Court then affirmed, “each citizen has the right to have the State apportioned in accordance with the Constitution and to be governed by a Legislative fairly representing the whole body of electorate and elected as required by the Constitution.” It added: “Needless to say, equality of representation in the Legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the Government. Cases are numerous wherein courts intervened upon proof of violation of the constitutional principle of equality of representation.”

R.A. 9176 is not an attempt to implement the Constitutional command that the distribution of districts should be reviewed periodically. It is not even an attempt to balance the numbers among the different districts within Camarines Sur. It is a simple case of doing political allies a favor. But, alas, the Arroyo Court blessed it.

Finally, from the Macias case and the De Castro case, one clear conclusion that can be drawn is that reapportionment done on a piecemeal basis will not achieve the equality of representation desired by the Constitution. Only an honest nationwide reapportionment can achieve equality of representation. If anything, piecemeal reapportionment will only serve to worsen existing inequality. It serves to perpetuate the gerrymandering sin. Will the Supreme Court continue to allow it?

19 April 2010

A District Each for Dato and Rolly

In upholding the creation of a representative district for Dato Arroyo and Rolly Andaya, (yes, that is what R.A. 9176 succeeds in doing), the Supreme Court cited the juggling of populations by the Constitutional Commission when it first divided the country into representative districts. Of course, the Constitutional Commission could juggle and put almost anything into the draft they were working on. After all, the Commission’s work still had to be submitted to the people for approval. But not everything that the Constitutional Commission could do may be done by Congress. Congress is bound not by what the Constitutional Commission did but by what the Constitution says.

The Constitution says that there are five standards for the creation of representative districts.

First, representative districts shall be “apportioned among the provinces, cities and the Metropolitan Manila in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio.” This requirement or its equivalent formula is found in the 1935, 1973 and 1987 Constitutions.

Second, each province, irrespective of size, is entitled to at least one representative district. This too is found in all three Constitutions.

Third, a city can constitute a representative district only if it has a population of at least 250,000. This requirement appears only in the 1987 Constitution.

Fourth, each representative district shall comprise, as far as practicable, contiguous and compact territory. This too is in all three Constitutions.

Fifth, the 1935 Constitution says: “The Congress shall by law make an apportionment within three years after the return of every enumeration, and not otherwise.” The 1987 version says: “Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.”

Of these five standards, the first holds preeminent position. It is the equal protection clause of the Bill of Rights made specific for districts. The others are auxiliary requisites intended to assure observance of the first requisite. It is thus most important that the meaning of the first requisite be understood and that Congress observe it. What does it mean?

The phrase “in accordance with the number of their respective inhabitants and on the basis of a uniform and progressive ratio” is borrowed from American constitutional law and jurisprudence. But it has become necessarily ours because of the American provenance of our basic constitutional law and especially because it is rooted in the equal protection clause. As American jurisprudence clearly teaches, “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.” Or again: “We hold that, as a basic constitutional standard, the Equal Protection Clause requires that the [legislative] seats . . . must be apportioned on a population basis. Simply stated, an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.”

Dilution is exactly what happened in the Camarines Sur case. Camarines Sur had four representative districts each containing roughly 400,000 inhabitants. Of these the largest was the second district with 474,899, followed by the fourth district with 429,070, and next the first district with 417,304. R.A. 9716 decided to divide the smallest of the three into two districts thereby accommodating Dato Arroyo and Rolando Andaya. As a consequence, the smaller original third district would now be represented by two congressmen whereas the two larger districts would be represented by only one each. 474,899 and 429,070 voters voters can elect only one congressman each whereas 417,304 can elect two! Translate that into pork barrel! What could be more blatantly discriminatory?

The ponencia says that population is not the only thing. Yes, but it is the main thing because sovereignty is in the population. The ponencia did not show nor could it show any other factor to outweigh the sovereignty of population.

The ponenca also makes much of the fact that the text of the Constitution expressly provides a population minimum of 250,000 only for cities. True, but an overriding principle is proportionality and equality of population found in the first standard. For cities, 250,000 is the strict mathematical minimum, as upheld in the recent Malolos case. For others, the standard is not a mathematical minimum but proportionality which honors the equal protection clause. The only units exempted from proportionality are provinces.

What we have here is a Supreme Court approved assault on the equal protection clause. It is an assault which inflicts a deep wound on our democratic system.

Finally, what of the command that Congress make a reapportionment within three years after the return of every census? Its purpose is to periodically readjust proportionality. This purpose, however, is defeated by piecemeal reapportionment such as the recent one of Camarines Sur. Piecemeal reapportionment is a direct assault against equal protection. For this reason, reapportionment should only be done nationwide. Unfortunately piecemeal reapportionment continues to have the blessing of the Supreme Court. A deliberate act of Congress creating disproportion and blessed by the Supreme Court is not only unconstitutional but also disgraceful.

12 April 2010

Easter Thoughts on a Murky Election Year

“He descended into hell.” It’s a line in the Apostle’s Creed through which we slide unthinking. We mouth it as “descent into hell.” What does it mean? What happened then? I find an ancient homily, read in the Divine Office for Holy Saturday, a fascinating Easter reading.

“Something strange is happening – there is a great silence on earth today, a great silence and stillness. The whole earth keeps silence because the King is asleep. The earth trembled and is still because God has fallen asleep in the flesh and he has raised up all who have slept ever since the world began. God has died in the flesh and hell trembles with fear.

“He has gone to search for our first parent, as for a lost sheep. Greatly desiring to visit those who live in darkness and in the shadow of death, he has gone to free from sorrow the captives Adam and Eve, he who is both God and the son of Eve. The Lord approached them bearing the cross, the weapon that had won him the victory. At the sight of him Adam, the first man he had created, struck his breast in terror and cried out to everyone: ‘My Lord be with you all.’ Christ answered him: ‘And with your spirit.’ He took him by the hand and raised him up, saying: ‘Awake, O sleeper, and rise from the dead, and Christ will give you light.’

“‘I am your God, who for your sake have become your son. Out of love for you and for your descendants I now by my own authority command all who are held in bondage to come forth, all who are in darkness to be enlightened, all who are sleeping to arise. I order you, O sleeper, to awake. I did not create you to be held a prisoner in hell. Rise from the dead, for I am the life of the dead. Rise up, work of my hands, you who were created in my image. Rise, let us leave this place, for you are in me and I am in you; together we form only one person and we cannot be separated. For your sake I, your God, became your son; I, the Lord, took the form of a slave; I, whose home is above the heavens, descended to the earth and beneath the earth. For your sake, for the sake of man, I became like a man without help, free among the dead. For the sake of you, who left a garden, I was betrayed to the Jews in a garden, and I was crucified in a garden.

“‘See on my face the spittle I received in order to restore to you the life I once breathed into you. See there the marks of the blows I received in order to refashion your warped nature in my image. On my back see the marks of the scourging I endured to remove the burden of sin that weighs upon your back. See my hands, nailed firmly to a tree, for you who once wickedly stretched out your hand to a tree.

“‘I slept on the cross and a sword pierced my side for you who slept in paradise and brought forth Eve from your side. My side has healed the pain in yours. My sleep will rouse you from your sleep in hell. The sword that pierced me has sheathed the sword that was turned against you.

“‘Rise, let us leave this place. The enemy led you out of the earthly paradise. I will not restore you to that paradise, but I will enthrone you in heaven. I forbade you the tree that was only a symbol of life, but see, I who am life itself am now one with you. I appointed cherubim to guard you as slaves are guarded, but now I make them worship you as God. The throne formed by cherubim awaits you, its bearers swift and eager. The bridal chamber is adorned, the banquet is ready, the eternal dwelling places are prepared, the treasure houses of all good things lie open. The kingdom of heaven has been prepared for you from all eternity.’”

* * * * *

It was a long wait for our forefathers before liberation could come. But it came. It will for us too. But it will not come from human saviors. That is one message of Easter.

The election campaign period is a festive period for false Messiahs. This is where we are today. Let them make their promises. It is a ritual we go through every three years.

A modern writer gives us some Easter thoughts to chew on: “The writers of the early church are generally of more use to me than modern theologians when I am trying to make theological concepts come alive. John Chrysostom, for example, packs his dogma into plain speech and concrete imagery. A human voice comes through. The homily he preached in Constantinople before being forced into an exile from which he would never return is fortified with biblical allusion and still heart-rending more than 1,600 years later: ‘Christ is with me, whom shall I fear? Though waves rise up against me, the seas, the wrath of rulers: These things are no more to me than a cobweb.’ He encourages the congregation not to lose hope because: ‘Where I am, there also are you; where you are, there too am I; we are one body.... We are separated by space, but we are united by love. Not even death can cut us apart. For even if my body dies, my soul will live on and will remember my people.

“A man named Paul, facing execution, once wrote from a jail cell: ‘Rejoice in the Lord always; again I will say, Rejoice’ (Phil 4:4). A man named Jesus, on the night before he died, ate his last meal with friends, talked up a storm and no doubt startled the company by proclaiming, ‘I am saying these things to you so that my joy may be in you, and that your joy may be complete’ (Jn 15:11). Wondrous things afoot: an inexpressible but ever-present love, a joy so profound that even death cannot diminish it. Happy Easter!”

5 April 2010