Saturday, May 22, 2010

Chief Justice Renato Corona

I have always held that the Constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. And, yes, the Supreme Court does, once in a while, change its mind. But the responsibility for interpreting the meaning of the Constitution at any given time belongs to the Supreme Court.

The Supreme Court has decided with finality that the President may appoint a Chief Justice even during the two month period immediately preceding a presidential election. I and many others in the legal profession have disagreed and still disagree with the correctness of the decision. But our disagreeing does not change the fact that for now it is the most recent decision of the Supreme Court that is the law on the subject.

The current decision is a reversal of a 1998 decision which upheld the challenge made by President Diosdado Macapagal to incumbent President Garcia’s appointments made during the prohibited period. The current decision upholding the daughter’s desire to do what the father opposed will stay unless perhaps six years from now a Supreme Court with a different composition should revert to what the Macapagal pater believed.

A decision six years from now, however, or even a constitutional amendment, will not help those who oppose the legitimacy of Corona’s appointment. The present Constitution authorizes the President to make appointments to the Supreme Court from a list submitted by the Judicial and Bar Council (JBC). The JBC duly submitted a list and from that list President Arroyo chose to crown Corona. The process is legally unassailable even if, in the view of many, morally questionable.

True it is that the validity of appointments also depends upon the existence of a vacancy. But the nomination to a vacancy that is certain to occur may be done and can ripen into a valid appointment provided that when the vacancy occurs the official who made the nomination still has the authority to appoint. A vacancy was certain to occur last May 17. When May 17 arrived President Arroyo still had the power. It is as simple as that.

I can understand why Senator Noynoy Aquino is not rejoicing about Corona’s appointment. But I am sure that he is wise enough to realize that he cannot have everything he desires. There is just constitutionally no way that Corona can be ousted from his post now.

True it is that President Diosdado Macapagal moved to reverse “midnight” appointments made by outgoing President Carlos Garcia. But that was in 1998 when we had a different set of justices in the Supreme Court. I simply cannot see the present Supreme Court upholding any attempt to reverse outgoing Arroyo’s appointment of Corona.

Aquino is being tempted by some to move to oust Corona. Listening to such temptation will not help his presidency at all. It will not help the nation. Nor will it have a leg to stand on.

I am not unaware of the dissatisfaction of many with the direction taken by the current Supreme Court in the recent past involving, for instance, executive privilege, “midnight” appointments, and the creation of a playground in Bicol for young Dato Arroyo. It is a direction which makes the independence of the Supreme Court suspect. But I also must accept the fact that, like the Church, the Supreme Court is a human institution that is not perfect. Of the Church it is said that it is an institution semper reformanda, always in need of reform. That the Court and the judiciary in general have room for reform is a human given. Chief Justice Reynato Puno was keenly aware of this fact and had initiated moves in the direction of reform.

I am also certain that the new Chief Justice as well as the other members of the Supreme Court are not blind to this human given. And I doubt that they would claim that the choices made of them by their benefactress were the best she could have done for the nation. In defense of Arroyo’s choice, Chief Justice Corona has been quoted as saying that he is his own man. Certainly the other justices could also make the claim that they are their own women and men. Let us leave it at that and wait for the flowers to bloom.

Our elders spoke of the pre-martial law years as the golden age of the judiciary. If we only have bronze or silver now, or even aluminum, it may yet evolve into a golden crown.

Let me close with another aspect of our tainted humanity. It is known that Senator Aquino toyed with the idea of taking his oath before a barangay captain. It could have been a gesture of thanksgiving to the masses who elected him to office. As it turns out, however, it might not be just a barong Tagalog which a barangay captain lacks but also legal authority. But contrary to what the MalacaƱang “constitutionalist” Saludo claims, the Constitution does not obligate Aquino to take his oath before Corona. Nevertheless, taking the oath before the Chief Justice would be an assurance, addressed to an anxious public, that he does not intend to be a rogue President and that he recognizes the Court as a co-equal body, warts and all. If he has any qualms about it, he might assuage his feelings by remembering what someone greater than he said about the Pharisees: Listen to what they say but do not do what they do.

24 May 2010

Saturday, May 8, 2010

Mental Incapacity of an Incumbent President

As election day approached (and I am assuming that when this piece comes out elections will be going on), one issue which became a matter of public discussion was whether presidential candidates should submit themselves to psychiatric test. Nothing came of it but, just the same, let me say something about it.

I realize that there are civic minded citizens who want presidential candidates to submit to a psychiatric test. The first thing I would say is that in a democracy it is the electorate who decide whether a candidate is fit for the office he or she is aspiring for. It is for that reason that the Constitution itself is very economical in its enumeration of what the qualifications should be. In the case of the President, all that is required is that he or she be a natural born Filipino citizen, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding the election.

Where does mental capacity come in? A candidate for president must be a validly registered voter, and, according to the law an “insane or incompetent person declared as such by competent authority” may not be registered. But the incompetence of a person must be challenged and proved in an exclusion proceeding as provided by law. In the case of the current presidential candidates, none of them was ever properly challenged. The only extant and scattered challenges (and correctly ignored) have been bogus documents of highly suspicious provenance.

One might ask whether a law may be passed requiring candidates to undergo psychiatric test. Enough to say that the law requiring drug testing for candidates was declared to be unconstitutional as invasive of the constitutional right to privacy. Moreover, in the case of national candidates, their qualifications enumerated in the Constitution may not be added to by Congress. A law requiring psychiatric test would suffer the same fate.

However, it is not as if the Constitution were unmindful of the possibility that the electorate, while initially correct, might be proven to be wrong. A President might turn out to be unfit for the office and for reasons that cannot be the subject of impeachment. (Impeachment is limited to culpable violation of the Constitution, treatson, bribery, graft and corruption, other high crimes, or betrayal of public trust.) A President, for instance, might in the course of his term manifest signs of mental imbalance affecting his capacity to govern. It is not generally known that the Constitution has provision for such or similar situations.

The Constitution deals with the thorny issue of deciding whether the President is still able to perform his functions or not. If the President is able to make the decision and is willing to declare himself disabled, he certainly has the power to declare so. This power was recognized in the agreement of March 1958 between President Eisenhower and Vice-President Nixon which stated that "In the event of inability the President would -- if possible -- so inform the Vice President" who would then exercise "the powers and duties until the inability had ended." But if the President himself is unable to make the decision or, though able, is unwilling to admit his incapacity, can somebody else decide for him? There was no clear answer to this question in previous Constitutions. Section 11 of Article VII attempts to supply the answer with a rather elaborate provision.

“Sec. 11.. 11.;. 11.;. 11.;. 11.;. 11.;. 11.; Whenever the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

“Whenever a majority of all the members of the cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

“Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its Rules and without need of call.

“If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.”

Let us just hope that there will be no occasion for using this provision either legitimately or illegitimately.

10 May 2010

Saturday, May 1, 2010

Failure of Election?

A question I frequently hear these days is: What happens if there is failure of election? Worse yet, I also hear described various scenarios that can happen should there be failure of election.

Although I myself do not count the probability of a failure of national elections, it can be useful to try to understand what failure of election can mean.

The Omnibus Election Code, as a matter of fact, provides for various levels of situations of failure of election. The causes, according to the Code, can be “force majeure, violence, terrorism, fraud, or other analogous causes.” And the effect of these causes can be any one of various situations: (1) the election in any polling place has not been held on the date fixed, or (2) had been suspended before the hour fixed by law for the closing of the voting, or (3) after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. And in any of such cases the failure or suspension of election would affect the result of the election.

In these circumstances the Comelec is authorized by law to declare a failure of election if two conditions concur: (1) that no voting has taken place on the date fixed by law or even if there was, the election results in a failure to elect, and (2) the votes not cast would affect the result of the election.

But the power to declare a failure of election is so important that the Court prescribes the care with which the Comelec should exercise it. The power to declare a failure of elections should be exercised with utmost care and only under circumstances which demonstrate beyond doubt that the disregard of the law has been so fundamental or so persistent and continuous that it is impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any certain result whatsoever; or that the great body of voters have been prevented by violence, intimidation and threats from exercising their franchise. There is failure of elections only when the will of the electorate has been muted and cannot be ascertained. If the will of the people is determinable, the same must as far as possible be respected.

The Supreme Court cases involving failure of election, however, have dealt only with failure in local elections. For that matter, the language of the Omnibus Election Code can be read as referring only to localized failure. In these nervous times, however, when people speak of failure of election, what they are talking about is failure of national elections, and, specifically, of failure to have a proclaimed President by noon of next June 30. Talk about such situation is partly due to doubts about the novelty of the coming automated elections and partly due to distrust of the current administration. How does the law deal with such situation?

There is, of course, an order of succession in the Constitution for a situation when there is a vacancy at the beginning of the term of a President. The following are the rules to be followed at noon on June 30:

(1) If a President shall not have been chosen, the Vice President-elect shall act as President until a President shall have been chosen and qualified.

(2) If at the beginning of the term of the President, the President-elect shall have died or shall have become permanently disabled, the Vice President-elect shall become President.

(3) Where no President and Vice-President shall have been chosen or shall have qualified, or where both shall have died or become permanently disabled, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until a President or a Vice-President shall have been chosen and qualified.

(4) The Congress shall, by law, provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of the officials mentioned in the next preceding paragraph.

The first thing that should be noted about these rules is that the outgoing President has no right to hold-over beyond noon of June 30. She must step down.

Second, Congress has not yet provided for a situation when none of those who are mentioned – Vice-President, Senate President, House Speaker – is in a position to fill the vacuum temporarily. Remember that Congress will not be in session on June 30.

Third, -- and this is a saving factor – there can be a Senate President after June 30. The current Senate President will finish his term on June 30. But a new Senate President can be elected before June 30 from among the twelve whose term will not end on June 30. (Why before June 30? Because after June 30 there will be no quorum in the Senate.) The Senators know that this is a very serious responsibility. The new Senate President can continue as such into the next term and act as President until the vacancy in the presidency is resolved.

But how long will it take for the vacancy to be resolved? The length or brevity of the waiting period will depend on the cause of the vacancy. In fact, whether the vacancy is terminable through constitutional procedure will also depend on what is causing it. The possible causes can be the same as those for local failure of election: force majeure, violence, terrorism, fraud, or other analogous causes.” Let us just pray that no situation will arise which can usher in a military junta or even another People Power.

3 May 2010