Father Bernas Blogs

Chief Justice Renato Corona

2010-05-22T17:16:00.000-07:00

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 Malacañang “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

Mental Incapacity of an Incumbent President

2010-05-08T18:51:00.000-07:00

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

Failure of Election?

2010-05-01T16:53:00.001-07:00

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

Election Time Legalities

2010-04-24T17:53:00.001-07:00

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

2010-04-17T18:45:00.000-07:00

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

2010-04-10T17:24:00.001-07:00

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

2010-04-03T17:48:00.000-07:00

“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

What Happens Next?

2010-03-27T17:08:00.001-07:00

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

2010-03-20T17:45:00.000-07:00

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?

2010-03-13T16:36:00.000-08:00

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

2010-03-06T17:03:00.000-08:00

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.

8 March 2010

Pakisama as a Lawman’s Enemy

2010-03-06T16:58:00.000-08:00

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

Pakisama as a Lawman’s Enemy

2010-02-27T16:20:00.001-08:00

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

2010-02-13T17:06:00.000-08:00

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?

2010-02-06T18:36:00.000-08:00

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

2010-02-01T17:25:00.000-08:00

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

CHED Dialogue REsumed

2010-01-25T05:20:00.000-08:00

I received a letter from CHED dated 2 January 2010. It is signed by the Chairman and three Commissioners. I understand that a fourth Commissioner refused to sign the letter for reasons I understand perfectly. Nonetheless I must accept the majority vote as representative of the Commission’s collegial thinking. I propose to comment on three points mentioned in the letter.

1. Collegiality. The letter says: “While we admit that the Commission is a collegial body, such principle only applies to the policy making functions of the Commission.” Collegiality does not apply to “administrative matters, which are solely vested in the Chairman as the head of the instrumentality.” This, the letter says, is explicit in the Administrative Code.

My comments:

a. I still hope to be able to understand how administration and policy making can be surgically separated. My understanding is that the function of administration or management is precisely to carry out policy decisions. In my view, without the policy decisions there is nothing significant to administer. Thus, for instance, if an administrative order is issued saying that there should be CHED regional games or that regional directors should be shuffled, I would assume that these are in implementation of policy decisions made en banc.

b. It would be enlightening for everyone if the Commissioners can give examples of “administrative matters” which they have placed exclusively in the hands of the Chairman. I have the nagging suspicion that what might be involved here is unconscious dereliction of duty on the part of the Commissioners. If it is, it defeats collegiality. And to think that the Commissioners are all Ph.D holders!

c. The letter appeals to explicit exclusive authority of the Chairman found in the Administrative Code of 1987. I am fairly familiar with the 1987 Administrative Code but I must admit that, after combing the Code with my Mac’s search engine, I have not found the express provision referred to. In fact, CHED, unlike the case of other agencies, is not mentioned in the Code at all. CHED is governed by a special law, RA 7722.

I would be happy to be shown that I am wrong. But, the Commission’s view seems to contradict the Rules and Regulations implementing RA 7722 prepared by the duly authorized Transitory Body which says: “The Commission shall, in all cases, act as a collegial body. For purposes of a quorum, there shall be a majority of all the members or three commissioners present. The Chairman may vote to create or break a tie.”

d. This is not in the letter, but the lone dissenting Commissioner says that the Chairman now decides what are policy matters and what are administration matters. Is this true? If true, I suggest with due respect a contrary view: namely that deciding what matters belong to policy to be dealt with by the CHED en banc and what matters belong exclusively to the Chairman is itself a policy matter which should be decided en banc. I would be highly disappointed if the Commissioners supinely submit to the Chairman on this matter. After all, the powers of the Commission are expressly vested by RA 7722 in the Commission as a body and not just in the Chairman.

2. Advisory Body. A second point is about the Advisory Body mandated by RA 2277. Section 7 of RA 7722 says: “There shall be constituted a Board of Advisers which shall meet with the Commission at least once a year to assist it in aligning its policies and plans with the cultural, political and socioeconomic development needs of the nation and with the demands of world-class scholarship.” The law further enumerates the department heads who should be members of the body. Added to them are the President of the Federation of Accrediting Association of the Philippines (FAAP) and the President of the Fund for Assistance to Private Education (FAPE).

About this matter the letter of the Commissioners says: “Currently, we are of the impression that there is no compelling reason to convene them for consultation with regard to transcendental policies [sic] which might require their assistance. However, rest assured that the Board will be convened once a year pursuant to law.”

My comment:

Since by law the annual convening of the Board of Advisers is mandatory, I am sure that school administrators will be elated by the assurance that the Board “will be convened once a year pursuant to law.”

3. Private Accreditation Bodies. I already wrote a full article on this two weeks ago in the Inquirer saying that CHED has no legal authority over private accrediting agencies. The latest on this, however, is that a draft of Guidelines for accreditation has been circulated. Is the Chairman trying to provoke a fight?

Incidentally, a columnist-lawyer attacked “virulent me” for criticizing the views of the CHED Chairman who in his judgment is a model of democratic behavior. I would have wished that the lawyer columnist had bothered to use his legal skills to analyze the legal issues and thereby offer some light on the matter.

Final comment:

Let me just say that I have been commenting on the work of CHED not as a school administrator but merely as one who has devoted a major portion of my professional life to education. Because I am not a school owner or a school administrator, if I should “go to war” and question before proper authorities what CHED is doing, my legal standing to question CHED might be challenged. But School administrators would certainly have the required jus standi. Alternatively, they might push for a public hearing in lieu of or preparatory to filing a case.

But then concerned school administrators might just want to wait things out until July 20, 2010 when, if matters are allowed to follow their normal course, there should be a change in the composition of the Commission under a new President! It would be an astonishing legal miracle if the current President were allowed to fill vacancies which will occur after her term.

25 January 2010

The Comelec on Estrada Reelection

2010-01-20T17:06:00.000-08:00

The second division of the Comelec has decided that Joseph Estrada may run for reelection. As one Commissioner put it, the better policy is to let the people decide.

On the basis of that reasoning the Comelec should let Ely Pamatong run and lent the people decide!

But consider instead the following:

The subject was debated upon on July 25, 1986 as part of the consideration of the term of various elective officers. The Commission was presented with three possible options regarding the President’s term: (1) no immediate reelection; (2) no re-election; (3) unlimited number of reelections.

“No immediate reelection” meant the possibility of reelection after some interruption. Unlimited number of reelections meant just that. But what did “no re-election” mean? The following exchange took place:

BISHOP BACANI: I would like a clarification first. Does “No reelection” mean the President can never be reelected?

THE PRESIDENT [Cecilia Muñoz Palma]: I believe the motion is just for non-reelection, is it not?

MR. ROMULO: No reelection.

THE PRESIDENT: But it does not say forever.

MR. ROMULO: The meaning of no reelection is that the person can never run again – absolute ban.

BISHOP BACANI: Therefore, if she ceases from office she cannot run even after six years.

THE PRESIDENT: Even after?

BISHOP BACANI: That is the understanding. Thank you.

When the choices were finally put to a vote, 32 voted in favor of “no immediate reelection” and only 5 against.

Before the day’s session ended, however, Commissioner Ambrosio Padilla moved for a reconsideration of the decision. His motion to reconsider was approved 22 to 5.

In the ensuing debate, Commissioner Padilla was the main proponent of a perpetual ban on reelection while Commissioner Francisco “Soc” Rodrigo sought the retention of the original vote for “no immediate reelection.”

Before a vote was taken on the subject, the presiding officer made sure that the meaning of Padilla’s proposal was clear to all:

THE PRESIDENT: So, the effect of this is, the President will serve for six years without reelection. That carries a total ban on his being elected again at any future time to the position of President.

MR. PADILLA: That is a correct. It is a continuing prohibition for reelection.

Before the Commissioners cast their ballot, the President reiterated her clarification:

THE PRESIDENT: The vote will be “yes” if one is in favor of Commissioner Padilla’s proposal or “no” if one is against.

Forty-two (42) Commissioners cast their ballot. After the ballots were counted, the President made the announcement:

THE PRESIDENT: The results show 26 votes in favor, 15 against and 1 abstention; the proposal that the President will serve a six-year term without reelection at any time is approved.

That was not yet the end, however. Commissioner Serafin Guingona, who was the only one who had abstained in the voting on Padilla’s proposal, did not think that the matter was over.

MR. GUINGONA: I beg the Chair’s indulgence to present my proposal.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: My proposal is that the President shall be elected for a term of six years and may run for one reelection immediately after his term, provided that no President may serve for more than 12 consecutive years.

In effect, Guingona was asking for a reconsideration of the vote favoring Padilla’s proposal for a total ban. The body considered it a reconsideration and voted 31 against and 10 in favor.

The final action on the presidency, however, did not come until the body deliberated on the draft article on the executive department. The draft evidently had been prepared before the Commission could finish its consideration of the term of office of various national elective officials. Hence the draft still contained the following provision on the President: “He shall be disqualified from immediate reelection.”

On July 29, 1986, Commissioner Lorenzo Sumulong, in his sponsorship speech on the draft, pointed out that the word “immediate” should no longer be there. On July 30, during the period of amendments, Commissioner Hilario Davide, Jr proposed what is now the final version: “The President shall not be eligible for any reelection.” He explained his amendment thus: “The purpose of this amendment is to be consistent with what the body had approved in the matter of the term of the President.”

Before the final approval of the Davide amendment there ensued the following exchange:

MR. [FLORENZ] REGALADO: May we inquire from Commissioner Davide why he proposes that the President shall be completely ineligible for any future elective office lower than the presidency? . . . Would it not be possible that perhaps a former President may wish to share his talents and experience with the people by running for a lower position like that of a Senator?

MR. DAVIDE: He can. He is only banned from reelection, meaning to the same office, but not from running for any office. So the wording is very clear: “THE PRESIDENT shall be INELIGIBLE FOR ANY reelection.”

I am sure that by now Ambassador Davide has already heard that not a few refuse to see the matter as very clear. As for me, it is at least very clear that a former President, male or female, is qualified to run for Congressman, Senator or Vice-President!

But, wait! Is there an exception from the total ban in favor of an elected President who, for whatever reason, may have served for less than a full tenure? All I know is that no such exception was discussed or even proposed. There was no discussion whatsoever of length of tenure, but only of length of term.

21 January 2010

An End to "Midnight " Appointments

2010-01-16T16:08:00.000-08:00

I had originally planned to continue my dialogue with CHED on the issue of collegiality, but the issue of who should appoint the next Chief Justice has grown more sexy. Collegiality can wait.

Since, however, there are so many issues involved regarding the appointment of a Chief Justice after CJ Puno retires on May 17, I shall write in telegraphic style.

-- It is important to remember that the prohibition against appointments two months before a presidential election until the end of the incumbent’s term was inspired by the reprobation by the Supreme Court of President Garcia’s scandalous “midnight appointments” before President Diosdado Macapagal assumed office.

-- But the prohibition against midnight appointments in Article VII is general, whereas the command in Article VIII to fill the vacancy in 90 days is special to the Supreme Court. An accepted principle is that a special law creates exception to a general law.

-- But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive.

-- However, when laws are apparently in conflict, jurisprudence also says that efforts should be made to give effect to both when possible. Is reconciliation possible?

-- Yes, it is possible. The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until August 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.

-- The original period proposed for filling vacancy in the Supreme Court was 60 days; it was extended to 90 days without debate. [See Constitutional Commission deliberations.] Thus even the Constitution believes that the vacancy can wait 90 days. There is no rush to amend the Constitution now.

-- Moreover, according to the Aytona case (1962) and the Valenzuela case (1998), when the president-elect is known, the authority of the incumbent is only to ensure an orderly transfer of power. Call it an argument from morality or delicadeza. Under the automated elections, we should know who the next President will by May 17 or soon after.

-- The power to appoint is activated only when a vacancy occurs. Vacancy will occur only on May 17. But by then President Arroyo will only have power to make temporary appointments in the executive department. (Speaker Nograles’ contrary view is a premature attempt to amend the Constitution.)

-- Appointment is a two-way street: it involves offer and acceptance. A justice who accepts a prohibited appointment is complicit in the violation of the prohibition and opens himself or herself to impeachment for culpable violation of the Constitution.

-- Appointment to fill an anticipated vacancy is valid only if the person making the appointment still has the power when the vacancy occurs.

-- The President can appoint only from a list given by the JBC. Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC.

-- The JBC is duty bound to submit a list, but only when there is a vacancy, not necessarily sooner.

-- However, the JBC has no authority to decide whether Arroyo can appoint or not. The JBC can only prepare a list for whoever has authority to appoint. The JBC is not the Supreme Court.

-- In substantive issues, the Chief Justice has only one vote out of fifteen. In administrative matters, the CJ’s absence can be handled, and has always been handled, internally by the other justices of the Supreme Court through a designated temporary presiding officer. To say that the fourteen remaining justices will not be able to temporarily run the Supreme Court properly without a Chief Justice is to insult all of them, one of whom will almost certainly be the next Chief Justice.

-- Problems that can arise during the coming elections do not necessarily need a Chief Justice. (1) Administrative matters go to the Comelec first. (2) Contests in local elections go to local courts first or to the Commission on Elections. (3) Contests in congressional elections go to the Senate or House Electoral Tribunals where a Chief Justice does not participate. (4) Presidential election contests go to the Supreme Court; but the Chief Justice is not the Supreme Court. At most his is only one vote out of fifteen. (5) The same can be said about appeals to the SC of election cases. The quorum of the Court en banc is only eight, not fifteen.

-- The only instance I can think of where the presence of the Chief Justice might be indispensable is when the President is on trial on impeachment. But I cannot see that coming any time soon.

-- What is dangerous for the nation is not the temporary absence of a Chief Justice but the possible conversion of the Supreme Court into a play-thing of political powers. The Supreme Court itself should resist this. The Supreme Court boat is already listing weighted as it is by, among others, threatening endless reconsideration of decisions.

-- My suspicion arising from all of this is that the rush to appoint a Chief Justice before the swearing in of a new President is being orchestrated, out of unfounded fears or unstated political reasons, by forces in and around the Palace.

-- A final word. Those who want President Arroyo to appoint the next Chief Justice might attempt to persuade CJ Puno to retire much earlier than two months before the elections. That would not be a solomonic solution but an unwelcome political solution. I doubt that CJ Puno would want to leave that as his legacy after a distinguished career in law.

18 January 2010

Dialoguing with CHED

2010-01-09T16:49:00.000-08:00

I have received a letter from CHED Chairman Emmanuel Angeles commenting on my article on CHED and “martial law.” (Inquirer, 12. 21). [Incidentally I have a vague recollection that the Chairman started law studies at the Ateneo about my time.] I thank him for his letter and especially for the opportunity to dialogue with him on matters of great concern for us educators. The Chairman himself has published his letter by sending copies to various education offices.

First of all Chairman Angeles clarifies that whatever power CHED exercises over accrediting associations comes from Executive Order 705-A. A portion of the EO says that accrediting associations “shall not be subjected by the Commission on Higher Education (CHED) under process of institutional Quality Assurance and Monitoring and evaluation (IQUAME), provided that these accrediting agencies conform with a set of common standards formulated by a Coordinating Council (CCA), hereafter to be established by the CHED.”

Unfortunately the Chairman failed to notice that whoever formulated EO 705-A worded it very carefully. The text says that the standards would be formulated not by CHED but by the CCA consisting of representatives of private accrediting associations. The standards, in other words, would be a form of self-regulation by the accrediting associations, i.e., if they freely agree to do it. CHED would then serve merely as a conduit for the standards. Thus EO 705-A itself in effect recognizes that CHED has no authority over private accrediting associations.

I know that the DOJ, distracted perhaps by martial law concerns, released a sloppily written opinion in favor of CHED on this. [The opinion was probably drafted by CHED itself.] I have to ask the DOJ how they could create CHED powers out of nothing!

But for those who wept on my shoulder suggesting to me that CHED was imposing "martial law" on accrediting associations, Chairman Angeles has this to say: "To my knowledge, Father, CHED has not issued any governing policies, guidelines and requirements that mandate standardized fees, composition of accreditors, etc."

Two comments: First, a letter dated 14 January 2009 asks accrediting associations "to suspend upcoming accreditation activities . . . until the Coordinating Council for Accreditation (CCA) has formulated the standards and instruments for accreditation." [Rightly, accrediting associations have ignored this.] Second, the letter to me now seems to signal accrediting associations to proceed as before, but only until further orders. I say “until further orders” because the Chairman immediately adds: “Such guidelines, I hope, will be recommended to the Commission by the CCA in the near future as I requested.” What this addendum means is that the Chairman sees the CCA not as a self-regulatory body but merely as a recommendatory body with CHED or the Chairman making the final decision.

I have difficulty with this. First, EO 705-A itself implicitly recognizes that CHED has no power over accrediting associations. Second, I have not seen any law giving to CHED power over accrediting associations. It is a basic principle in law that public officers, whether individual or collegial, have only such power as are given to them by law. Not even the President can increase the power of CHED. If CHED’s power is to be increased, it has to be done by Congress.

The Chairman proceeds in his letter with some observations about the performance of accrediting associations. Let me enumerate:

1. He says: “After 52 years of accreditation, only 8.4% of our total programs in the country are accredited!”

Could it be that the fault is not in the accrediting system but in the educational system?

2. “Accreditation is expensive. . . . Some accreditors demand five-star accommodations not only for themselves but for their families as well.”

This is a serious accusation which accrediting agencies must address.

3. Transparency is indeed important in the accreditation system; a more rigorous training program for accreditors is also desired.

4. It is also important that schools properly understand the criteria, goals and objectives of program accreditation.

A penultimate remark of the Chairman says: “On the issue of ‘control by CHED’ that you raised, it is quite obvious that the situation on accreditation has deteriorated according to school heads because ‘CHED in the past did not exercise control on the accreditation process in spite of the generous subsidy provided to the accrediting agencies.’”

It is unfortunate that there might be some “school heads” who supinely would surrender the power of control to CHED. The Boards over which such school heads preside must investigate such betrayal.

Finally, the Chairman says: “In the future, I would be most grateful if you could contact me for elaboration on certain matters in the jurisdiction of CHED which is [sic] of interest to you before publishing it. I am open to dialogue anytime.”

I appreciate the invitation, but, as things stand now, the matters that interest me are not my interests alone. They are of great importance especially to the entire education community.

What is urgently needed is a public hearing and airing of CHED issues. Even the Chairman’s letter to me already contains rich material for public discussion. Private dialogues about matters of public concern can have the unwelcome result of burying important issues under dimmed memory or under a false cloak of executive privilege. Hence they should not be relegated to the level merely of matter for friendly private dialogue.

P.S. I have received a letter from CHED about collegiality but space limitations do not allow me to comment on it now.

11 January 2010

The Popes on Peace and Ecology

2010-01-02T17:06:00.000-08:00

One looking for a Catholic commentary on the social doctrine of the Constitution can find it in the writings of recent Popes. As is well known, recent Popes have written encyclicals which contain profound observations and exhortations about life in the modern world. In 1967 Pope Paul VI came out with his “Populorum Progessio,” (“On the Development of Peoples” } 1967) and his successor John Paul VI came out with “Sollicitudo Rei Socialis,” (“The Social Concerns of the Church”). Both documents might as well be commentaries on the social justice provisions of the Constitution.

He had barely warmed his seat when in 2006 Pope Benedict XVI published “Deus Caritas Est,” (“God Is Love,”) where he articulated the role of Christian love in society. It also included a significant statement on the role of the Church in the political arena, a statement which those who wish to instrumentalize the church for politics should note. He said: “The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.”

This was followed by "Caritas in Veritate" ("Charity in Truth") released last June. The encyclical ranges across various topics including family life, globalization, the financial crisis, labor, technology and the environment.

In writing about the environment, Pope Benedict was almost poetic. He noted “that integral human development is closely linked to the obligations which flow from man’s relationship with the natural environment. The environment must be seen as God’s gift to all people, and the use we make of it entails a shared responsibility for all humanity, especially the poor and future generations. . . Whenever nature, and human beings in particular, are seen merely as products of chance or an evolutionary determinism, our overall sense of responsibility wanes. On the other hand, seeing creation as God’s gift to humanity helps us understand our vocation and worth as human beings. With the Psalmist, we can exclaim with wonder: ‘When I look at your heavens, the work of your hands, the moon and the stars which you have established; what is man that you are mindful of him, and the son of man that you care for him?’ (Ps 8:4-5). Contemplating the beauty of creation inspires us to recognize the love of the Creator, that Love which ‘moves the sun and the other stars’”.

Recently, on December 8, 2009, in his message for the World Day of Peace, January 1, 2010, amidst the ambivalent results of the Copenhagen conference, he wrote about creation and eloquently entitled the document “If you want to cultivate peace, protect creation.” Noting the direction being taken by government policies, multinational corporations and even by individuals, he asked, “Can we remain indifferent before the problems associated with such realities as climate change, desertification, the deterioration and loss of productivity in vast agricultural areas, the pollution of rivers and aquifers, the loss of biodiversity, the increase of natural catastrophes and the deforestation of equatorial and tropical regions?”

Pope Benedict is not the first Pope to warn against the possible effects of abusing creation. Already on 1971, on the eightieth anniversary of Leo XIII’s Encyclical Rerum Novarum, Paul VI pointed out that “by an ill-considered exploitation of nature (man) risks destroying it and becoming in his turn the victim of this degradation”. He added that “not only is the material environment becoming a permanent menace – pollution and refuse, new illnesses and absolute destructive capacity – but the human framework is no longer under man’s control, thus creating an environment for tomorrow which may well be intolerable. This is a wide-ranging social problem which concerns the entire human family”.

John Paul II, in his Message for the World Day of Peace twenty years ago, emphasized our relationship, as God’s creatures, with the universe all around us. “In our day,” he wrote, “there is a growing awareness that world peace is threatened … also by a lack of due respect for nature”. He added that “ecological awareness, rather than being downplayed, needs to be helped to develop and mature, and find fitting expression in concrete programmes and initiatives”.

Benedict XVI echoes John Paul II in calling for a “greater sense of intergenerational solidarity.” “We have inherited from past generations, and we have benefited from the work of our contemporaries; for this reason we have obligations towards all, and we cannot refuse to interest ourselves in those who will come after us, to enlarge the human family. Universal solidarity represents a benefit as well as a duty. This is a responsibility that present generations have towards those of the future, a responsibility that also concerns individual States and the international community.”

4 January 2010

More on CHED

2009-12-26T17:11:00.001-08:00

I once had a kindly superior who, when he wanted to give an admonition, would often preface it with the words “Without reference to the past and looking only to the future . . .”, and then he would drop his bomb. Let that be my preface too for what I am about to write, because, from the reactions I received on my article last week on the “martial law” tendencies of CHED, I gather that I may have stoked a hornet’s nest.

I begin with the structure of CHED as laid out in RA 7722, CHED’s charter. It is not a one man or one woman body. It is a Commission, a collegial body, consisting of a Chairman and four members.

The requirements for appointment to the Commission are fairly demanding. They should be “holders of earned doctorate(s), who have been actively engaged in higher education for at least ten (10) years, and must not have been candidates for elective positions in the elections immediately preceding their appointment. They shall be academicians known for their high degree of professionalism and integrity who have distinguished themselves as authorities in their chosen fields of learning. The members of the Commission shall belong to different academic specialization.”

As if this were not enough, Section 7 of RA 7722 also creates a Board of Adviser "which shall meet with the Commission at least once a year to assist it in aligning its policies and plans with the cultural, political and socioeconomic development needs of the nation and with the demands of world-class scholarship." The Board of Advisers consists of Department Secretaries, the President of the Federation of Accrediting Association of the Philippines (FAAP) and the President of the Fund for Assistance to Private Education (FAPE).

A collegial body makes decisions normally by a simple majority vote. What comes out of the body is the decision not just of one person but of the entire body. A decision of one person, not even of the Chairman, is not a decision at all. Thus, for instance, rules and regulations coming from the body should be, for their validity, collegial decisions.

I make this point because I have been asked if I meant to attribute the “martial law” tendency of CHED, about which I wrote last week, to any particular person. Because CHED is a collegial body I must assume that what I call “martial law” tendency is emanating from decisions of the entire collegial body. If true, considering the demanding qualifications for membership in CHED and considering further the importance of education for democracy, I find it disturbing. If not true, it is even more disturbing, because it would mean that the members are not doing their job. Bato bato sa langit, kung tamaan huwag magalit.

If one examines Section 8 of RA 7722 which contains an enumeration of the powers of CHED, one will see that the powers are given not to any one person but to the Commission as a body. CHED is not any one person's fiefdom. Not even the Chairman is given any special power except, as implicit in the title Chairman, the power to call for and preside in deliberations. Again I must assume therefore that every decree and memo emanating from CHED has been the product of careful deliberation by the Commissioners and, where needed, after consultation with the Board of Advisers mandated by Section 7 of RA 7722. Thus if there is a hue and cry from the rank and file in CHED, as I have been told there is, against what CHED has been doing, it should be addressed to and answered by the officialdom of CHED and not just by one person.

But let me also repeat, as I indicated in my column last week, that as far as private accrediting associations are concerned, CHED has no power whatsoever. Even RA 7722 merely says in Section 14, "Accreditation. - The Commission shall provide incentives to institutions of higher learning, public and private, whose programs are accredited or whose needs are for accreditation purposes." Any intrusion into private accrediting associations is illicit usurpation. If I were a school President, I would simply consign those emanations to my circular filing cabinet.

Finally, I have been trying to figure out where the Chairman and the Commissioners stand in the administrative scheme of the government. Section 6 of RA 7722 says: "The chairman and the commissioners shall have the rank of a Department Secretary and Undersecretary, respectively. They shall receive the compensation and other emoluments corresponding to those of a Department Secretary and Undersecretary, respectively, and shall be subject to the same disqualification."

I am not sure if this means that the Chairman is a Department Head like the other Department Secretaries. If he is, would the principle of "qualified political agency" apply to him? The principle says that the heads of departments are alter egos of the President and the acts performed by them in the ordinary course of their functions are presumed to be the acts of the President unless the President expressly reprobates them. The principle is a vehicle for incriminating the President. However, what makes me wonder if the principle is applicable to the Chairman is the fact that, as I have indicated above, the Chairman has no powers independent of those of the Commission. And certainly the Commission is not a department head.

I should probably leave it that way and refrain from involving the President in the memos and decrees of CHED. Meanwhile, a Blessed Christmas to all and a hassle free New Year!

Send reaction to this article to bernas@admu.edu.ph.

28 December 2009

CHED Attempts "Martial Law" Over Accreditation

2009-12-19T17:38:00.000-08:00

There is a raging controversy at the moment between the Chairman of CHED and some presidents of private schools. A recent move of the CHED Chairman attempts to take control of the running of private accrediting associations.

Private accreditation of schools has been in existence in the Philippines for more than fifty years. Accreditation is defined as “a voluntary activity or process leading to the issuance of a certificate of accredited status by an organized body of educational institutions attesting to the quality or standards of a higher education institution or any of its educational programs, and to the effectiveness of the management and operations of the institution offering the program, as exceeding the minimum standards or criteria for government recognition as provided for in this Manual [of Regulations for Private Higher Education]." The Manual also says that accreditation "shall be voluntary in nature.”

Father Antonio Samson, S.J., President of Ateneo de Davao University and President of Philippine Accrediting Association of Schools, Colleges and Universities briefly relates the history of accreditation in the Philippines:

"Originally in 1957 the Philippine Accrediting Association of Schools, Colleges and Universities (PAASCU) was founded as a private cooperative effort among its dozen or so founding member-schools to improve the quality of education with the help of voluntary accreditation. In time, the government, through its Education agencies - Department of Education, Ministry of Education, Culture and Sports (MECS) , Department of Education, Culture and Sports (DECS) and the Commission on Higher Education (CHED) -- recognized the valuable work of PAASCU for improving the quality of education and extended schools by PAASCU various privileges and grants, including levels of curricular and administrative deregulation to autonomous status. This has given PAASCU a well-respected status, in the country as well as in the Asia-Pacific region and the world. After PAASCU, other private accrediting agencies were also established . . ."

Recently, however, CHED assumed the power to prescribe the governing policies, guidelines and requirements on accreditation including such details it may deem essential such as standardized accreditation fees, the composition of accreditors, and other matters internal to the associations.

It is elementary constitutional law that the power of the state over private education is merely one of “reasonable regulation.” Regulation is merely the power of a superior to insure that inferiors are acting within valid laws. Regulation is contrasted with the power of control which s the power of a superior to substitute his judgment for that of the inferior. CHED possesses no power of control yet he is attempting to exercise control.

It is also elementary constitutional law that individuals and groups have the right to form associations and that this right includes the prerogative of determining the direction of the association. CHED now wants to crash into private accrediting associations and dictate what directions they should take and how they should operate.

CHED claims to draw its power to impose its will on accrediting associations from Batas Bilang 232 and its implementing Rules as well as from RA 7722 creating the Commissin on Higher Education (CHED). CHED especially relies heavily on the detailed implementing Rules of Batas Bilang 232. Are these Rules valid?

It is elementary constitutional law that rules and regulations issued by administrative agencies are valid if three conditions are satisfied: (1) there is a law delegating rule making power; (2) the delegating law contains standards for the executive agency to follow; (3) the rules stay within the standards set by the delegating law.

What does Batas Bilang 232 say which the rules purport to implement? All it says is: “Section 29. Voluntary Accreditation - The Ministry shall encourage programs of voluntary accreditation for institution which desire to meet standards of quality over and above minimum required for State recognition.” Where is the delegated power to make rules for private accrediting associations? Where are the standards for the agency to follow?

CHED also relies on Section 8 of RA 7722, the law that gave it birth. Section 8(n) of the law authorizes CHED to “promulgate rules and regulations and exercise such other functions as may be necessary to carry out effectively the purpose and objectives of this Act.”

This leads us to ask what the “purpose and objectives of this Act” are. We find these in Sectiion 2 which contains the policy CHED is to follow: foster and promote affordable quality education; ensure and protect academic freedom; promote and foster continuing intellectual growth, research, effective leadership, promote high-level and middle-level professionals, and the enrichment of our historical and cultural heritage.

If we look at the powers actually given to CHED in Section 8, they have reference to CHED’s interest in the academic programs of educational institutions. Nothing there refers to a power of CHED over how private accreditation associations should be run. The whole law is a recognition of the function of CHED enunciated in Batas Bilang 232 which is to "encourage".

In fact, prior to the current CHED regime, CHED maintained “a policy environment, which enhances the private and voluntary nature of accreditation and protects its integrity . . . ” One naturally wonders what has brought about the current dictatorial tendency, and over private associations which have done so much at no public cost to improve the quality of Philippine education.

21 December 2009

After Martial Law. What?

2009-12-12T18:50:00.001-08:00

Now that martial law has been lifted, what issues remain? There are remnants of the martial law declaration that remain to be sorted out.

For one, rebellion and murder charges have been filed. What happens to them? The lifting of martial law does not terminate these charges. Rebellion and murder are crimes under the Penal Code. Prosecuting them is distinct from the government's task of justifying the imposition of martial law.

One question, however, which is still being asked is whether the charge of rebellion absorbs murder such that a rebel can only be convicted of rebellion and not of a complex crime of rebellion with murder. (I was asked this question probably because, as an Inquirer item said, I have been teaching criminal law since 1962 – even when I was not yet a lawyer!) At any rate, the established answer to the question is that rebellion absorbs murder if murder was committed in furtherance of rebellion. However, if murder was committed for a different reason, such as in furtherance of reelection or for other motives, it is a separate crime.

The meaning of rebellion in the Penal Code has been amply discussed in a number of cases decided by the Supreme Court. If the rebellion charges continue to be pursued, I am hoping that there will be a clear statement of the meaning of "armed uprising" as an element of the crime. True, the current jurisprudential literature says that for armed uprising to exist there must be people running around and actual fighting in the streets. But there is also the view that if a known hostile armed group is operating in an area, what matters is not how the hostile forces are deployed but what effect they are achieving; that is, whether in fact they are achieving the aims of rebellion such as depriving the President or the legislature in whole or in part of their powers.

This is also related to the view I expressed that it is not at all clear that rebellion in the Constitution is the same as rebellion needed for conviction under the Penal Code. It is not unheard of for the Supreme Court to give to a word in a law a meaning different from what it gives to the same word in another law. For instance, in at least one decision the Court has said that "defamation, fraud, and physical injuries" in Article 33 of the Civil Code are not the same as the same words in the Penal Code. I am almost certain that there are other examples.

Could the same be said of rebellion in the Penal Code and rebellion in the Constitution? After all, the two laws have different objectives. The Penal Code seeks to deter and punish; the Article VII, Section 18 of the Constitution seeks to maintain public safety. We have had decisions defining the meaning of rebellion in the Penal Code as involving massive movements, but none regarding rebellion in the Constitution. In the one instance that martial law was declared under the 1935 Constitution, our Court merely yielded to the judgment of the President. Moreover, in political and historical literature, rebellion is presented as a wide spectrum of varying levels of disturbances.

With martial law lifted, however, there will be no occasion to discuss this academic issue.

Incidentally, and this is now probably also an academic matter, I have also maintained that the power of the Supreme Court over a declaration of martial law is more limited than that of Congress. Aside from being able to interpret the meaning of rebellion, the Court can only review “the sufficiency of the factual basis of the proclamation.” The Court cannot determine whether the choice of martial law is the correct solution to a factual situation.

Congress has a broader power. Even if the factual basis for the proclamation is sufficient, Congress may still revoke the President's decision. The Constitution does not limit the grounds upon which Congress may base revocation. However, the vote needed is a majority of all the members of Congress voting jointly. This does not seem to be easy of achievement in the present Congress.

But what is the reason for requiring joint voting? My recollection of the deliberations of the Constitutional Commission is that the thinking was that the House of Representatives would be more libertarian than the Senate and thus would be more likely to go against a President with authoritarian tendencies and, by superior numbers, would be able to revoke martial law. But as someone has said, the wisest plans of mice and men have gone awry!

There is also the speculation that the President might save her Ampatuan allies through amnesty. In fact, this is not the only speculation circulating about what the President might do! Indeed, the fact of the matter is that under the power of executive clemency the President can grant amnesty generally to political offenders, but only with the conformity of a majority of all the members of Congress. As to pardon, the President has almost unlimited discretion to grant pardon, but only to those who have been convicted by final judgment.

Finally, in a situation of martial law, there are quite a number of legally disputable matters. To my mind, however, one thing is certain, namely that the intensity of the opposition to martial law today and the abundance of dire speculation are due to a great extent to the fact that the President does not enjoy high credibility. And her decision to run for the House of Representatives has not served to enhance her credibility.

14 December 2009

PGMA's Martial Law

2009-12-12T18:47:00.000-08:00

The massacre in Maguindanao has presented to the administration the challenge of having to find a solution that is at the same time constitutional and effective. The incident raises the question whether the 1987 Constitution, admittedly a reactive document, has armed the government with enough powers to deal with extraordinary challenges to peace and order and the protection of human lives.

I believe that the government will have to look for the solution to the problem within the parameters of the President’s Commander in Chief powers. These consist of three powers of graduated intensity: to call on the Armed Forces to suppress lawless violence or rebellion; to suspend the privilege of the writ with respect to specific crimes; and to impose martial law over the Philippines or over any part thereof.

Of these the most easily available is the power to call on the Armed Forces. But I am not surprised that the President has chosen the martial law option together with the suspension of the privilege of the writ. Who can reverse the President?

The Supreme Court can, so the new Constitution says. Martial law must be premised on the existence of public necessity brought about by actual rebellion or invasion. Hence the question that must be asked is whether rebellion exists. And what is rebellion?

The Penal Code says: “The crime of rebellion . . . is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

If the Penal Code is to be followed, the government would have to show that what is happening now satisfies the definition of rebellion as a criminal act. A crucial fact to verify would be whether there has been and there is an ongoing “rising publicly and taking arms against the Government” to achieve at least one of the enumerated goals.

But is rebellion as a criminal act defined in the Penal Code the same as rebellion for constitutional law purposes? My view is that it is not. My view is that the requirement of “rebellion” for purposes of constitutional law is satisfied if there exists an armed force whose activities have the effect of preventing the government from implementing its laws in any part of the Philippines?

Aside from the Supreme Court, Congress can also revoke the presidential proclamation by a majority vote of all the members of Congress in joint session assembled voting jointly.

But even if the requirement of rebellion is verified and thereafter martial law is declared in the lawless areas, the government will still have to contend with the safeguards introduced by the 1987 Constitution. These are safeguards inspired by the nation’s experience under martial rule. The 1987 Constitution now says: “A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”

As for the suspension of the privilege of the writ, it can only be justified by the existence of the same factual situation that can justify martial rule. Moreover, suspension of the privilege has also been subjected to limitations by the 1987 Constitution which now says: “The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

A conclusion that can be drawn from all these is that the 1987 Constitution manifests great reluctance to allow the activation of martial law powers and of the power to suspend the privilege of the writ.

But it is not as if the Constitution has tied the hands of government in the face of lawlessness of the magnitude of the Maguindanao massacre and the political culture that has given rise to it. The Commander in Chief still has the ordinary executive power and the extraordinary power to call on the Armed Forces to suppress lawlessness.

The power to utilize the help of the Armed Forces is available now. Clearly, there has been lawless violence. Moreover, indications are that the threat of more lawless violence exists.

Recent jurisprudence, however, has clarified that, although the President can call on the help of the Armed Forces to accomplish what is essentially the peace and order task of the National Police, the act of calling on the Armed Forces gives her no new powers for carrying out law enforcement. For instance, it gives her no power to make arrests without warrant except in those instances where warrantless arrests are allowed. Nevertheless, the “calling out” power, in the hands of a skillful President, is still a potent weapon.

To fully utilize this power, however, she will need determined political will and the vigorous cooperation of the judiciary. Unfortunately, there seem to be reports that the government is desperately in search of judges who have the courage to issue warrants and prosecutors who can act where needed even in the face of threats to them or their loved ones.

In the face of all this, the President has chosen the martial law option. I do not see either the Supreme Court or Congress revoking her decision now. Moreover, if she asks for it, Congress can extend martial law beyond sixty days.

Meanwhile the nation will be watching how she exercises the flexible martial law powers which, as experience tells us, can easily be abused.

7 December 2009

Denying Holy Communion

2009-12-12T18:43:00.001-08:00

I already wrote about this more than a year ago but, as election campaign again approaches, potential candidates who value their Catholic affiliation are asking about the same matter. It is no secret that some politicians do not agree with moral positions taken by some bishops and understandably they are concerned about what their bishio might do to them. Let me therefore rehearse what I said earlier.

What is the church law on this subject? I do not profess to be an expert in Canon Law. But what I have to say is what I myself follow. And when I first wrote about this, no Canon lawyer nor any bishop contradicted me. That probably says something.

Canon 915 of the Code of Canon Law enumerates three categories of persons who should be refused Holy Communion,: (1) those excommunicated through a penalty that has been imposed or declared; (2) those interdicted through a penalty that has been imposed or declared; (3) those who “obstinately persist in manifest grave sin.” Some explanation is necessary

First, what is the difference between an excommunicated person and an interdicted person? In general, an excommunicated person is excluded from the public life of the church. This would include holding church office or receiving the sacraments. An interdicted person, on the other hand, is one who is excluded only from certain liturgical functions.

How does one incur the penalties of excommunication or interdiction? According to church law, there are two ways of incurring a penalty: (1) automatically (or in church jargon latae sententiae) upon the commission of certain external acts clearly and specifically defined by law, and (2) upon the intervention of a competent ecclesiastical authority who declares officially and in legal form that a penalty has been imposed (ferendae sententiae).

What is important for purposes of refusal of Communion under Canon 915 is that the excommunication or interdiction must have been incurred not automatically but through an official imposition or declaration (ferendae sententiae). This means that to be legitimately refused Communion under Canon 915 there is need for a competent church authority (a bishop, a judge of an ecclesiastical court, a superior with respect to his subject through an extrajudicial or administrative act) to have issued a public instrument declaring that a penalty of excommunication or interdiction has been incurred by or imposed on a person. This should be a relatively rare case and would normally also be highly public and notorious.

The third category of persons who may be refused Communion under Canon 915 are those who “obstinately persist in manifest grave sin.” As one Canon lawyer wrote, “The description of the third category is bristling with qualifications; not ordinary run-of-the-mill sinners but sinners who persist; they do not merely persist, they obstinately persist; the sin is not only a grave sin, but one that is manifestly so.” In general, it would seem that such a case would be relatively rare. If I were a bishop, which I will never be, I would not be too eager to find a case fulfilling all these stiff requirements.

Usually placed under this category are people who may be cohabiting without benefit of the sacrament of marriage, or people who may have been divorced and are now living together on the strength of a civil marriage. One reason for excluding them is the fear that admitting them would give the impression that the Church is changing its teaching on the indissolubility of marriage.

But whether or not to exclude from Communion people in such marital relations is not always clear. There has been disagreement about the meaning of this third category. The disagreement has been around whether the subjective element of full knowledge and full consent, which is required for mortal sin, should also be considered for purposes of Canon 915. After all full knowledge and full consent are internal and beyond the knowledge of the minister administering Communion.

The authentic interpretation now seems to be that grave sin in Canon 915 is not the equivalent of mortal sin. Mortal sin requires full knowledge and consent which are known to the sinner himself but not to the minister who administers communion. For this reason the term “publicly unworthy” expresses better what is meant by persons who “obstinately persist in manifest grave sin.” The focus is on the external element of the act which can be known by the minister who administers communion. In other words, those excluded from communion must be “notorious public sinners.”

It should be remembered, moreover, that denial of communion is a restriction of a right. Hence, I would interpret the Canon strictly. Communion should not be denied if there is any doubt as to the fact of the sin, as to its notoriety or gravity, or as to the possibility that the person may have already been reconciled with the Church. Avoidance of scandal, after all, is not the supreme law of the Church. For my part, I would prefer a pastoral and not a confrontational approach. It must be kept in mind that church penalties are not intended to humiliate but to bring a person around to sorrow and contrition for sin.

Having said all that, I might be asked whether I would deny communion to legislators favoring the controversial bills on reproductive health. Let me just say that bishops themselves do not have a unanimous voice on the subject. I myself would not say that what legislators are doing now in a pluralist society is a manifestly grave sin enough to characterize the legislators as “notorious public sinners.”

30 November 2009

When Churchmen Campaign

2009-11-24T17:52:00.000-08:00

How is one to take the action of churchmen who hold positions of authority when, from the pulpit or through official pronouncements, they threaten politicians who support positions not to their liking with a church organized campaign against them in the 2010 elections? This can happen, for instance, against legislators who support the House Bill 5043, commonly known as the Reproductive Health Bill (RH Bill).

As election time approaches, legislators or potential legislators who support the Bill, may find themselves or will find themselves threatened by what might be called a “Catholic vote” – even if I myself do not believe that such a phenomenon exists.

There are two legitimate ways of looking at pressure from churchmen in the context of the House Bill 5043.

The first is the constitutional approach. The pressure position taken by some churchmen is supported by their constitutional right to the free exercise of religion and freedom of expression. They have every right to propagate what they believe to be morally correct, even if they might be wrong. I have always maintained that when a person becomes a cleric or a bishop, he does not thereby surrender his rights as a Filipino citizen. He even retains his right to make a fool of himself.

Constitutionally, I would even defend their right to pressure legislators who do not agree to follow their dictates under threat of loss of votes. The scope of allowable political persuasion is broad enough to accommodate tactics short of violation of the Penal Code or of the penal provisions of the Election Code. Such behavior would be less objectionable than earlier church tactics such as the burning of heretics at the stake. But the two methods are relatives.

As a churchman myself living ages away from the culture of the Middle Ages, I would offer arguments why a churchman should not use the pressure approach. Let me summarize my reasons. I have also borrowed some points made by a colleague of mine who has written more extensively about the subject.

First, the Catholic Bishops Conference of the Philippines in their Second Plenary Council warned pastors that “to take active part in partisan politics, in the wheeling and dealing it entails, would tend to weaken their teaching authority and destroy the unity they represent and protect.” And as one high ranking official has also said, to dictate to parishioners whom to vote for or not vote for is “as bad as buying their votes.”

Unfortunately, in 2007, the CBCP, while unwilling as a body to endorse or disapprove national candidates, expressed its willingness to see individual bishops endorse or denounce candidates for locally elected positions.

When a bishop does this from his position of authority and in official pronouncements, the inevitable conclusion that can be drawn is that the act is a partisan political intervention by the Church as an institution. This goes in the opposite direction of the 1998 CBCP Catechism on Church and Politics which denied the existence of a “Catholic vote.” One cannot fail to see that a bishop-initiated campaign against a political candidate effectively suggests what a Catholic vote should be. Such a campaign would tend to undermine episcopal teaching authority and destroy the unity it professes to represent and protect.

Another point I would make is that members of the laity and of the voting public are not mindless automatons. They are intelligent beings who under God are governed by the primacy of conscience. Indeed, the Church has a duty to help a person form his or her conscience when choosing among electoral candidates; but helping him or her to form conscience is different from imposing on a person the choice of whom to vote for. Recently, for instance, when in Charleston South Carolina a pastor told his parishioners that any person who votes for Obama should go to confession before receiving communion, he was rebuked by his own bishop.

The Congregation for the Doctrine of the Faith has put it succinctly. It declared that "the Church's Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding ‘contingent questions.’ Instead, it intends — as is its proper function — to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good.”

Clearly, House Bill 5043 is a very controversial piece of legislation involving “contingent questions.” Having studied it myself, I find myself unable to agree or disagree with it totally. It is a mixed bag, and even if it becomes law, controversy will continue to swirl around it. I would leave it to the conscience of individual legislators and voters how they should deal with the “contingent question” arising from the Bill.

Finally, the use of pressure on voters, even for religious reasons, is not much different from shot-gun or money politics. When religious leaders use pressure politics, they serve to perpetuate bad politics. There is now a loud clamor for an end to traditional politics. Pressure politics is traditional politics.

When the smoke of political battles have cleared, an important task will be unification and cooperation in the promotion of the general welfare. Those who have aligned themselves with the practitioners of pressure politics will find themselves diminished in their capacity to contribute to the task. It would be unfortunate if bishops who have an important role to play in the progress of our country will find themselves sidelined because, unable or unwilling to debate, they have chosen to dictate instead.

23 November 2009

The Failed Takeover Threat

2009-11-18T17:20:00.000-08:00

It will not happen now; there will be no takeover of the oil industry. But let us look at the two provisions in law which have been cited or hinted at as possible justification for a takeover.

The first is Section 17 of Article XII of the Constitution which says: "In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest."

The second is Section 14(e) of the Oil Deregulatin Law, which is a faint imitation of the constitutional provision. It says: In times of national emergency, when the public interest so requires, the DOE may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any person or entity engaged in the Industry."

To understand the import of these provisions it will help to trace the lineage of the constitutional provision. The Oil Deregulation Law provision is obviously just an attempt to apply the constitutional provision to the oil industry.

The constitutional provision deals merely with the temporary state take over of "the operation of any privately owned public utility or business affected with public interest." It is not authority for outright confiscation. But it is important to note that the provision was first introduced as Section 7 of Article XIV in the 1973 Constitution. It read: "In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." It was a product of the prevailing "martial law" thinking of the 1971 Constitutional Convention.

At the time of the approval of this provision, Letter of Instruction No. 2 of President Marcos dated 22 September 1972 was in effect. The Letter instructed the Secretary of National Defense, Juan Ponce Enrile, to take over "the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency."

It is therefore no surprise that Senator Enrile has been reported as saying that the government can takeover the operation of oil distribution.

The Marcos Letter of Instruction was among the executive acts which the Convention wanted transformed into a constitutional provision through Section 3(2), Article XVII of the 1973 Constitution. It was thus clear that in the mind of the Convention the power, as granted under the 1973 Constitution, could be exercised by the executive arm of the government. And it was for the executive arm to decide whether "national emergency" and "public interest" demanded the temporary take over.

It should also be noted that when Congress grants emergency powers to the President under Section 23(2), Article VI of the present Constitution, the powers cease upon the next adjournment of Congress unless sooner withdrawn by Congress. Under Section 17, however, no time limit is placed on the duration of the emergency take over. While the takeover would be temporary, the duration of the take over would be discretionary with the power that imposed it.

To repeat, Section 17 is a child of martial law born at a time when Congress had been scuttled! Section 14(e) of the Oil Deregulation Law, however, is an attempted of Section 17 even while Congress exists.

What is the status of Section 17 today? On the correct interpretation of Section 17 of the Constitution will depend the interpretation of Section 14(e) of the Oil Deregulation Law.

Section 17 deals with public utilities and "business affected with public interest." The oil industry is not a public utility but most certainly it is a business affected with public interest.

An important matter is the nature of the "emergency" that can justify takeover and the seat of the power that can declare the emergency. The emergency can be external aggression, internal conflicts, natural or man-made calamities or disasters. But who declares the emergency that can trigger the temporary takeover? Can Malacañang do it?

Section 17 is unclear on this matter and there is no authoritative judicial interpretation of the provision. The best we have is an obiter dictum in a 2006 decision which says that the power given by Section 17 is activated only when Congress grants emergency powers to the President under Article VI, Section 23. The Court said that Section 17 must be read with Article VI, Section 23 because Section 17 gives the power to the State and not to the President. The President acquires emergency powers when given to her by Congress in a state of emergency declared by Congress. Corollarily, therefore, Section 14(e) of the Oil Deregulation Act must await an emergency declaration by Congress.

I subscribe to this interpretation. The takeover of public utilities and business affected with public interest is too radical an action to be loft solely to the discretion of the President or of a Department Secretary. It is an entrenched doctrine, after all, that police power is activated only by legislative authorization.

16 November 2009

Congresswoman or VP Arroyo?

2009-11-18T17:19:00.000-08:00

In the light of the much talked about rumor of President Arroyo planning to run for a seat in the House of Representatives, someone asked me why we in the Constitutional Commission did not include in the Constitution a prohibition imposed on a sitting President not to run for a lower office. The only answer I could give was that no one of the Commissioners (not me, anyway) thought that a sitting President might be so humble as to seek a lower position.

And since there is no such prohibition, may she run for a seat in the House? For that mater, may she run for Vice-President, as some are suggesting now?

My position on constitutional matters is that what is not prohibited, whether expressly or implicitly, is allowed. The only constitutional prohibition I know on one who has been once elected President is that he or she may never run for election to the same office a second time. And since the right to aspire for office is itself an important constitutional right, any restriction on the right must be interpreted strictly and narrowly. The prohibition is only against running for the presidency a second time. Hence, GMA may not run for President again (unless the Constitution is amended to allow her or others in her position to do so), but she can even run for Barangay Tanod, should humility drive her to do so. It is for the electorate to decide whether to allow her to so abase herself.

Premature Election Campaign

Still simmering is the controversy over premature campaigning. The confusion arises from Sections 68, 79{a) and 80 of the Omnibus Election Code. Section 80 says: “It shall be unlawful for any person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan political activity except during the campaign period . . .” And according to Section 68 any candidate who is found by the Commission on Election to have violated the provision “shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office.” Moreover, a candidate is defined by Section 79(a) as “any person aspiring for or seeking an elective public office, who has filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties.”

From the above it can be seen that to commit an act that will subject a person to disqualification, that person must be a candidate, that is, one “who has filed a certificate of candidacy.” Thus, if a private person campaigns outside the campaign period but does not become a candidate, he has done nothing wrong. But if later he files his certificate of candidacy, the earlier act of the private person becomes, according to the Court, the act of the private person-turned candidate.

This is how eight Justices (with seven dissenting) have read the law. But this seems to me like ex post facto hocus pocus -- a person is penalized for having exercised freedom of expression!

5% “Campaign Contribution Tax”

I have enclosed “campaign contribution tax” in quotation marks because I am trying to figure out what the real nature of the tax is.

The first point to remember is that, except for the power to impose “tariff rate, import and export quotas, tonnage and wharfage dues and other imposts or duties” which Congress migh give to the President, taxes of any kind come from Congress. Is what is being called a campaign contribution tax something that has come from Congress or is it an illicit imposition being made by the BIR?

The way I understand the BIR’s explanation is that it is an application of an old withholding tax provision in the Internal Revenue Code which says “The Secretary of Finance may, upon the recommendation of the Commissioner, require the withholding of a tax on the items of income payable to natural or juridical persons, residing in the Philippines, by payor-corporation/persons as provided for by law, at the rate of not less than one percent (1%) but not more than thirty-two percent (32%) thereof, which shall be credited against the income tax liability of the taxpayer for the taxable year.”

Seen this way, it is not the politician or a political party that pays the tax but the person who is the politician’s or party’s source of contribution. Admittedly, however, the politician or the party will receive 5% less to spend!

True it is that the withholding tax provision has been there all along. But, to the best of my knowledge, it is only now that it is being applied to election campaign context. And since this imposition is being done for the first time as we approach what is developing to be a fascinating election, one naturally wonders what gave birth to this bright idea. We shall be hearing more about this.

Incidentally the same Internal Revenue Code, in the Section on Rates of Tax Payable by Donor, says that “Any contribution in cash or in kind to any candidate, political party or coalition of parties for campaign purposes shall be governed by the Election Code, as amended.” Does this have any relevance to donations specifically made for election campaign?

9 November 2009

CJ Puno in Context

2009-11-18T17:17:00.000-08:00

A recent political ad carried this truncated quotation from Chief Justice Reynato Puno: ". . . the better policy approach is to let the people decide who will be the next President. For on political questions, this Court may err but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to elect in behalf of the people."

The clear suggestion of the quotation is that constitutional requirements must yield to popular vote. Is that what Chief Justice Puno meant?

Justice Puno is in no position to answer the question now, but the Supreme Court spokesperson has said, presumably with authorization of Puno, that his statement must be read in context. I shall therefore try to read it in context.

The cited case was about Fernando Poe, Jr whose qualification for the presidency had been challenged on the ground that he was an illegitimate son of a Filipino father by an alien mother. The argument was that an illegitimate child follows the citizenship of the alien mother. Puno's reading of the Constitution and of jurisprudence on citizenship, however, was correct: what determines Philippine citizenship of an illegitimate child is the citizenship of the father provided that paternity is clear. For Puno, Poe's Filipino paternity was clear. Hence, he had no hesitation in affirming that Poe, Jr was a natural born Filipino citizen qualified to run for the presidency.

Puno also recognized that in evaluating the suitability of a candidate for the office being sought, the Supreme Court is guided only by the Constitution. The Court does not pay attention to constitutionally "irrelevant impediments" such as, to quote Puno's Prologue, "the disapprobation of political loyalty in our temples of justice, elimination of all invidious discrimination against non-marital children."

It is a different matter, however, for voters. Even if a candidate is constitutionally qualified, he may yet be rejected by the electorate. Voters look for other values than those that are enumerated among the qualifications for President and will consider even those which are constitutionally "irrelevant impediments."

Now to the quotation in the ad. It has been snipped from the Epilogue of Justice Puno to his separate opinion in the Poe case. The complete Epilogue says: "Whether respondent Fernando Poe, Jr. is qualified to run for President involves a constitutional issue but its political tone is no less dominant. The Court is split down the middle on the citizenship of respondent Poe, an issue of first impression made more difficult by the interplay of national and international law. Given the indecisiveness of the votes of the members of this Court, the better policy approach is to let the people decide who will be the next President. For on political questions, this Court may err but the sovereign people will not. To be sure, the Constitution did not grant to the unelected members of this Court the right to elect in behalf of the people."

How "indecisive" was the Court? Puno was the only justice who categorically held that Poe possessed the citizenship qualification. Three others held that Poe was not qualified; but the majority held that the issue of citizenship could only be definitively settled in an "election contest" should Poe win in the election. Puno, therefore, had to concede to what the majority wanted, namely that the voters must first act before the Court could pass on constitutionality. Thus he said, "Given the indecisiveness of the votes of the members of this Court, the better policy approach is to let the people decide who will be the next President."

But Puno himself was of the thinking of Justices Carpio and Tinga who categorically wanted the citizenship issue settled before the elections, contrary to what the majority wanted. Justice Carpio said, "The conduct of an election necessarily includes the initial determination of who are qualified under existing laws to run for public office in an election. Otherwise, the Comelec’s certified list of candidates will be cluttered with unqualified candidates making the conduct of elections unmanageable.”

More picturesquely Justice Tinga put it thus: "Let the people decide" is "the battle cry of those among us who opt to take the path of least resistance – to let the sovereign will chart the course of the Philippine political landscape. That argument is also a malaise, whether caused by academic sloth, intellectual cowardice or judicial amnesia, which has unfortunately plagued this Court. It is an easy cop-out that overlooks the fact that the Constitution is itself an expression of the sovereign will. The Filipino people, by ratifying the Constitution, elected to be bound by it, to be ruled by a fundamental law and not by a hooting throng."

Tinga added, "I harbor no pretensions of being wiser than our people when it comes to political questions. The questions raised, however, are not political but legal, and the people, by the same Charter to which they bound themselves, have reposed upon the members of this Court a duty to perform and an oath to uphold, to answer the hard legal questions and to blaze new trails in jurisprudence. . . . I see no reason why the Court should shirk from its constitutional obligation and allow the electorate to squander its votes on an ineligible candidate."

Briefly, therefore, as the sovereign people themselves have decided when they ratified the Constitution, whether a person is qualified to become President or not is decided not by ad hoc popular vote but by the Supreme Court.

2 November 2009

Of Abdication and Ballot Secrecy

2009-11-18T17:15:00.000-08:00

Two of the main legal objections against the automation being implemented by the Comelec was that, first, it constituted a wholesale abdication of the poll body’s constitutional mandate for election law enforcement and, second, that the mechanism of the PCOS machines would infringe the constitutional right of the people to the secrecy of the ballot.

How did the Court deal with these arguments?

The claim of petitioners was that by acceding to Art. 3.3 of the automation contract, Comelec relinquished supervision and control of the system to be used for the automated elections. They deduced loss of control from the fact that Comelec would not be holding possession of what in IT jargon are the public and private keys pair. But note the following exchange:

CHIEF JUSTICE: Well, more specifically are you saying that the main course of this loss of control is the fact that SMARTMATIC holds the public and private keys to the sanctity of this system?

ATTY. ROQUE: Yes, Your Honor, as well as the fact that they control the program embedded in the key cost that will read their votes by which the electorate may verify that their votes were counted.

CHIEF JUSTICE: You are saying that SMARTMATIC and not its partner TIM who hold these public and private keys?

ATTY. ROQUE: Yes, Your Honor.

The Court was not convinced. The abdication argument, the Court, said was a simplistic conclusion. “The petitioners, to stress, are strangers to the automation contract. Not one participated in the bidding conference or the bidding proper or even perhaps examined the bidding documents and, therefore, none really knows the real intention of the parties. As case law tells us, the court has to ferret out the real intent of the parties. What is fairly clear in this case, however, is that petitioners who are not even privy to the bidding process foist upon the Court their own view on the stipulations of the automation contract and present to the Court what they think are the parties’ true intention. It is a study of outsiders appearing to know more than the parties do, but actually speculating what the parties intended.”

Note also the following exchanges:

CHIEF JUSTICE: Why did you say that it did not, did you talk with the Chairman and Commissioners of COMELEC that they failed to perform this duty, they did not exercise this power of control?

ATTY. ROQUE : Your Honor, I based it on the fact that it was the COMELEC in fact that entered into this contract ….

CHIEF JUSTICE : Yes, but my question is – did you confront the COMELEC officials that they forfeited their power of control in over our election process?

ATTY. ROQUE : We did not confront, your Honor. We impugned their acts, Your Honor.

As to the control of public and private keys, the Court noted that initially petitioners were “cocksure” about this. But on further questioning their answer manifested a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not demand that it have access, that it be given access to and in fact generate its own keys independently with SMARTMATIC so that it would be COMELEC and not SMARTMATIC that would have full control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to generate these keys, xxx.

The speculative nature of the argument of petitioners became clearer later:

CHIEF JUSTICE: Yes, but did you check with the COMELEC who will be holding these two keys x x x did you check with COMELEC whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your Honor.

x x x x

CHIEF JUSTICE: Why do you make that poor conclusion against the COMELEC x x x May not the COMELEC hire the services of experts in order for the institution to be able to discharge its constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance on individuals who do not have the same kind of accountability as public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not consult with available I.T. experts in the country before it made the bidding rules before it conducted the bidding and make the other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not confer with the I.T. Foundation x x x.

CHIEF JUSTICE: But is that foundation the only expert, does it have a monopoly of knowledge?

On the matter of ballot secrecy, this is what the Court said:

“Surely, the Comelec can put up such infrastructure as to insure that the voter can write his preference in relative privacy. And as demonstrated during the oral arguments, the voter himself will personally feed the ballot into the machine. A voter, if so minded to preserve the secrecy of his ballot, will always devise a way to do so. By the same token, one with least regard for secrecy will likewise have a way to make his vote known.”

Finally, what I find refreshing about the Court’s decision is that it did not attempt to substitute its judgment on technical matters for the judgment of the officials charged with the responsibility to make that judgment. It limited itself to verifying what the Automation Law demanded. True it is that the Court can nullify the acts of executive officials who have committed grave abuse of discretion amounting to lack or excess of jurisdiction. But the Court will not easily attribute grave abuse of discretion to an independent body like the Comelec on a matter over which the independent body has the mandate and expertise.

14 September 2009

Of Abdication and Ballot Secrecy

2009-11-18T17:14:00.000-08:00