Saturday, April 24, 2010

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 nonresident 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

1 comment: