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

Evolution of the Party-List System

In my view, the party list system has evolved into something it was not originally conceived to be. Whether this is good or bad for the country should be a subject of debate.

There are two related concepts in the constitutional provision on the subject: party-list groups and sectoral groups. The Constitution speaks of “a party-list system of registered national, regional, and sectoral parties or organizations.” It will be noticed from this that the “sectoral parties” are just one of the various organizations of the “party-list system.” At present, however, the sectoral system has become equated with the party-list system such that only “disadvantaged” sectoral groups can participate in the party-list system. This development has come about as a result of legislation and Supreme Court decisions.

In the 1986 Constitutional Commission, the two concepts were explained. The party-list system meant a voting system where parties or organizations submitted a list of their candidates and the parties would be represented by the number of their members in proportion to the total number of votes they received. The proportional system was meant to be an antidote to the winner-take-all district system. Disadvantaged groups, however, would only be one type among the groups taking part in the proportional system.

There was, however, the understanding that the disadvantaged sectors at that time would not have the resources or capability to compete in the political arena against traditional parties. Hence, there was a strong move to give them permanently reserved seats in the system. But permanent reservation was disapproved. Instead, the compromise reached was that, in order to enable them to build up their strength to be able to complete in the electoral arena, “for three consecutive terms after the ratification of the Constitution, one-half to party list representatives” would be reserved for disadvantaged sectors.

Then came in 2001 a divided Supreme Court decision which made the ruling that the intent of the Constitutional Commission and of the implementing statute, R.A. 7941, was not to allow all associations to participate in the system but to limit participation to parties or organizations representing the "marginalized and underprivileged.” The Court saw the party-list system is a “social justice tool.” The Supreme Court saw the party list system as a sectoral system even if the deliberations of the Constitutional Commission clearly meant that party-list meant more than just one class of organization.

The decision, moreover, said that all the party list seats should be reserved for the sectoral groups not just for three consecutive terms but forever. When a dissenting justice pointed to what the Record of the Constitutional Commission showed, the ponente retorted that Commission records should be consulted only when the text of the Constitution was not clear. For him, the text -- in spite of the specific three term and fifty percent limitation -- was clearly not for one half only but for all the seats, and not for three terms only but forever. Effectively deleted was the phrase "For three consecutive terms after the ratification of this Constitution one-half of the seats . . ." It was an amendment by amputation.

That was not all. The majority also ruled that party-list nominees "must represent marginalized and underrepresented sectors." This meant that nominees who did not have this ideological quality, (which incidentally is not easily proved or disproved), were not qualified to be party-list representatives. But this is another departure from the constitutional text; this time, however, not by amputation but by grafting. No such ideological requirement is found in Section 6 of Article VI which enumerates the qualifications of a member of the House of Representatives. Neither does R.A. 7941 prescribe an ideological qualification. This Supreme Court ruling remains to this day.

An earlier case on the current party-list implementing law, Republic Act 7941, settled two questions. First, R.A. 7941 required parties, organizations and coalitions participating in the system to obtain at least two percent of the total votes cast for the party-list system in order to be entitled to a party-list seat. Those garnering more than this percentage may have "additional seats in proportion to their total number of votes." Furthermore, no winning party, organization or coalition may have more than three seats in the House of Representatives. All these were upheld by the Court in 2000.

A related question was whether the allocated twenty percent of the total House membership set a mandatory number that must be filled or whether it merely set a ceiling. The Court said that it was not a mandatory number but just a ceiling.

The result of these two decisions was that the seats allocated for party-list was never filled and mathematically could never be filled. Thus last year the Court declared the 2% threshold as unconstitutional and that the 20% allocation was mandatory.

As a result of these 2009 rulings, expect the 20% seats allocated for party-list to be filled by an avalanche of “disadvantaged” sectoral representatives. How this will affect the political balance in Congress remains to be seen. It will depend on the loyalties of the incoming sectoral groups.

Finally, it should be remembered that the party-list system was envisioned as an experiment. I believe that it is now time to evaluate the experiment.

15 October 2010

What cConstitutional Crisis?

Every indication coming from the Palace is that, come hell or high water, President Gloria Macapagal Arroyo will reject the 1992 lesson given by the late President Diosdado Macapagal and will appoint the next Chief Justice once Chief Justice Puno retires next May 17.

But then we really are not so sure that she will. At least, I am not so sure. Did not a life changing experience happen to Paul of Tarsus on the road to Damascus when he heard a voice saying, “Paul, Paul, why are you persecuting me?” That road to Damascus is still open. And the voice might once again be heard.

We have not heard from her personally. We have only been treated to the wisdom of Palace spokespersons. Who knows, but it could be that the Palace oracle has simply been commissioned to float trial balloons to see what the reaction of the public might be.

But there are those who are instigating the fear that, should she fail to appoint a Chief Justice and allow the office of Chief Justice to be vacant until a new President is sworn in, a constitutional crisis will arise. Frankly, I am not sure they themselves believe what they are mouthing.

What constitutional crisis? Let us calmly look at that.

What normally happens is that, whenever a chief Justice is absent or there is as yet no Chief Justice, the most senior among the Associate Justices acts as the Chief. In the history of our country nothing unusual has happened any time that there is an Acting Chief. The Court continues to function normally. After all, the associate justices are men and women of tested mettle.

As a matter of fact that is the procedure prescribed by the Judiciary Act. I myself have doubts about the constitutionality of that procedure because the presence of the statutory prescription amounts to a designation of a temporary Chief Justice by Congress, which is a no-no under separation of powers. However, the procedure, which antedates the present Constitution, has not been proscribed by the Constitution and the Court itself has accepted it as wise procedure. It will remain that way until the Court itself changes it and there never will be a time when no one will be around to perform the functions of a Chief.

But then it is said that the times are unusual. It is election time when a new automated system of election will be used which might lead to a presidential election contest. Who will preside should the Presidential Electoral Tribunal be called to adjudicate?

In the first place the Constitution does not speak of a Presidential Electoral Tribunal. The Constitution simply says that in such a situation the Supreme Court itself will adjudicate. And who will preside? Who else but the designated Chief from among the fourteen Indians. It would be an insult to the associate justices if one were to say that none of them could, or they collectively could not, handle the job.

It is also said that, without a Chief Justice, there will be no one to certify that the correct procedure has been followed in deciding cases. They must be kidding. There will be the acting Chief. As a matter of fact, even the Chief Justice, in decisions promulgated by divisions, simply awaits the attestation of the Chairman of the division. I have never heard of a Chairman’s attestation being rejected by the Chief Justice.

One may also ask who would preside should the President be tried on impeachment. The Constitution says that the Chief Justice should preside. And you can be sure that if there should ever be an impeachment trial of a President after the current presidential term there will already be a regular Chief Justice.

What all these come down to is that there never will be a time when no one will be there to perform the duties of a Chief Justice. So where can the constitutional crisis come from?

First, it definitely is being propagated by the fertile imagination of some.

Second, it can come from what might happen in the Judicial and Bar Council process. What do I mean? In choosing the persons to be nominated to the Supreme Court the Judicial Bar Council normally awaits a non-binding recommendation of the Court. The Court, therefore, would be expected to deliberate about who to recommend to the JBC. Can you imagine what the spectacle will be like when the justices deliberate as to who they would be willing to recommended as Chief Justice?

It is by now obvious that the justices are divided on the issue of whether President Arroyo may appoint a Chief Justice. Two have already indicated that they will not accept an appointment from Arroyo while two others are willing to be nominated and be submitted to Arroyo without condition, even if they have not said that theyw ill accept. I doubt that the rest of the justices have a unanimous view.

Third, the crisis can more likely come about if the President, not having been graced with a salutary Pauline Damascus experience, should decide to appoint a Chief Justice. It will be no surprise if the President should appoint one of the current associate justices. What a spectacle it will be when the justices are asked to decide whether the appointment of one of them as their Chief is valid. The deliberation of the Court on the subject will be one for the books and whoever succeeds in getting the inside story will have a best seller.

Of course, as I indicated in an earlier column, the CJ might be tempted to retire more than two months before the election and make things easy for an embattled President. If that happens, why he chose to cap his legal career with a political gamble will be the talk in bars and coffee shops for some time.

Finally, let us just hope that what happened in Pakistan when President Mubarak toyed with the Supreme Court will not happen here. Or perhaps it will be salutary if it happened here!

8 February 2010

Spotlight on the JBC

Last week, as I was on my way to dinner in the Power Plant Mall, someone approached me to ask, “Do you really want to make Tony Carpio Chief Justice?” The following day a friend asked me, “What do you have against Rene Corona?”

Hitherto I have tried to resist the idea that what has been driving those who claim that President Arroyo has the power to appoint the next Chief Justice is not so much legal reason but political preference. Perhaps I should not try to resist that idea any more.

As for my legal preference, however, I must say that in my present state of soul my preference for Chief Justice is anyone who is appointed by the person who has authority to make the appointment. Two weeks agoI had a full article on this.

That encounter which I had with two inquisitors was followed by a front-page statement from a high ranking official of the Palace that the power to determine whether the President may appoint a Chief Justice belongs to the Judicial and Bar Council. It made banner headline in the Manila Bulletin. I would have wished that the Palace official had supported his statement with legal reasons, because he is a former student of mine; but, alas, he forgot to.

But the pronouncement deserves analysis if only for the reason that it came from the Palace and should perhaps be seen as the official line of the Palace.

Let us look at what the JBC is supposed to be as envisioned by its architects. The principal author of the Judicial and Bar Council was former Chief Justice Roberto Concepcion.

Under the 1935 Constitution appointments to the judiciary had to go through the Commission on Appointments . Concepcion thought that the CA process was too politically tainted. He wanted a depoliticized process, a consummation also devoutly wished by many members of the Constitutional Commission. Hence Concepcion proposed a Judicial and Bar Council which, in its final form, would consist of the Chief as ex-officio Chairman, the Minister of Justice and a representative of Congress as ex-officio members, and as regular members a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members would be appointed by the President, with the consent of the Commission on Appointments, and the representative of Congress would be chosen by Congress.

Whether or not the JBC has indeed protected the appointment process from the vagaries of politics is again being tested even as it prepares to make a list of persons who can fill the vacancy to be created by the retirement of Chief Justice Puno.

But what is the JBC’s role? Section 8 says: “The Council shall have the principal function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.”

The next question that must be asked is: What is the nature of such function? Is it legislative, executive or judicial?

Clearly its function is not legislative. The Constitution has not conferred law making power on it. Neither is its function judicial. The Constitution has vested judicial power solely in the Supreme Court and in such lower courts as may be created by law. By a process elimination, therefore, we come to the conclusion that the JBC’s power is only executive.

Indeed it is executive because it is a participation in the appointing power which is clearly executive in much the same way that the function of the Commission on Appointments, although performed by legislators, is also executive. Nor has the Constitution given the JBC any power to resolve issues such as has been given to the Comelec.

Among the three departments of government which one has the power to determine, whenever there is controversy, the legal allocation of powers among the various offices and agencies of the government? It is no other than the Supreme Court.

In the light of this, how can we justify the claim that it is the Judicial and Bar Council, an executive agency, that holds the power to determine who has the authority to appoint the next Chief Justice? The role of the JBC is much humbler.

The JBC is already in the process of preparing a list? There is nothing to prevent the JBC from doing that. But the crucial question is, after having prepared a list, must or may the JBC submit the list it has prepared to the incumbent President even in the face of the constitutional prohibition found in Section 15 of Article VII?

The question places the JBC in a difficult position. If it submits a list to President Arroyo, it will be seen as authorizing the President to make the appointment. If on the other hand the JBC refuses to submit a list, it will be seen as saying that President Arroyo does not have the authority. Being purely executive, the JBC has no authority to make either judgment.

Caught between these two horns, what may the JBC do? I suggest that the JBC submit a list “To Whom It May Concern.” Of course, it would be no surprise should the Palace decide that it is she “to whom it may concern.” But that would not be the JBC’s problem. And should the President make the appointment, it can create a justiciable controversy over which the justices can fight among themselves. And guess who will win?

Incidentally, contrary to a Philippine Star report on a recent forum, I never said that the President could appoint an acting Chief Justice; in fact I said the exact opposite, by analogy with the Court-repudiated appointment of an acting Comelec Chairman.

1 February 2010