angelic moo

2011-12-14T00:44:00.000-08:00

Obscenities inCourt Opinions: Some Thoughts

There is a disturbing trend inrecent Supreme Court decisions that needs to be immediately addressed. In a number of cases involving the crime ofrape, the word “fucked” appears many times either as part of the stenographicnotes of the direct examination of the complainant or in excerpts of the trialcourts’ decisions under review. The wordis used as a translation of the complainant’s testimony describing an allegedrape.

The word first appeared in 1983 inthe case of People v. Banasen, andsince then has appeared in seventeen other decisions. In these decisions, the word appeared forty-fourdifferent times. The most recentdecision is a May 2011 ruling. Thefollowing are the cases:

People of the Philippines v. Domingo Banasen, G.R. No. L-55487, December 21, 1983.	2
People of the Philippines v. Jessie Mayoral, G.R. Nos. 96094-95, November 13, 1991.	1
People of the Philippines v. Edgar Sadang, Arnulfo Sayo, and Leodigario Espinar, G.R. No. 105378, June 27, 1994.	2
People of the Philippines v. Roger Laray, Rewel Rabanes, Noli Enerio, Federico Laray, and Gorospe (Juario) Omilao, G.R. No. 101809, February 20, 1996.	3
People of the Philippines v. Cabillan, G.R. No. 117684, January 30, 1997.	5
People of the Philippines v. Reynaldo Acala, G.R. Nos. 127023-25, May 19, 1999.	1
People of the Philippines v. Domingo Brigildo, G.R. No. 124129, January 28, 2000.	1
People of the Philippines v. Delano Mendiola, G.R. No. 134846, August 8, 2000.	1
People of the Philippines v. Rogelio Bulos, G.R. No. 123542, June 26, 2001.	1
People of the Philippines v. Mario Hamto y Coderas, Ronald Cuesta y Overo, Fernan Pervera (At Large), G.R. No. 128137, August 2, 2001.	3
People of the Philippines v. Bonifacio Ariola, G.R. Nos. 142602-05, October 3, 2001.	4
People of the Philippines v. Fernando Cañaveral, G.R. No. 133790, August 1, 2002.	4
People of the Philippines v. Artemio D. Ochea, G.R. Nos. 146452-53, December 10, 2002.	5
People of the Philippines v. Rodrigo “Rudy” Opeliña and Mary Rose Leones Opeliña, G.R. No. 142751, September 30, 2003.	1
People of the Philippines v. Ricardo Balatazo, G.R. No. 118027, January 29, 2004.	4
People of the Philippines v. Salvador Nieto y Cabalse @ “Ador”, G.R. No. 177756, March 3, 2008.	2
People of the Philippines v. Pedro Nogpo, Jr. a.k.a. “Tandodoy”, G.R. No. 184791, April 16, 2009.	3
People of the Philippines v. Ernesto Mercado, G.R. No. 189847, May 30, 2011.	1

This tally excludes the use of“fuck”[1]because in these cases, they are uttered by the lawyers or the judge when theyare asking the witnesses questions and not uttered by the witnesses themselveswhen they are describing the commission of the offense. I am concerned here with the translation ofthe word when uttered by the complainant. I think that mistranslating the testimony into “fucked” has a particularharm to the complainants.

“Fuck” is a vulgar term that has noplace in a court opinion. I have yet tocome across a dictionary that says otherwise. Of course, the word should appear in a court decision whenever it isrelevant as when use of the word might be an element of a crime. It may also be relevant when the use of theword is alleged as a provocation to justify an assault. The use of the word cannot be avoided if theissue is whether the phrase “Fuck the Draft” is protected speech under the U.S.Constitution.[2] It is pertinent in a case where the issue isthe extent of the power to censor television shows.[3]

In rape cases,the use of vulgarities does little to restore the dignity of the victims. It debases the victim further by shroudingthe alleged crime in foul language.

The other problem with the use ofthis obscenity is that it connotes consensual sex. Whenpeople “fuck” they copulate. They havesex. The use of the word suggests thatthere was force or intimidation used in the act. When judges evaluate the evidence after theparties have rested their case, does it affect their appreciation of theevidence when it appears that the sex was consensual? It seems obvious to me that there is a huge difference when the complainant says "he raped me" and when she says "he fucked me." I suspect that the mistranslation can havethat unintended effect: a subliminal mantra that suggests the innocence of theaccused. What crime was committed whenthe sex was consensual?

I do not suggest that courtstenographers are a crude lot. I do notsuggest that the task of translating the testimonies of witnesses is an easyone. But I think the legal professioncan do better than this. The word wasused first in 1983.[4] Before then the courts used other ways totranslate the alleged rape. Why then didwe need to shift to the use of crude language?

I may be overstating the problem,but at the very least, courts should ensure that their opinions are bettercrafted than scrawling on a bathroom wall. The Judiciary should address this problem to dignify both thecomplainants and the profession as well.

[1] See e.g. People v. Siao, G.R. No. 126020, March 3, 2000, People v.Galeno, G.R. No. 135976-80, June 20, 2001, and People v. Bracero, G.R. No. 139529, June 20,2001.

[2] Cohenv. California, 403 U.S. 15 (1971).

[3] Soriano v. Laguardia, G.R.No. 164785, April 29, 2009.

[4] Technically, “fuck”first appeared in People v. Alipis, G.R. No. L-17214, June 21, 1965. The word was not uttered in the course of thecomplainant’s testimony.

South Cotabato's Ban on Open Pit Mining

2011-09-28T06:59:00.000-07:00

Late last year, DILG Secretary Jesse Robredo said that the provincial government of South Cotabato did not have the power to ban open-pit mining and should instead review its Environmental Code that prohibited such mining method.[1] According to Robredo, “The Philippine Mining Act of 1995 does not prohibit open pit mining. A local government ordinance cannot undo an act of Congress.”[2] In a Memorandum Circular dated November 9, 2010, Robredo directed the provincial government of South Cotabato to review its Environmental Code. According to the Memorandum Circular, "[i]n view thereof, you are hereby enjoined to cause the immediate suspension of the implementation of said ordinance pending its review.”[3]

Secretary Robredo’s actions in this case are inconsistent with law.

a. Robredo’s legal analysis is flawed.

There is no law that prevents local governments from imposing additional strictures to safeguard the environment so long as it does not contradict an express provision of law. The Mining Act of 1995 does not prevent local governments from banning open-pit mining or from adopting measures that protect the environment. The efforts of South Cotabato in banning open-pit mining may also be justified as a police power measure under the Local Government Code.[4] Ordinances enacted by local governments must be consistent with the Constitution and national laws.[5] But if an act is not prohibited by national law, there is no reason why the prohibition cannot be required by an ordinance. Thus, in Newsound Broadcasting Network Inc. v. Dy,[6] the Supreme Court held that:

Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses.

In another case, the Supreme Court recognized the power of local government units to prevent the operation of drug stores despite the fact that they were authorized by the Food and Drug Administration.[7] In that case, the Court held that (then) Mayor Richard Gordon could not disallow the operation of a drugstore after it was allowed to operate by the FDA. “However,” the Court continued, “it was competent for the petitioner (Gordon) to suspend Mayor’s Permit No. 1955 for the transfer of the Olongapo City Drug Store in violation of the permit.” In other words, while the Mayor could not contradict the decision of the FDA in allowing drugstores to operate, he can prevent their operation for their failure to follow local ordinances. National and local laws are two separate hurdles that can impose an entirely different set of standards.

b. Secretary Robredo exercised control over a local government.

The President does not have the power of control over local government officials, only the power of supervision. Supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. Thus, if the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.[8] Since local government units are subject only to the power of general supervision of the President, the President’s authority is limited to seeing to it that rules are followed and laws are faithfully executed. “The President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules.”[9]

In the case of South Cotabato, Robredo reversed the decision of local officials of South Cotabato and in effect, he violated the Constitution.

c. Secretary Robredo usurped judicial functions.

DILG Secretary Robredo also usurped judicial functions by claiming that the ordinance is illegal and should be struck down. The Constitution empowers courts to determine the validity of laws.[10] The Constitution gives the Supreme Court the power to “[r]eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in: All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.[11] Nowhere in the law is the Interior and Local Government Secretary empowered to assess the constitutionality or validity of an ordinance.

For his part, South Cotabato Governor Arthur Y. Pingoy Jr. said that his administration will implement the South Cotabato Environment Code that the previous provincial board passed last year. He correctly pointed out that “[a]s the governor of this province I have to implement the ordinance. There will be no open-pit mining operation in the province of South Cotabato unless and until this ordinance will be nullified by the proper court.”[12]

[1] Daxim Lucas, DILG says Cotabato open-pit mining ban illegal, Philippine Daily Inquirer, December 9, 2010. Available at http://business.inquirer.net/money/topstories/view/20101209-308059/DILG-says-Cotabato-open-pit-mining-ban-illegal. The Tampakan Mine is considered as the biggest undeveloped copper-gold prospect in Southeast Asia and is one of the biggest foreign investments in the country. It is owned by the Australian mining firm, Xstrata PLC while conglomerate San Miguel Corp. owns a minority stake in the project‘s minority partner, Indophil Resources. The mine is estimated to contain 13.5 million tons of copper and 15.8 million ounces of gold, but the estimated 2016 commencement of its production run remained in doubt because of the prevailing ban. Id.

[2] DILG: South Cotabato Governor Cannot Ban Open Pit Mining, Department of Interior and Local Government, December 9, 2010. Available at http://www.dilg.gov.ph/news.php?id=54&newsCategory=Central.

[3] South Cotabato guv junks local government chief’s order, Sun Star Davao, December 3, 2010. Available at http://www.sunstar.com.ph/davao/local-news/south-cotabato-guv-junks-local-government-chief-s-order.

[4] SECTION 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.

[5] The Solicitor General v. The Metropolitan Manila Authority, G.R. No. 102782, December 11, 1991.

[6] G.R. Nos. 170270 & 179411, April 2, 2009.

[7] Gordon v. Verdiano II, G.R. No. L-55230, November 8, 1988.

[8] Hebron v. Reyes, G.R. No. L-9124, July 28, 1958.

[9] The Province of Negros Occidental v. Commissioners, G.R. No. 182574, September 28, 2010.

[10] Brokenshire Memorial Hospital, Inc. v. Minister of Labor and Employment, G.R. No. 74621, February 7, 1990.

[11] Constitution (1987), Art. VIII, section 5.

[12] Dani Doguiles, South Cotabato stays pat on implementation of environment code, PIA Press Release, September 26, 2011. Available at http://www.pia.gov.ph/?m=1&t=1&id=56180.

Justice Puno's Call for Charter Change

2011-01-11T16:22:00.000-08:00

Former Chief Justice Reynato Puno's call for renewed debate for constitutional amendment was disappointing. Justice Puno made his call during the inaugural lecture of the UP College of Law's Centennial Lecture Series. However, he cited no new reasons for the debate and there was an unsettling JDV-esque ring to his entire lecture. Many of these grounds he cited as reasons for change have already been examined and debunked by scholars. One recycled argument--legislative gridlock is presently being addressed by the Aquino administration by holding a Cabinet workshop to identify priority bills that will be presented to the Legislative Executive Development Advisory Council. These steps are being taken precisely to address potential gridlock.

I expected more from the first lecture that starts the UP College of Law's centennial lecture series. I thought it should have been a scholarly forum that examines important legal issues and not a venue for political posturing.

Mayor Insensitive

2010-08-29T00:00:00.000-07:00

Emotions are still running high after the botched hostage rescue attempt in Manila that involved the death of 8 Hong Kong nationals. In yet another sign of insensitivity to the grieving families, Mayor Alfredo Lim declared the Manila police as "heroes." This statement comes after denying that he had ordered the arrest of Rolando Mendoza's brother Senior Police Officer Gregorio Mendoza. The arrest allegedly infuriated the hostage-taker and drove him into a killing spree. Lim contradicted Congressional testimony offered by Chief Superintendent Rodolfo Magtibay. To date, no one is claiming responsibility for ordering the arrest.

Of course the police did their best under the circumstances. There is no denying the fact, however, that the police exercise was botched. The world witnessed it how our ill-prepared police officers ended the crisis with the death of eight tourists. I will not presume to know how the people of Hong Kong feel about the situation. I can imagine what it would feel like if we had been watching our countrymen die because poorly trained and poorly equipped police officers mounted a poorly executed rescue attempt.

Lim's responsibilities do include protecting the reputation of the police forces under his control. I doubt they include muddying the truth to make the police ranks feel better about themselves. Perhaps Lim should consider how the people of Hong Kong feel before pinning medals on the police.

Seeking redress from Japanese Courts

2010-08-24T09:50:00.000-07:00

I just finished an article by Nobue Suzuki entitled Outlawed Children: Japanese Filipino Children, Legal Defiance and Ambivalent Citizenships (Pacific Affairs, Volume 83, Number 1, March 2010, pp. 31-50) which chronicled the legal battle waged by children born of Japanese men and Filipino women to acquire Japanese citizenship. Japanese law restricted citizenship in these cases only if the father acknowledged paternity before the child is born or if the parents were to marry.

In 2008, the Supreme Court of Japan declared this law unconstitutional for being discriminatory. Suzuki writes that this is only the 7th time in its history that the Court had declared a law unconstitutional. I am amazed that the Court demonstrated a willingness to strike down a decades-old law to right what they perceived to be a wrong foisted upon innocents. It stands in contrast to the plight of comfort women in the Philippines who were recently told by the Supreme Court of the Philippines that they "appear to be without a remedy to challenge those that have offended them before appropriate fora."

Justice Lourdes Sereno

2010-08-13T08:47:00.001-07:00

Selecting a Supreme Court Justice is an important and delicate task. Many lawyers are undoubtedly up to the task. Of late they have come with impeccable academic credentials, advanced degrees, prior judicial experience, teaching experience (especially abroad), or a list of scholarly publications. With an increasingly homogeneous pool of nominees, the trick for the President is to determine who should be appointed. Is there something different about a candidate that stands out? Is there something in this mass of data that suggests how a potential Justice will conduct herself if appointed?

There was perhaps one bit of information that could have caught the President Aquino's attention when he was examining the latest list submitted by the JBC. When Chief Justice Renato Corona was appointed Chief Justice towards the end of President Gloria Arroyo's term, there was a genuine issue as to whether the President was then covered by a constitutional ban against "midnight appointments." The Supreme Court ultimately resolved the issue in favor of the President.

Interestingly, in her column in BusinessWorld, Solita Monsod wrote that Lourdes Sereno then sent a fax to the new Chief Justice protesting his midnight appointment. Her decision to send a fax, regardless of the possible implications on her career, demonstrated her commitment to her principles. Others might have avoided making politically risky statements to preserve ties with members of the Court (which has influence on the JBC) and to avoid ruining their chances of appointment. Principled stances can ruffle feathers and endanger professional goals. Professor Lourdes Sereno sent the fax anyway and faced the Chief Justice and the Judicial and Bar Council's interrogation.

Justices should demonstrate the same mettle and commitment to principle. They should make decisions based on what is right, not what personal affiliations dictate and regardless of what personal consequences may befall them. For that reason alone, Justice Sereno stood out as an outstanding appointee to the Supreme Court.

Vinuya and the Redemption of the Supreme Court

2010-07-30T21:49:00.000-07:00

The Philippine Supreme Court, which is presently examining the charges of plagiarism in the case of Vinuya v. Executive Secretary, cannot resolve the issue without demanding the resignation of its ponente, Associate Justice Mariano del Castillo. With the international legal community looking on the Court cannot sweep this issue aside and say there was no plagiarism--there clearly was--and that the US sources used in the decision were incorrectly applied--because they were. The authors have protested the misuse of their scholarship to further ends that they do not support: the absence of recourse to international law remedies for victims of sexual abuse during the Second World War.

If the Court sanctions these shortcomings, it informs the world that the victims of Japanese occupation during World War II have no legal recourse according to plagiarized and misinterpreted sources. Nothing could be so appalling and dishonorable.

Justice del Castillo's resignation is necessary to save the Court's reputation. It will show that the Philippine Judiciary does not tolerate intellectual dishonesty and the misuse of sources in writing decisions. More importantly, the misuse of these sources has evidently produced a work of great injustice in the continuing plight of comfort women in the country. A serious reexamination of Vinuya is clearly in order.

Plagiarism and Judicial Integrity

2010-07-25T07:41:00.001-07:00

The faculty of the UP College of Law will come out with a statement on the allegations of plagiarism against the Supreme Court in the case of Vinuya v. Executive Secretary (G.R. No. 162230, April 28, 2010). The statement will carry my sentiments so there is no need for me to elaborate on my position here. I add only a few thoughts:

I cringe at the thought that at some point in the future, the works of the judiciaries of the world will be compiled and examined to see what States do to vindicate the rights of their citizens. In that collection, the Philippines will offer a Supreme Court decision saying that comfort women who were raped by invading Japanese soldiers during the Second World War "appear to be without a remedy to challenge those that have offended them before appropriate fora." That decision will be founded on plagiarized works, that in fact argued the exact opposite: that these victims do have remedies under international law.

The Supreme Court should take steps to avoid this potentially appalling spectacle. Its shortcomings will have consequences not only on the integrity of the Court, but also on the dignity of every member of the bar. The obvious step is not to dismiss the charges as baseless but to call out those who did wrong and mete out the proper penalties. It should then reexamine the Vinuya if only because the bases for that decision now appear to be based on a misunderstanding of its sources.

The status quo is a no-win situation for the profession. The Supreme Court must take the steps, however painful they may be, that will restore its credibility not only before the eyes of the international legal community, but the petitioners in Vinuya who had placed their faith in the Court as an impartial and competent tribunal.

Suggested response for the President-Elect on the issue of smoking

2010-05-30T17:20:00.000-07:00

President-elect Benigno Aquino III responded coldly to suggestions that he stop smoking now that he will assume the Presidency. Aquino basically said that he cannot stop smoking because his job as a President will be too stressful. Aquino's response was a wasted opportunity, not only to set an example to others, but to sound like a President. His response shows that he does not yet understand his role as the country's leader. As the President, Aquino should inspire Filipinos to overcome the challenges they face, as individuals and as a nation. Smoking is both an individual challenge and an international health issue. Instead of projecting the ability to overcome an unhealthy habit, Aquino disappoints the public by acknowledging defeat without the faintest effort. This is not the way to inspire a nation. He is obviously unprepared for the press' questions. As a result, he reveals traits that are uncharacteristic of good leaders.

Here is a suggested response to the press:

I recognize that smoking is a serious public health issue. World health experts have established the dangers of smoking not only to oneself, but also to others. I will do my part to join the worldwide efforts to improve our health by vowing to stop smoking. This is not an easy task, but I know that with help from my friends and family, it is one that I, and all Filipinos, can achieve.

I am not suggesting that Aquino should make an empty promise. I am suggesting that as the President he should stop smoking or at the very least, try.

Agra and the Ampatuans

2010-05-23T18:59:00.000-07:00

It has been suggested that the public prosecutors' public disagreement with Justice Secretary Alberto Agra's decision not to indict two members of the Ampatuan clan with the November 2009 massacre serves as an indictment of the Secretary's position.

The prosecutors may have been right. Unfortunately, the Secretary acted within his powers when he disagreed with them. The prosecutors should have hoped that the President would reverse the Secretary. Instead, by publicly objecting to the exclusion of certain members of the Ampatuan clan from the case, they weakened our institutions.

Lower courts too, incidentally, may disagree with the Supreme Court. Lower court judges, however, do not make public statements about how the Supreme Court erred. Under the system, their decisions can be subjected to review and reversed by higher courts. Whether the higher courts are right is irrelevant. Lower courts fall in line because that is the way the system keeps itself together. Litigation will provide higher courts with the opportunity to correct themselves.

The danger with the prosecutors' act was that it encourages everyone to bypass procedure. Procedure may seem cumbersome or counterproductive but they are established to ensure fairness. Rules are designed to ensure the rule of law. The prosecutors' public disagreement ignores the hierarchy that is inherent in the executive branch of government. Had the President sustained Agra's decision, would it have been somehow irregular? The fact is that under our system of government, superiors can reverse findings of their subordinates.

I am hoping that in the resolution of this case, we allow the evidence to determine the guilt of the defendants, not our collective outrage at what was easily the worst act of political violence in the history of our country.

Mob Justice?

2010-04-21T03:37:00.000-07:00

Like everyone else, I want to see those responsible for the Ampatuan massacre (carried out last November 23) pay for their crimes.

I was a little confused about the public's reaction to Secretary Alberto Agra's decision to dismiss the charges against two members of the Ampatuan clan. Agra has a privileged perch--one that allows him to assess the evidence against every potential defendant in the case. How then can we object to his decision? Have we all prejudged the case and determined that the entire clan is responsible for the massacre?

There were insinuations that Agra's decision was part of a compromise to secure clan support for the administration during the May 10 elections. If true, then popular uproar would have been justified. But I saw no proof of this alleged deal.

Agra has since reversed his decision. I wonder, however, if the public will be more tolerant when courts get their turn to determine the guilt of those who are ultimately charged with the crime. Will we object if any of the defendants are found innocent? Do we find other reasons for the defendants' release other than the fact that the evidence did not prove their guilt beyond a reasonable doubt?

Should we even bother with a trial or simply lock up all the defendants now?

Midnight Appointments: A Conspiracy Theory

2010-03-30T18:31:00.000-07:00

Lawyers should be surprised that Supreme Court spokesperson Midas Marquez recently issued a statement regarding President Gloria Macapagal-Arroyo's slew of executive appointments. Marquez stated that Mrs. Arroyo cannot use the Supreme Court's decision in De Castro v. Judicial and Bar Council to justify her midnight appointments. He explained that De Castro only recognized the President's power to fill an impending vacancy in the Supreme Court, but that there is still a constitutional ban against appointments to the executive branch. This is unusual because Marquez's statements appears to be an interpretation of the Constitution, not by the Supreme Court, but by himself. This is not the function of a spokesperson.

I doubt very much that Marquez would have made the statement without the consent of the Supreme Court. Spokespersons clear their statements with their superiors; especially on controversial matters. So why did Marquez issue the statement? I think that this statement is meant to provoke law suits to challenge Arroyo’s appointments. Evidently, the Supreme Court wants to rule on the issue of whether these recent appointments are valid because it needs an opportunity to show the public that it still is an independent institution and not under the control of the President. I surmise that Marquez has the Court's blessings because it would be embarrassing to Marquez and the Supreme Court itself if the Court would later sanction the appointments.

Arroyo for her part seems bent on provoking suits. She made not one, but many appointments in apparent defiance of the constitutional ban, even in cases where there were no vacancies. Even she knows that she cannot win this battle. When President Arroyo is serious about circumventing the Constitution, she asks her lieutenants to float the idea in the press the way she did with the issue regarding the Chief Justice's appointment. She generates sufficient debate before she presses the issue. These new appointments only seem reckless because they are not meant to survive judicial scrutiny but to stave off criticisms of executive dominance.

More Midnight Appointments: The Ploy

2010-03-28T16:15:00.000-07:00

Supreme Court Midas Marquez issued a statement saying that the President cannot use the recent Court decision (De Castro v. JBC) to justify her recent appointments. He explained that De Castro is not yet final and only exempts appointments to the Supreme Court from the ban on midnight appointments (which started on March 10 and ends on June 30). Marquez issued the statement following reports that the President appointed two Justices of the Court of Appeals, an ambassador, and board members to cultural bodies where no vacancy existed.

That these new appointments are so blatantly unconstitutional can mean that the President has absolutely no respect for the Constitution and constitutional restraints. Or it can be another display of presidential craftiness. It is entirely possible that these appointments are part of a script designed to stave off criticisms about her control over the judiciary. These appointments will no doubt be challenged before the courts. They will be struck down as unconstitutional acts, and the President will go on national television to say that she will respect the decision and show that the judiciary is genuinely independent of the Executive Branch. This latest stunt is designed to be a short term loss that will lead to long term gains--whether or not the President leaves office at the end of June.

Commissioner Jose Melo v. Justice Jose Melo

2010-03-26T15:36:00.000-07:00

Commission on Elections Chair Jose Melo recently gave comments that contradict a Supreme Court ruling in 2001 (Ang Bagong Bayani-OFW Labor Party v. Ang Bagong Bayani-OFW Go! Go! Philippines, G.R. No. 147589, June 26, 2001). He opined that the President's son Juan Miguel Arroyo could be a valid nominee of Ang Galing Pinoy, a party-list group that allegedly represents security guards. He added that limiting nominees to members of the marginalized groups is not wise. Tricycles drivers cannot be represented by one who did not finish high school; "they should have somebody to speak for them," he said. This is not the tenor of the Supreme Court decision in Ang Bagong Bayani.

In the 2001 Supreme Court decision, a majority of the Supreme Court, including then Justice Melo, provided guidelines for the COMELEC in screening party-list nominees. Among others, the Court said that:

...not only the the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2, RA 7941, the nominees must be Filipino citizens "who belong to marginalized and underrepresented sectors, organizations and parties." Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State
policy to give genuine representation to the marginalized and the underrepresented.

His steroetypical views on tricycle drivers aside, Commissioner Melo's view clearly condtradicts the Supreme Court's pronouncement. It is also fraught with danger that can undermine the entire party-list system. What then will prevent every other politicians from creating their own party-list organizations and to return to Congress, say to circumvent the term limits for House Representatives? Could the Ayalas and the Villar's represent landless peasants? May the captains of industry represent the interests of labor?

The idea behind the party-list system is to allow marginalized and underrepresented sectors to articulate their own concerns in the course of national legislation. Commissioner Melo's views will negate this goal by allowing politicans to speak for these groups.

The Incomplete History of the Supreme Court

2008-11-25T05:11:00.000-08:00

There is something missing in the Supreme Court’s history: it does not mention anything about its role in the establishment of the Marcos dictatorship. This history is summarized in a brochure that can be downloaded from the Court’s website. It begins with a blurb on pre-colonial judicial systems but ends abruptly with the “Filipinization of Supreme Court” from 1916 to 1935. It says nothing about Javellana v. Executive Secretary[1] and Ferdinand Marcos’ successful attempt to adopt a parliamentary form of government.

In Javellana, a majority of the members of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because there were not enough votes to say otherwise, the Court also concluded that the new charter was already in effect—that it had come into effect through popular acquiescence. Marcos dodged term limits by staying on as Prime Minister for another 13 years. The Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy.

Such a pivotal moment in the Court’s history is recorded in a variety of sources. As I have written elsewhere:

Since it was established under the American colonialism the Supreme Court was “a respected, independent and powerful legal force in Philippine politics and government.”[2] The Court enjoyed a reputation for competence and rectitude[3] and was “the most important legitimizing institution in the Philippines”[4]

Long before the end of Marcos’ rule, the public respect formerly accorded the Supreme Court and its reputation for independence had dissipated.[5] By the time Marcos was deposed in 1986, the Court was regarded by many Filipinos as subservient to the President[6]and had become a pliable instrument of the president’s will.[7] Even the Supreme Court acknowledged “many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect” that will require time and effort to repair.[8]

Javellana was a monumental mistake by the Philippine Supreme Court. It sanctioned a revision of the constitution that completely disregarded the law. It served the interests of politicians who ushered the country into Marcos’ martial law regime. Since then the Supreme Court has never recovered the respect it once enjoyed. Javellana is a self-inflicted wound which had consequences the Supreme Court has never fully recovered from which serves as a reminder of what the Court has done before and what it is capable of doing. I do not see what harm admission of this mistake can do to the Supreme Court.

Javellana could explain the current apprehension about the seven impending Supreme Court vacancies in 2009. Renewed efforts to amend the Constitution coupled with this opportunity to pack the Court with the President’s allies raise fears that the Supreme Court could reprise its role and sanction another attempt to keep the President in power.

Already there are speculations that pro-amendment forces want the Court to decide that the House of Representatives alone may sit as a constituent assembly for purposes of amending the Constitution. If the Supreme Court agrees with this argument, the President’s allies can bypass the Senate and make the changes in the Constitution that they desire. The Senate so far has refused to play along with any attempt to alter the Constitution.

The Court has a responsibility to learn from its own mistakes in the past. It’s refusal to acknowledge the dark chapters of its history serve only to embolden those who want to undermine constitutionalism and the rule of law by forcing changes in the Constitution that have no popular support.

[1] See Javellana v. Executive Secretary, 151-A Phil. 35 (1973); 50 SCRA 30 (1973).

[2] C. Neal Tate, The Judicialization of Politics in the Philippines and Southeast Asia, 15:2 International Political Science Review 187, 188 (1994).

[3] Id. at 189.

[4] C. Neal Tate & Stacia L. Haynie, Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961-1987, 27 Law & Soc’y Rev. 707, 708 (1993).

[5] Id.

[6] C. Neal Tate & Stacia L. Haynie, The Philippine Supreme Court under Authoritarian and Democratic Rule: The Perception of the Justices, 22: 3, Asian Profile, 209-224 (June 1994).

[7] Carl H. Landé & Richard Hooley, Aquino Takes Charge, 64 Foreign Aff. 1087, 1087 (1986). The Supreme Court’s credibility needed immediate repair. Upon assuming power from the Marocs government in 1986, Corazon Aquino “almost immediately reestablished a Supreme Court, staffed with several new Justices, and this court quickly ascended to a position of respect that nearly matched that of its pre-martial law predecessor.” Tate, supra note 20 at 190.

[8] Animas v. Minister of National Defense, G.R. No. L-51747, December 29, 1986.

Philippine Supreme Court Appointments 2009

2008-11-17T06:27:00.000-08:00

I am a little puzzled over the concern over the coming vacancies in the Supreme Court. In 2009, the Supreme Court will have seven vacancies and constitutionalist Fr. Joaquin Bernas and civil society groups are calling for increased citizens’ participation in and closer scrutiny of the choice of nominees to the Court.

I have reservations about these efforts and what they seek to achieve.

President Macapagal-Arroyo has already appointed 14 different Justices after she became President in 2001, 12 of whom are still sitting on the Court (two have already retired). Of those who are retiring next year, two of them—Consuelo Ynares-Santiago, Leonardo Quisumbing—were appointed by other Presidents. This means that in 2009, Arroyo would have increased the number of her appointees from 12 to 14. Chief Justice Renyato Puno, who was appointed by President Ramos will be the only one Justice not appointed by President Arroyo.
President Arroyo already appointed 80% of the membership of the Court. After she fills all seven vacancies next year she will increase the number of appointees to 14 or 93% of the membership of the Court. Will this increase really matter considering the fact that the Supreme Court decides by majority vote?

There is nothing extraordinary about next year. The turn over rate at the Supreme Court is so high that there is at least one vacancy every year. All Philippine Presidents get a chance to appoint Justices. Corazon Aquino appointed the entire membership of the Court before the Judicial and Bar Council began operations and appointed seven more Justices thereafter. Fidel Ramos appointed 14 Justices when he was President. Arroyo had a similar opportunity to fill six vacancies in 2002. Even Joseph Estrada who was booted out of office after only 31 months in office was able to appoint 6 Justices.

The sheer number of appointees alone does not make the Justices’ objectivity suspect. If this was the case, then Arroyo should have won every time her administrations actions have been challenged before the Supreme Court. But this is not the case.

These efforts to check the President’s power to appoint Justices of the Supreme Court assumes that the selection process under the 1987 Constitution is basically flawed. Is it? How do we rally civil society to this latest cause without some categorical empirical conclusion that the JBC’s operations are flawed?

I think it sheer luck that Arroyo has this opportunity to control the composition of the Court. But that is all that it is: luck. Because we are unable to remove Gloria Macapagal-Arroyo from office—and this is a whole other story—we should learn to live with the consequences of her continued stay in office.

Lynching Obama

2008-10-12T06:53:00.000-07:00

The US elections have sunk to an all-time low as Republican rallies turn into lynch mobs calling for the death of Senator Barrack Obama. Both John McCain and Sarah Palin should take credit for inciting the crowds as they continue to ignore the issues and launch personal attacks on Senator Obama.

Khaled Hosseini, author of "The Kite Runner" reacts to this phenomenon in the Washington Post. Frank Rich also has a take on the topic in The New York Times.

Lopsided

2008-10-05T07:43:00.000-07:00

Joe Biden so elegantly wiped the floor with Sarah Palin during the vice presidential debate that only rapid Republicans could not have seen or would not admit it. That there is even some discussion that the debate was a tie can be explained because the audience did not expect a lot from Governor Palin. Queen Latifa got it on the nose during SNL's satirical take on the debate:

"Due to the historically low expectations for Gov. Palin, were she simply to do an adequate job tonight, at no point cry, faint, run out of the building or vomit, you should consider the debate a tie."

The reality was, as News 7's political editor pointed out:

"But this wasn't a tie.

Sarah Palin was cheerful and friendly...folksy and puckish...but she did not speak with authority or confidence. In contrast, Joe Biden was all business. His experience--in Washington and in debates--was obvious. At times, this debate sounded as if it were between a seasoned professional and an earnest amateur who needs seasoning.

So my winner tonight was Joe Biden. His answers were disciplined and so was he: he was direct...smart, but not cute...and he did not play any gender politics."

McCain: Misleadership

2008-09-21T08:11:00.000-07:00

More on John McCain's campaign:

Truthiness Stages a Comeback

By FRANK RICH
Published: September 20, 2008

http://www.nytimes.com/2008/09/21/opinion/21rich.html?ref=opinion

The Push to ‘Otherize’ Obama

By NICHOLAS D. KRISTOF
Published: September 20, 2008

http://www.nytimes.com/2008/09/21/opinion/21kristof.html?ref=opinion

Missing McCain

2008-09-16T08:52:00.000-07:00

I saw one of the ugliest moments of the US elections last Sunday when Rudolph Giuliani recited one lie after another with a straight face when he appeared on Meet the Press. It appears that lying to win public office permeates the entire Republican campaign. John McCain is the biggest disappointment of all. Liberal friends who wonder who they would vote for if they were Republican always conclude they would end up voting for McCain because he had one thing most Republicans do not seem to have: integrity. It appears McCain has also discard that feature.

Richard Cohen's column in the Washington Post today captured my views on this matter:

The Ugly New McCain

By Richard Cohen

Wednesday, September 17, 2008

Following his loss to George W. Bush in the 2000 South Carolina primary, John McCain did something extraordinary: He confessed to lying about how he felt about the Confederate battle flag, which he actually abhorred. "I broke my promise to always tell the truth," McCain said. Now he has broken that promise so completely that the John McCain of old is unrecognizable. He has become the sort of politician he once despised.

The precise moment of McCain's abasement came, would you believe, not at some news conference or on one of the Sunday shows but on "The View," the daytime TV show created by Barbara Walters. Last week, one of the co-hosts, Joy Behar, took McCain to task for some of the ads his campaign has been running. One deliberately mischaracterized what Barack Obama had said about putting lipstick on a pig -- an Americanism that McCain himself has used. The other asserted that Obama supported teaching sex education to kindergarteners.

"We know that those two ads are untrue," Behar said. "They are lies."

Freeze.

Close in on McCain. This was the moment. He has largely been avoiding the press. The Straight Talk Express is now just a brand, an ad slogan like "Home Cooking" or "We Will Not Be Undersold." Until then, it was possible for McCain to say that he had not really known about the ads, that the formulation "I approve this message" was just boilerplate. But he didn't.

"Actually, they are not lies," he said.

Actually, they are.

McCain has turned ugly. His dishonesty would be unacceptable in any politician, but McCain has always set his own bar higher than most. He has contempt for most of his colleagues for that very reason: They lie. He tells the truth. He internalizes the code of the McCains -- his grandfather, his father: both admirals of the shining sea. He serves his country differently, that's all -- but just as honorably. No more, though.

I am one of the journalists accused over the years of being in the tank for McCain. Guilty. Those doing the accusing usually attributed my feelings to McCain being accessible. This is the journalist-as-puppy school of thought: Give us a treat, and we will leap into a politician's lap.

Not so. What impressed me most about McCain was the effect he had on his audiences, particularly young people. When he talked about service to a cause greater than oneself, he struck a chord. He expressed his message in words, but he packaged it in the McCain story -- that man, beaten to a pulp, who chose honor over freedom. This had nothing to do with access. It had to do with integrity.

McCain has soiled all that. His opportunistic and irresponsible choice of Sarah Palin as his political heir -- the person in whose hands he would leave the country -- is a form of personal treason, a betrayal of all he once stood for. Palin, no matter what her other attributes, is shockingly unprepared to become president. McCain knows that. He means to win, which is all right; he means to win at all costs, which is not.

At a forum last week at Columbia University, McCain said, "But right now we have to restore trust and confidence in government." This was always the promise of John McCain, the single best reason to vote for him. America has been cheated on too many times -- the lies of Vietnam and Watergate and Iraq. So many lies. Who believes that in Afghanistan last month, only five civilians were killed by the American military in an airstrike, instead of the approximately 90 claimed by the Afghan government? Not me. I first gave up on the military during Vietnam and then again when it covered up the death of Pat Tillman, the Army Ranger and former NFL player who was killed in 2004 by friendly fire.

McCain was going to fix all that. He was going to look the American people in the eyes and say, not me. I will not lie to you. I am John McCain, son and grandson of admirals. I tell the truth.

But Joy Behar knew better. And so McCain lied about his lying and maybe thinks that if he wins the election, he can -- as he did in South Carolina -- renounce who he was and what he did and resume his old persona. It won't work. Karl Marx got one thing right -- what he said about history repeating itself. Once is tragedy, a second time is farce. John McCain is both.

McLies

2008-09-13T08:17:00.000-07:00

There is one other component to the Republican campaign for the presidency that I left out in the last blog: Lies.

The New York Times summarized the criticisms well and Paul Krugman's latest piece is also enlightening.

FactCheck.org had a specific analysis of McCain's claims about Obama's tax policy proposals and found that "McCain misrepresents Obama's tax proposals again. And again, and again."

The list is already endless and the campaign has just begun.

Republican Genius

2008-09-10T17:58:00.001-07:00

The Republican Party had a stroke of genius during their National Convention (RNC). Before they presented Sarah Palin to the public, the Party's stalwarts took aim at the media—calling them left-leaning and blaming them for the Republican’s tarnished image. The trick worked so well that even after Governor Palin spoke, the media was uncharacteristically quiet. Instead of criticizing her speech, record, or experience, the media painted Palin as the darling of the convention who electrified the crowds. Somehow, the media glossed over the fact that Sarah Palin said nothing—like the rest of the speakers at the Convention—about the Party's policies, programs or plans for the future. These were not on the Republican menu because the RNC had two well-defined goals that week: attack the media and glorify John MaCain.

Unlike the other speakers, however, Palin attacked Barack Obama. Her first major speech reeked of bile. She was mean, vicious, and inaccurate with her allegations. Her speech was not worthy of a national convention and clearly unbecoming of a candidate for national office. Her performance dragged US politics and elections to an all time low and it seemed more suited for a stand-up comedy routine. Unlike McCain, Palin had not promised to conduct a dignified campaign and she never promised to behave during the campaign.

Sarah Palin’s inclusion in the Republican ticket fits seamlessly into the party’s plan to retain control of the White House. She and her Party are unjustly maligned, unfairly judged. The RNC was not a rally in support of change of any kind, official rhetoric notwithstanding: it was a call to defend the control of the Presidency—it was like watching Orcs itching for war. They will neither campaign on the issues nor play on voters' fears. The strategy is clear: Avoid issues. Pick fights. Spew hate. Spit venom. Vote Republican.

Clinton’s Nuclear Options

2008-06-04T08:44:00.000-07:00

There was speculation that Hillary Clinton’s combative speech last night was intended to secure a place for her either on the presidential ticket in November or in Obama's cabinet.

On the other hand, others opined that Clinton simply needed time to end things at her own pace and that in a couple of days she will do right thing and concede the nomination to Senator Obama.

Hillary Clinton supporters proffered a third explanation for her refusal to concede to Barack Obama last night: last night had to be Clinton’s night. I thought that was incredible and Jeffrey Toobin’s reaction as a panelist on CNN was priceless:

CNN’s pundits, on the other hand, were pretty much agog. Gloria Borger related an email from a Hillary supporter explaining why she had not conceded her loss or endorsed Obama: “This needed to be her night,” she quoted. To her left, Jeffrey Toobin’s jaw pretty much hit the desk—”What?!” he interjected, suggesting that the night arguably belonged to the candidate who, you know, won, then going on to rant about “the deranged narcissism of the Clintons.”

This narcissism can have very dangerous implications. The more insidious explanation for Clinton’s refusal to throw in the towel is that she is seriously taking the nomination to the convention. In the weeks leading up to the convention she will make her case to the delegates yet again (as she did last night): that she has a better chance at beating Senator John McCain and that they should cast their votes in her favor. The primaries be damned. The rules be damned. The party be damned. This is Hillary’s moment in history and the rest of the world just has to see things her way. After she praised herself in her speech last night, she has asked her supporters to email her and to tell her what she should do. She will take 18 million email messages to the delegates and tell them that that the last few months has been a mistake and that she really should be the party’s nominee.

If she is unable to change the minds of the delegates, she has one last option to see her dream come true: she can run as an independent in November. Considering what we have seen so far, this option is quickly becoming a frightening possibility. She will not win of course and neither will Barack Obama. She will have handed the presidency to John McCain. But that seems to be the least of her concerns.

Defiant and Dangerous

2008-06-03T20:39:00.001-07:00

Nobody expected Hillary Clinton to concede tonight (the end of the primary season) even as Barack Obama earned more than enough delegates to become the Democratic Party’s nominee for the 2008 Presidential election. Still, her speech after winning the South Dakota primary was startling and even unnerving.

Hillary Clinton opted not to do the honorable thing: to concede and to move on to help prepare the Democratic Party for the general elections in November. What Clinton did tonight was answer the question which has been lingering since her odds of winning her Party’s nomination virtually disappeared many weeks ago: What does Hillary Clinton want?

What she wants, evidently, is to remain relevant to the party. She stayed in the race not to win the nomination—but to broaden her base—to have a large enough number of voters to wield as a weapon. She has crafted a weapon from the votes of 18 million Americans and is using it to threaten her party. Hillary Clinton reminded her party that she can influence, if not determine the results of the November elections. She is using her supporters’ votes for political leverage, perhaps for a slot in the party’s ticket in November.

Hillary Clinton’s campaign for the presidency ended tonight—not with dignity or with the slightest hint of reconciliation. It was bitter, sad, and ultimately counterproductive. She failed to seize the opportunity to unify democrats but instead chose to blackmail her party, agitate her supporters, and nurture the divisions that separate her supporters and Obama’s supporters.

Clinton: End Game

2008-05-20T15:40:00.000-07:00

Senator Hillary Clinton's bid for the White House has ended and even she knows it. The math has not been in her favor for some time now.

She tried to run on her strengths as a US Senator and her "34 years of experience" in government service to no avail. Her record could not stand up to Senator Obama's charm. She was unlikable; he was eloquent, even enchanting. His record is not so bad either. She was part of the old Washington crowd that was part of the problem. Obama was a fresh face who promised change "we can believe in."

So Clinton tried different angles. She tried drama by shedding tears and launching sharp angry attacks against Obama. She tried comedy--by doing the comedy circuit on television. She tried adventure by claiming to have survived sniper fire during a visit to Bosnia. All these tricks worked a little; it kept the campaign alive, if barely.

They tried to change the rules--bring in Florida and Michigan despite the fact that they were penalized and could not be counted.

In desperation she tried the race card--claiming that white working class Americans were solidly behind her and that a black candidate cannot win in the general elections in November. Today her campaign used the gender card by claiming that her less than stellar performance was due to rampant sexism in the United States. It was the fear of women in power that drove voters to the Obama camp.

Her campaign will spin this loss in endless ways. The fact is that she was unlucky enough to run against a once in a lifetime phenomenon. Her tenacity in staying in the race against all the odds, against all logic becomes less admirable now. It verges on desperate and pathetic. It has been suggested elsewhere that her last stand is meant to prepare her for the next presidential campaign--she is packaging herself as the candidate who never gave up. If that is true, then that is truly sad--even in her campaign's death throes she has decided to put her interests above everyone else's.

I would have wanted to see Hillary Clinton exit with more dignity. But with the way she conducted this campaign that would be asking too much.

Is Hillary Harming Feminism?

2008-02-06T19:59:00.000-08:00

Hillary Rodham Clinton’s victory in the New Hampshire primary was a costly one. Not for her campaign—it was reinvigorated—but to the cause she had always been associated with: feminism. Since then, Clinton’s campaign for the White House has used the same formula: make Hillary feminine.

Reeling from her loss to Senator Barack Obama in the Iowa caucuses and behind on every poll, Hillary Clinton came into New Hampshire knowing she needed to turn the tide in her favor. She was unlikable, said many, so her campaign machinery turned from an icon of the feminist movement into a blubbering contestant. It worked, sadly, suggesting that Americans are uncomfortable with the idea of a strong woman. She was not any more aggressive than any of the candidates, but she was a woman usurping a role reserved for men and that did not sit well with voters. She has to assume the role we reserved for her. She had to become “the weaker sex”.

Still uncomfortable with Obama’s popularity, the Clinton campaign dismembered feminism a second time by binding Hillary to her husband. Former President William Clinton was unleashed upon Obama protecting her weakling wife in what was until then, a fair fight. This strategy admits that Hillary cannot win the Democratic nomination on her own and she has to hang on to her husband’s coattails. She has been domesticated in the hopes that voters will finally accept her and elect her President.

Hillary Clinton could have pursued her path to the White House without gutting the feminist movement. She was given an opportunity to capitalize on her strengths but she responded inadequately. During the New Hampshire debate, she was asked why voters seemed to find her unlikable. “Well, that hurts my feelings,” she joked. Hillary Clinton has nothing to apologize for. Her strength comes from a time when women had to be loud to be heard and forceful to be taken seriously. Her strength is an asset, not a liability.

The Clinton camp might have feared that Hillary would not have survived New Hampshire. Better to shed a tear, and alter your personality, than to miss a historic opportunity to win the White House. Hillary has to win now because she can always be a feminist later. She’s the first and only woman to seek the Presidency –we can dial down her strengths and surely no harm can come from powdering her nose a bit. It is a strategic decision that will not possibly hurt feminism.

No. Winning at all costs diminishes Senator Clinton and everything she stands for. Like most other candidates she comes across as one who will say or do anything to win.
Should the voters choose another candidate for the 2008 presidential elections and end Hillary’s run for the White House then so be it. She is too important to lose as an icon. If she is elected President, she can never be the champion we thought that she was. What else will she sacrifice to win the Presidency? What else will she compromise to stay in office?

Hillary Clinton is not the candidate for change. She is tethered to her husband and his past. They are a husband are now a package but she is the weaker half who cannot win elective office without her popular husband by her side.

The Clinton campaign opted for the easy way out. It recast Senator Clinton as vulnerable and dependent unable to fight her battle by herself. But I imagine that this has to be so much harder on Mrs. Clinton. She strips herself of her strengths and appears more vulnerable for the sake of the nomination. This has to be insulting and excruciating for a person of her intelligence. It is difficult just to watch her doing it.

Of course, the Clinton camp’s strategy may work. Americans may vote the new softer Hillary for President in November. But students of politics may have expected an epic clash where Senator Clinton takes a field of aspirants and eventually triumphs on the strength of her public record and her character. She should win because she is strong. Some part of us wants her to take on that challenge and to be the first woman President of the United States. But Hillary Clinton will not become the first woman President of the United States. She will be the first President fortunate enough to be married to William Jefferson Clinton.

Only the JBC is immune to public scrutiny

2008-01-05T00:15:00.000-08:00

Chief Justice Reynato Puno’s lukewarm response to pressure to make the Judicial and Bar Council’s records open to the public is even more disappointing in light of the fact that the Chief Justice has made significant steps to address other issues gripping the country. For his work, and there is a lot of it since he became Chief Justice at the end of 2006, was recognized by the Manila Times when the broadsheet chose him to be “Times Person of the year.” (Rene Q. Bas, Chief Justice Puno: Times Person of the Year, Manila Times, December 30, 2007.”)

The Times recognized the Chief Justice’ accomplishments which include the introduction of the writ of amparo and the writ of habeas data to stop the spate of extrajudicial killings and forced disappearances in the country. They are intended to address the weakness of the petition for habeas corpus. The Chief Justice noted that petitions for habeas corpus usually end up with state agents simply denying they had the missing person in their custody.

The writ of amparo bars military officers from simply denying that they are involved in disappearances or extrajudicial executions. Habeas Data compels military and government agents to release information about the “desaparecidos” and requires access to military and police files. These are bold moves that challenge those who wield guns and use force to terrorize and intimidate others. It is an attempt to enforce the Rule of Law that is teetering at the brink of lawlessness.

It is ironic that while these writs are designed to open up the records of other branches of the government, the JBC remains tucked away with its own secrets. The Judicial and Bar Council just celebrated its 20th Anniversary on 10 December 2007. It might be a good time to start thinking about making the JBC more transparent to the public.

The Chief Justice on the JBC

2008-01-04T22:05:00.000-08:00

In my last post I discussed the secret records of the Judicial and Bar Council. Chief Justice Reynato Puno had a very terse and disappointing response to the issue: According to Newsbreak, he said, “I don’t mind telling the public how I vote. But it has to be a consensus [of the JBC].”

This is a very peculiar response, especially from the Chief Justice. The clamor for making the records to the public implicates more than the preferences of the members of the JBC; it implicates transparency and accountability of government officials. Instead of addressing the merits of the concerns, the Chief Justice—the Chair of the JBC—shrugs his shoulders and says the JBC refuses to make its records public so there is nothing he can do about it.

It would be a very dark day in public service if all our officials are as dismissive about transparency and accountability.

The Judicial and Bar Council: Secrets

2007-12-27T18:18:00.000-08:00

Justice Secretary Raul Gonzalez may have inadvertently revealed some secrets of the Judicial and Bar Council (JBC), the constitutionally created body that short lists nominees for appointment to the judiciary. The Secretary of Justice sits as an Ex Officio Member of the JBC.

In a special issue of Newsbreak (Marites Dañguilan Vitug, Stacking the Court), Justice Secretary Raul Gonzalez explained his vote on filling a vacancy in the Supreme Court. He said:

“I voted for Reyes because he is senior and has the shortest time left in the judiciary,” Gonzalez said in a telephone interview in August. “I prefer short-term appointments. I don’t like people who plead for their appointment but when they get appointed, they turn against you. You never know what positions they take after they are appointed…. I’ve felt bitter about Supreme Court decisions lately.”

This brief quote provides a revealing look into the manner in which the JBC has been operating—at least from the Secretary's point of view.

Those of us who are not privy to the internal operations of the JBC assume the best. We assume that the JBC is performing the task for which it was created. We assume it is screening the most competent candidates to fill vacancies in the judiciary and submitting the names of the best candidates to the President for appointment. When stories about irregularities inn the JBC surface they are never substantiated and, therefore, disregarded as rumor. I think observers want to believe that the Supreme Court is now a stronger institution and no longer the rubber stamp that once helped sustain the dictatorship of Ferdinand Marcos.

Gonzalez' statement, however, disabuses the reader of such notions.

First, evidently, lobbying for appointments take place in the JBC. Nominees to the Supreme Court "plead" for their appointment. His statement could be read to mean that the selection process, and the members of the JBC are not insulated from personal lobbying from the nominees.

Second, considerations other than those expressly mentioned in the Constitution are factored in when votes are cast. The Constitution provides that "A Member of the Judiciary must be a person of proven competence, integrity, probity, and independence." Gonzalez's statement contradicts the Constitution's command. He seems more concerned with loyalty to the appointing power than with the independence of the appointee.

Third, the rapid turnover of the members of the Supreme Court may be the product of design. At least from Secretary Gonzalez's perspective, shorter tenures serve the administration's purposes. US President George W. Bush made only two appointments to the Supreme Court since he took office, to replace an Associate Justice who retired, and the Chief Justice who passed away. Gloria Macapagal-Arroyo this month made her 11th appointment. By the time her term ends in 2010, she would have appointed 14 of the 15 Justices of the High Court.

There is another piece in the Newsbreak issue that does not help things any. Aries Rufo wrote that:

The council is a bastion of secrecy. While it screens applicants and nominees to the judiciary and the Ombudsman, the JBC remains a fortress as far as information is concerned. The only instance that it provided data to journalists was when NEWSBREAK requested documents regarding the background of Supreme Court justice nominee Gregory Ong. Even then, the council gave us only Ong’s resumé and school records.

It is difficult to imagine what considerations impel the JBC to shroud itself in secrecy. It merely engenders distrust in the body which makes all its nominees suspect. The only reason why secrecy is warranted might be when the JBC is considering unqualified persons for appointment. Otherwise, the JBC could simply post all the data they have on its website the way all other government agencies do.

Guantánamo as Grotesquery

2007-12-11T06:16:00.000-08:00

The Bush Administration has acted ignobly towards the prisoners of the war on terror; it created a regime where suspected terrorists are detained without any expectation of a fair trial. They are geographically separated from the US to prevent them from invoking constitutional protections of due process. They are called “enemy combatants” to prevent them from invoking the Geneva conventions for any form of protection. The Bush Administration has created a world where the prisoners are prevented from any law in protesting their innocence. It will prosecute and judge the detainees before military commissions without the participation of regular courts. This policy set off severe criticisms from every corner of the world which the United States has smugly ignored.

More appalling was Congress’ willingness to abet the acts of the White House. When the Supreme Court ruled that US courts had jurisdiction to decide whether detainees were legally detained in Guantanamo, Congress passed the Detainee Treatment Act of 2005 to strip the courts of such jurisdiction. When the Supreme Court ruled that the military commissions created by President Bush were illegal, Congress passed the Military Commissions Act of 2006 to keep the detainees away from the civilian courts. The law also deprives courts of jurisdiction to hear an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

There are some who claim that the media has misrepresented the treatment of prisoners in Guantánamo—that it is not an American Gulag. Unfortunately, the weight of evidence including shows otherwise. More importantly, the issue is not whether we should provide our enemies with more kindness than they show towards victims of terrorist attacks or towards their own hostages or prisoners. The issue is whether the world’s most powerful democracy needs to abide by the rule of law.

Guantánamo is a monument to lawlessness. It announces to the world that in times of conflict the US flushes its principles away and that the US can choose not to follow international law when it so pleases.

The US needs to reassume its position of leadership in the international community. Lawyers have performed an admirable task in criticizing and influencing incremental changes in the manner the US treats its detainees. With the help of the media, they succeeded in reversing an infamous memorandum that sanctioned torture. The medical profession has also censured their colleagues who participate in torture. The detainees too have demonstrated more faith in our legal system, by invoking the law despite all attempts to keep them away from the legal system. Only the government remains adamantly against the rule of law.

There is pending legislation that would make habeas corpus available to Guantánamo detainees, to close the base, and to repeal the Military Commissions Act of 2006. None seem to be getting any headway. The Democratic control of Congress has done little to change its direction on this issue.

Only the Supreme Court has consistently acted as a check on the Bush Administration. The Court ruled against Bush’s military commissions and recognized the power of courts to entertain petitions for habeas corpus filed by or on behalf of the detainees. In June this year, it agreed to hear Boumediene v. Bush, to consider a Court of Appeals decision that upheld the provisions of the Military Commissions Act of 2006.

The executive remains the biggest obstacle to changing course on Guantánamo. No aspirant to the presidency has audibly committed his or her administration to restoring respect for the rule of law. The only concrete statement we have from the candidates is Mitt Romney’s incredible call to “double Guantánamo.” Candidates should worry less about appearing soft on terrorism and more about appearing strong on justice and the rule of law. The US has nothing to lose by building peace based on the rule of law. The first step in this journey is to end the abomination that is Guantánamo.

Newsbreak's anti-Arroyo slant

2007-11-20T05:18:00.000-08:00

For the second time now, Newsbreak has written an article blaming the President for the creation of new local government units. Last August, Newsbreak wrote that Arroyo's administration "is guilty of making it more difficult for [cities] to make ends meet." According to Newsbreak, "Malacañang is perceived to be encouraging the practice" of creating more local governments and that "[t]he President has not discouraged her allies in the legislature from creating new local entities." Newsbreak added that "local government leagues have lobbied for an end to it—to no avail."

In an earlier post I ridiculed this assessment by pointing out that the creation of new cities became a trend long before Arroyo assumed power. The rush to "cityhood" was triggered by a badly written provision in the local government code that provides cities with a larger share of the Internal Revenue Allotment (IRA). This share allowed Local Government Units to meet the financial requirements to become a city and then get an even bigger share of the IRA.

Now, Newsbreak is blaming the President again in a piece entitled "As year ends, GMA creates more LGUSs" . In what can only be described as bad journalism, Jesus Llanto writes that "the government created new local government units (LGUs), reinforcing its record as the administration that has formed the most number of LGUs."

Yet there is nothing in the article that shows how the President is responsible for making these LGUs. The only act the President performed, according to this article, is the conversion of two component cities into highly urbanized cities (HUCs). This is the conversion, not creation of local government units. The President has the duty to declare a city as highly urbanized after the city meets certain requirements (Sections 452 and 453 of the Local Government Code). This is a duty on the part of the President and she exercises no discretion on this matter. Yet somehow, Newsbreak has managed to conclude that President Arroyo is behind the conversions.

As my earlier posts will show, I am clearly not a fan of the President. However, I cannot see why we have to blame everything on her even when the issue is clearly is beyond her control. We give Arroyo too much credit by suggesting that Congress follows her every whim especially when it concerns the creation of local government units. On issues such as this Newsbreak should examine Congress instead.

A "moral revolution"?

2007-10-21T18:05:00.000-07:00

Speaker Jose de Venecia's call for a "moral revolution" is incredible. His name is one I never imagined could be written next to the word "moral."

JdV conspired with Arroyo's allies to keep her in power despite every indication that she rigged the 2004 presidential elections. He stood on the floor of the House of Representatives and urged his colleagues to stave off any attempt to impeach the President because she is still the best person to lead the country.

De Venecia attempted to deceive the Supreme Court by claiming that there was a clamor for constitutional change despite all evidence to the contrary. He would rewrite an entire Constitution to fit his personal agenda.

He is the poster child for the "trapo" -- the traditional politicians who have mismanaged the country since western-style government was introduced in the Philippines. These are officials who use public office for personal gain.

This change in the Speaker's personality is another manifestation of "trapo" politics; the increasingly unpopular President, bogged down by scandal after scandal, may be getting too hot to handle. JdV may be thinking it is time to abandon her to save his own skin.

A real revolution in Philippine politics, if the Speaker truly wants one, requires the removal of the political and social apparatus that has been keeping the "trapo" in power. In short, let it start with Jose de Venecia and his ilk.

Gonzales and Gonzalez

2007-09-03T13:11:00.000-07:00

The Inquirer's editorial Serving the President on September 3 summarized the worst aspects of Justice Secretary Raul Gonzalez' stint in the Arroyo cabinet. It enumerated Gonzalez' offensive and outrageous statements that were designed to protect the President, whether she was right or wrong. The Inquirer was generous in its assessment: it left other acts of the Secretary which include Marcos-style surveillance of the media and his defense of the President's campaign to abolish the system of checks and balances in government. Illness has kept Raul Gonzalez out of the loop but his determination not to relinquish his post (at 76) should send chills up the country's collective spine.

His record of politicizing his position parallels US Attorney General Alberto Gonzales' own troubled record. Gonzales is Gonzalez's counterpart in the US. He is the head of the US Department of Justice. TIME magazine explains his disgraceful exit as a result of his penchant for putting loyalty above judgement. TIME explains that "Gonzales' excessive loyalty has led to congressional investigations, repeated rebukes by the Supreme Court and showdowns with Congress over the extent of Executive power."

Both officials served as legal bodyguards to their Presidents to embarrassingly phenomenal degrees. It may have taken a long time but at least, Alberto Gonzales had the decency to resign.

Alternative to Oposa

2007-08-28T18:57:00.000-07:00

I do not mean to suggest that the Philippine Supreme Court has abandoned the environment. Sometimes the solutions to our problems need not be remedies that straddle generations or excite international attention. There is still one alternative that the Supreme Court has preserved: local governments.

Local governments in the Philippines are not all allies of the environment. Too many local officials equate economic development with large-scale resource extraction activities such as mining and logging. But when cases reach the Supreme Court, the Court has been remarkably supportive of local governments and community efforts to protect the environment.

Two decisions of the Court come to mind. The first is Tano v Socrates (G.R. No. 110249, August 21, 1997). In that case the Supreme Court upheld the power of the local governments to enact laws to protect the environment pursuant to the general welfare clause of the Local Government Code of 1991. The Court pointed out that the Code seeks “to give flesh and blood to the right of the people to a balanced and healthful ecology.” Moreover, said the Court, the general welfare provisions of the Code “shall be liberally interpreted to give more powers to the local government units in accelerating economic development and upgrading the quality of life for the people of the community.”

The second is Social Justice Society v. Atienza (G.R. No. 156052, March 7, 2007). This case involved the enactment of Ordinance No. 8027 which reclassified a part of the city from industrial to commercial and directed the owners and operators of businesses affected to cease and desist from operating their businesses within six months from the date the ordinance became effective. Among the businesses affected were Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation. Mayor Atienza did not implement the ordinance because Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU) with the oil companies where the latter agreed to scale down their operations instead. Petitioners filed an action for mandamus to ask the Supreme Court to compel Mayor Atienza to enforce the ordinance and to order the immediate removal of the terminals of the oil companies.

The Court granted the petition saying that the Local Government Code imposes upon the Mayor the duty to “enforce all laws and ordinances relative to the governance of the city.” As the chief executive of the city, "he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts. He has no other choice. It is his ministerial duty to do so."

The Supreme Court pointed out that even if the terms of the MOU were inconsistent with Ordinance No. 8027, the local legislative council resolutions ratified it and gave it effect only until April 30, 2003. The Court concluded that "at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027."

These are the cases that environmental advocates should study. They show that an engaged and responsible citizenry can elect local officials who are attuned to the needs of the environment and they can compel action on the part of those who refuse to act in support of this cause. The cases provide concrete results and do not revel in mere abstractions.

The Opposite of Oposa

2007-08-25T18:46:00.000-07:00

I think part of Oposa's enduring appeal was the idea that the Philippine Supreme Court signaled it's willingness to step into the political thicket for the sake of the environment. After nearly 15 years since it was promulgated, that potential role has now been clarified by the Supreme Court. The Court will not usurp the functions of Congress in environmental matters and will not so casually order a co-equal branch of government to perform acts that pertain to its sphere.

Henares v. LTFRB (G.R. No. 158290, October 23, 2006) in my view, is the opposite of Oposa. The Supreme Court has informed advocates of the environment to take their campaign to the political branches of government to ask Congress to enact the measures that they think are needed. The Court, evidently, will return to its more reactive posture, even in the field of environmental law.

The End of Oposa (Conclusion)

2007-08-25T04:55:00.000-07:00

The Supreme Court dismissed the petition in Henares v. Land Transportation Franchising and Regulatory Board (G.R. No. 158290, October 23, 2006) saying that mandamus is available only to compel performance of an act specifically enjoined by law as a duty. Here, according to the Court, there is no law that mandates the respondents LTFRB and the DOTC to order owners of motor vehicles to use CNG. Further, the Court added that mandamus “will not generally lie from one branch of government to a coordinate branch, for the obvious reason that neither is inferior to the other।”

The Court explained that “The need for future changes in both legislation and its implementation cannot be preempted by orders from this Court, especially when what is prayed for is procedurally infirm. Besides, comity with and courtesy to a coequal branch dictate that we give sufficient time and leeway for the coequal branches to address by themselves the environmental problems raised in this petition.”

As dire as the situation may be, the Court said that “petitioners are unable to pinpoint the law that imposes an indubitable legal duty on respondents that will justify a grant of the writ of mandamus compelling the use of CNG for public utility vehicles. It appears to us that more properly, the legislature should provide first the specific statutory remedy to the complex environmental problems bared by herein petitioners before any judicial recourse by mandamus is taken.”

So there it is. Evidently, the Supreme Court will not assume the role of a Super Court and, with the help of the Constitution alone, order steps for the repair or protection of the environment.

Henares clarifies the scope of Oposa. Oposa never suggested that litigants may bypass the entire machinery of government to obtain relief for the environment. Again, Oposa merely remanded the case to the lower court because the lower court incorrectly dismissed the case. The trial court’s dismissal was erroneous because the petitioners in that case did have a cause of action. Standing to sue was not an issue in that case and whatever the Court might have said along those lines was merely obiter dictum.

Henares removed any further question on whether the Supreme Court would take the role of policy-maker on environmental issues - one that substitutes it’s judgment for those made by the political branches of government। This is at it should be. In the long run, government by the judiciary will never truly solve our problems.

If nothing else, Philippine case law urges us to pursue other avenues to enusre the protection of the environment. Oposa, evidently, has outlived its usefulness.

The End of Oposa

2007-08-25T04:41:00.000-07:00

In two pervious works I went against conventional analyses of Oposa v. Factoran, a decision of the Philippine Supreme Court that supposedly recognized standing to sue in behalf of future generations to protect the environment. The first piece posited that Oposa is essentially misunderstood in that everything the Court said about standing to sue is merely obiter dictum, and not binding on any court. In fact, the Court merely remanded the case to the trial court saying that the petitioners in that case had a cause of action and that the trial court should not have dismissed the case in the first place. The lawyers did not pursue the case, however. The second piece showed that the rest of the Supreme Court’s decisions affecting the environment are in fact hostile to the environment revealing that the Court’s reputation for environmental activism is undeserved.

Oposa raised a question that lingered for years: Is it possible to invoke the Supreme Court’s jurisdiction directly, based solely on the constitutional right to a balanced and healthful ecology, to order government agencies to take steps to protect the environment? This question was resolved by the Supreme Court in Henares v. Land Transportation Franchising and Regulatory Board (G.R. No. 158290, October 23, 2006).

The Petitioners in that case asked the Supreme Court to issue a writ of mandamus commanding respondents Land Transportation Franchising and Regulatory Board and the Department of Transportation and Communications to require public utility vehicles (PUVs) to use compressed natural gas (CNG) as alternative fuel.

Following the steps of the Oposa, the petitioners cited statistics from various government agencies on vehicle ownership in the Philippines and the emission of air pollutants to “present a compelling case for judicial action against the bane of air pollution and related environmental hazards.” Petitioners proposed the use of CNG—a natural gas comprised mostly of methane which is considered the cleanest fossil fuel because it produces much less pollutants than coal and petroleum.

They claim that their petition asserts a right found in Section 16, Article II of the 1987 Constitution, Oposa v. Factoran, and Section 4 of the Philippine Clean Air Act of 1999.

The Supreme Court addressed two questions in that case: a) whether the petitioners had legal personality to bring this petition, and b) Should mandamus issue against respondents to compel PUVs to use CNG as alternative fuel?

The Court ruled in favor of the petitioners’ standing (although respondents did not even challenge standing) saying that this petition focuses on one fundamental legal right of petitioners, their right to clean air. The Court brushed aside this technicality under the principle of the transcendental importance to the public, especially so if these cases demand that they be settled promptly.

(To be concluded.)

Local government avalanche is Congress' fault

2007-08-23T04:41:00.000-07:00

A recent Newsbreak report, GMA Creating Too Many LGUs, by Miriam Grace Go (August 22, 2007), unfairly blames President Gloria Macapagal-Arroyo for the increase in the number of local government units in the Philippines.

This increase, particularly in the case of cities has been going on ever since the Local Government Code of 1991 took effect. It is encouraged by two features of the Code: (a) the formula for the distribution of the internal revenue allotment that favors cities, and (b) the relative ease in making cities. Politicians determined to increase the financial resources of their governments have been campaigning to upgrade into cities ever since they discovered these weaknesses in the Code.

In 1986, there were 73 provinces, 60 cities, and 1,530 municipalities in the country. Just before the Estrada administration collapsed, there were already 110 cities. On March 5, 2001, less than two months into office, President Arroyo signed 14 bills on the conversion of municipalities into cities. These bills had been pending in Congress even before she took office. In fact, the highest increase in the number of cities happened during the terms of her predecessors. From 1993 to the first quarter of 2001, 50 cities were created which reflects an increase of 83%.

Congress enacted Republic Act No. 9009 in 2001 to make the creation of cities more difficult by increasing the financial resources needed to qualify as such. However, subsequent laws have exempted new cities from the income requirement of this law.

Congress is responsible for the creation of new local governments not the President. The solution has been obvious for years – reformulate the scheme for the distribution of the internal allotment. Various government agencies have suggested other bases for distribution (such as poverty incidence, employment rate, or access to health facilities) which Congress continues to ignore. Until Congress musters enough courage to amend the Code, this problem will persist well beyond the term of Gloria Macapagal-Arroyo.

Gonzalez, absurd

2007-05-23T08:11:00.000-07:00

Secretary Raul Gonzalez' take on the present controversy regarding Gregory Ong's appointment to the Supreme Court is patently absurd.

Ong, presently a Justice of the Sandiganbayan, may in fact be a Chinese citizen and, therefore, not qualified to sit in either the Sandiganbayan or the Supreme Court.

Newsbreak reported that Gonzalez favored Ong's appointment:

"You have to consider also the repercussions. What about all the cases that Justice Ong had decided already? Supposing you are a convict of Justice Ong you will certainly demand that there's a new trial and how many cases are those?" Gonzalez said.

He said that for practical reasons, it would be better to accept Ong's contention that he is a natural born Filipino citizen considering the impact on the cases that he had ruled on and the possibility that those he had convicted could seek a new trial. But Gonzalez indicated that it is best to resolve the matter because "there will always be something hanging over his head."

Secretary Gonzalez defies common sense. Evidently, he would sooner disregard the Constitution and the rights of the wrongfully in favor of practicality.

The issue regarding Ong's citizenship should be settled now. He sits as a Justice of the Sandiganbayan for several years, possibly in contempt of the Constitution.

I doubt that Kilosbayan's petition, stopping Ong's appointment to the Suprme Court is the right way to settle the issue of Ong's citizenship. There is no present case or controversy considering that fact that Malacanang has recalled the appointment. The Supreme Court is likely to dismiss Kilosbayan's petition. There is always the possibility that the Supreme Court will craft an exception in this case and hear the petition anyway, but the better course of action seems to be a case questioning Ong's qualifications as a Justice of the Sandiganbayan. His presence in the graft Court presents a genuine issue that should be settled as soon as possible.

Bare the List; Resolution

2007-05-04T03:14:00.000-07:00

In the consolidated cases of BA-RA 7941 v. Comelec, GR No. 177271 and Rosales v. Comelec, GR No. 177314, the Supreme Court (see Jay B. Rempillo, SC Orders Comelec to Disclose Party-list Nominees’ Names, Court News Flash May 2007, May 3, 2007) resolved the issue regarding the release of the names of part-list nominees.

In a 15-page unanimous decision, the Court En Banc said that the prohibition imposed on the COMELEC under section 7 of RA 7941 (Party-list System Act) is limited in scope and duration as it extends only to the certified list which the same provision requires to be posted in the polling places on election day. It further said that to stretch the coverage of the prohibition to the absolute is to read into the law something that is not intended.

The Court followed Fr. Bernas' arguments (see previous blog) regarding constitutinal right to information. It held tat “In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the names of the nominess of the party-list groups.”

The Court cited section 7, Article III of the Constitution (the right of people to information on matters of public concern) and section 28, Article II of the Constitution (the State adopts and implements a policy of full public disclosure of all its transactions involving public interest) as bases in ordering the poll body to divulge the said names.

Bare the List: tough questions, hard case

2007-04-16T04:26:00.001-07:00

Should the names of party-list nominees be revealed by the Commission on Elections?

Party-list groups, worried that some of these parties are administration fronts, have called on the COMELEC to reveal the names of the nominees. Chairman Benjamin Abalos has refused to reveal these names on the ground that there is no law that compels the Commission to do so. He can even cite section 7 of Republic Act No. 7941 to support his position. That section states that “The names of the party-list nominees shall not be shown on the certified list.” If Chairman Abalos revealed the names of the nominees will he not be charged with violating a clear directive from Congress?

In his latest column, Fr. Joaquin Bernas argues that the COMELEC can be compelled to reveal the names of the nominees of part-list groups vying for seats in Congress. He suggests that there is no logic to Section 7 of the Party-List Act: “Of what use is knowing what groups may participate in the party-list elections if the voters do not know what kind of people they seek to place in Congress?” Unfortunately, a bad law, even a silly one, does not permit us to ignore it and Chairman Abalos will still have a legal basis for keeping the list of nominees secret.

Fr. Bernas then suggests that the prohibition is unconstitutional. He argues that the Constitution can be used as a basis to challenge the COMELEC’s decision. He cites Section 28 of the Constitution’s Declaration of Principles: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.” (Emphasis mine). But this is a weak argument. The provision itself expressly provides that the right is subject to restrictions. Could Section 7 of the Party-List Act be construed as a restriction?

The other argument is that Section 7 of the Bill of Rights which provides that “The right of the people to information on matters of public concern shall be recognized.” Bernas then argues that “Knowing who the candidates are is a matter of highest public concern.”This provision has been interpreted In Gonzales v. Narvasa where the Supreme Court held:

Under both the 1973 and 1987 Constitution, this is a self-executory provision which can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission, wherein the Court classified the right to information as a public right and "when a [m]andamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general 'public' which possesses the right. However, Congress may provide for reasonable conditions upon the access to information...

Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano that "[t]he incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decisonmaking if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of the times." The information to which the public is entitled to are those concerning "matters of public concern", a term which "embrace[s] a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen....

Gonzales, however, also says that the right to information is subject to restrictions that Congress may provide.

Is the COMELEC’s position justified? Perhaps it is. The party-list system encourages the consideration of party platforms in voting for representatives in Congress. Theoretically, voters will cast their votes in favor of a party, not the people behind it. The party’s nominees are intended to determine who will sit in Congress in the event that the party wins enough votes to qualify for seats. It should not matter who is in the list because theoretically the nominees will work towards the realization of the party’s platform in Congress.

Should this view prevail, the solution is to ensure that the parties and organizations vying for seats under the party-list system are genuine parties that represent marginalized groups. The COMELEC’s decision to include parties that do not represent the marginalized have been challenged before and parties of dubious backgrounds have been removed from the list of parties with the help of the Supreme Court (See Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, (G.R. No. 147589, June 26, 2001).

Ang Bagong Bayani provides one argument in favor of revealing the names of the nominees. In that case the Court held that the persons nominated by the party-list candidate-organization must be “Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties.” Towards the end of that decision, the Court held that “not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees.” How can we question the qualifications of the nominees if they are kept from public scrutiny?

This is a tough fight for those agitating for more transparency from the COMELEC. But there is enough I think for the Courts to rule against the position taken by the COMELEC.

Saving the Court of Appeals

2007-03-27T07:22:00.000-07:00

A recent Manila Times Report raises questions regarding the propriety of comments made by Ombudsman Merceditas Navarro-Gutierrez. According to the report (Jomar Canlas, Ombudsman Mercy asks GMA and JBC to please Choose better CA justice nominees, Manila Times, March 27, 2007) the Ombudsman appealed to the Judicial and Bar Council (JBC) and President Arroyo to recommend and appoint better persons—in integrity, competence and character—to prevent the appointment in the Court of Appeals of people like the “Dirty Dozen.” According to Gutierrez, these are justices who are known for selling temporary restraining orders and for other corrupt practices.

The same article, however, states that no formal complaint has been lodged against some of the “Dirty Dozen.”

Gutierrez also asked the JBC to nominate and Malacañang to appoint only persons who are “Judicial Excellence Awardees” and reject those whose only strength is their “connections” and “padrinos” (backers). She fears that some of these corrupt CA justices might enter the Supreme Court in the near future.

The article continues to say that nine male justices and two female justices, assigned in Manila, are allegedly on the list of the allegedly corrupt magistrates in the appellate court. The Court of Appeals is composed of 69 justices, 51 of which are stationed in Manila.

The Ombudsman's comments cast doubt on the integrity of the Court of Appeals. By insinuating wrong doing on the part of some Justices (whom she did not identify) she created the perception that the Justices are corrupt. Those with cases pending in the appellate court are wont to ask, "Are the Justices deliberating on my case among the corrupt Justices?" She faults Judicial and Bar Council which apparently recommends incompetents to the Court of Appeals. She faults the President (all of them?) for appointing incompetents to the same Court.

This is a strained conclusion by the Ombudsman: A dozen or so Justices who may have less than stellar reputations means the JBC and the President have been remiss in their responsibilities. Moreover Ombudsman Gutierrez suggestion that the JBC restrict their nominees to recipients of a certain award has no basis in law. This is not a qualification for a judgeship under the Philippine Constitution. There are no studies to back her conclusions, no data other than the number of allegedly corrupt Justices she has carelessly thrown about. Surely a public official, the Ombudsman no less, should be careful about impugning the credibility of the courts, the President, and the Judicial and Bar Council.

Supreme Court ratings improve

2007-03-18T17:39:00.000-07:00

Speaker Jose de Venecia's attempts to vilify the Supreme Court after it's decision in Lambino was a desperate attempt to pressure the Court to reverse itself. The Speaker has been claiming, without any proof, that there is a clamor for constitutional change in the Philippines. In previous posts, I showed how he presented the Supreme Court as stumbling block to economic progress because it refused to allow the amendment of the Constitution through a “people’s initiative.” Contrary to de Venecia’s claims, there is no evidence that the Court's reputation has suffered because of Lambino. If anything, recent surveys show that the Court's reputation is improving.

Recently, the Supreme Court announced that the Makati Business Club recognized the court (Katrina M. Martinez, MBC Survey: SC is 3rd Best-Performing Gov’t Agency, March 16, 2007) as the third-best performing of 37 government offices, institutions, and basic services surveyed in 2006. This is no small feat for the Court; it moved up five notches from 8th place after obtaining a net performance satisfaction rating of 74.2. The Court followed the Bangko Sentral ng Pilipinas and the Department of Finance which placed 1st and 2nd in the survey with net performance ratings of 87.2 and 85.5, respectively.

The Court also ranked 4th among the agencies which obtained the biggest increase in net satisfaction ratings - almost three times its net rating the previous year.

The MBC's Executive Outlook Survey is conducted by the MBC which measures the opinion and the confidence level of the business sector in economic, corporate, and government performance. The Report is found posted at the MBC's website.

The Social Weather Station's latest report also showed the Supreme Court in a good light. In its First Quarter 2007 Social Weather Survey, the survey found that 44% of the respondents were satisfied and 28% were dissatisfied with the Supreme Court. This reflects a moderately good net rating of +16. The report also stated that the Supreme Court's net rating "was a fairly high +37 at the start of the Arroyo administration, but dropped to neutral in March 2005, and has been modestly positive since then."

Lambino, the Fallout

2007-02-08T20:37:00.000-08:00

I wrote elswehere that the Supreme Court's decision in Javellana in 1973 destroyed its reputation and signaled the Court's subservience to the executive branch of government. More than three decades later, the Arroyo administration elevated the their own attempt to revise the Constitution before the Supreme Court. The Court was given an opportunity to reprise its role in 1973 and approve a shift to a parliamentary form of government despite the apparent defects in manner the Constitution is amended.

When the Court deliberated on Lambino, I suggested that a ruling in favor of the initiative would have been politically safe route; it will shield the Court from heat. I predicted that ruling against initiative would open the Court to vilification by the other branches of government.

Indeed, the Speaker of the House aattacked the Supreme Court and went so far as to initiate impeachment proceedings against the Justices who voted against the initiative claiming the Supreme Court destroyed the dreams of millions of Filipinos when it dismissed the Palace-sponsored campaign.

I also predicted that whatever flak the Court will get will be temporary and that when the smoke has cleared, the Court would become stronger. A recent survey by Pulse Asia proved just that. In that survey, Pulse Asia reported that:

The Supreme Court and Chief Justice Panganiban enjoy higher approval and trust ratings in November 2006 relative to the previous quarter At the heels of the Supreme Court’s decision junking the people’s initiative petition of the Sigaw ng Bayan, the performance and trust ratings of both the Supreme Court and its Chief Justice improve between July and November 2006. While the overall approval rating of Chief Justice Panganiban increases by 9 percentage points during this period, that of the Supreme Court goes up from 36% to 46%.

Furthermore, the Chief Justice also registers a 10-percentage point gain in his overall trust rating between July and November 2006. In the case of the Supreme Court, its present overall trust rating (43%) is 9 percentage points higher than the July 2006 figure (34%).

There is a lesson to be learned here. More than three decades ago, the Court took the safe route, preserved its own existence at the cost of its own credibility. For years the Court had had to struggle to rebuild the people's faith in the institution.

By refusing to pay into politicians' games this time the Court gained public respect. This lesson should inspire public servants to resist every temptation to compromise their integrity. It presents the clearest reason for standing by the truth.

Arroyo, consummate politician

2006-12-14T11:06:00.000-08:00

Arroyo's retreat from constitutional change by whatever means is not only an indication of her sensitivity to popular opinion. It is, more than anything else, the sign that she is the consummate politician. Having tested popular opinion on constitutional change through a constituent assembly, she is at the very least intelligent enough to know that the backlash against the House of Representatives could infect her already tenuous tenure as President. She has sacrificed her pawns at the same time preserved her place at helm of the nation. She packaged her retreat as an attempt to end political divisions but in truth is putting out fires that her allies set when they unilaterally scrapped the rule that constitutional amendments, like other laws, must be approved separately by both chambers of Congress. Arroyo survives yet again. What remains to be seen is whether she and allies will tempt fate again before her term ends in 2010 and tinker with the Constitution.

The threat of "people power"

2006-12-08T10:52:00.001-08:00

Speaker de Venecia's hasty retreat in pursuing constitutional change through a constituent assembly is proof that Filipinos have an appreciation of constitutionalism. The threat of another mass uprising against the Speaker's project apparently forced the administration to reconsider its actions. Persistent manifestations of "people power" in the recent past have led critics, mostly from the West, to claim that we have not yet matured politically. I have argued elsewhere that these uprisings are ways in which people enforce the principles that are enshrined in our Constitution.

Massing forces to challenge the Speaker's actions in the House of Representatives shows that Filipinos in fact want to defend their Constitution. Contrary to the critics' stand, Filipinos will not settle every dispute through popular uprisings, but are in fact guided by a respect for the fundamental law of the land.

That "Grand Deception"

2006-12-04T05:53:00.000-08:00

The Supreme Court's decision in Lambino v. Commission on Elections is consistent with my prediction I posted last October. In that decision, a bare majority of the Court held that the Commission on Elections did not abuse its discretion when it voted to dismiss Sigaw ng Bayan's petition for initiative.

The Court denied a motion for reconsideration on November 21, 2006 with the same vote but added that:

Ten justices however reiterated their earlier opinions that RA 6735 is sufficient and adequate as an enabling law to amend the Constitution through a people’s initiative. Chief Justice Artemio V. Panganiban and Justices Consuelo Ynares-Santiago and Adolfo S. Azcuna joined their dissenting colleagues – Senior Associate Justice Reynato S. Puno, and Justices Leonardo A. Quisumbing, Renato C. Corona, Dante O. Tinga, Minita V. Chico-Nazario, Cancio C. Garcia, and Presbitero J. Velasco, Jr. – in opining that RA 6735 suffices as an enabling law to implement the constitutional provision on people’s initiative.

In my earlier post, I wrote:

A majority of the Justices may reverse Santiago but they can still dismiss the case on any or a combination of the following grounds:

1. the manner in which the signatures were gathered was irregular or falls short of the minimum required by law; or
2. people’s initiative cannot be used to revise the Constitution but only to amend it. It can rule that the proposed shift to a parliamentary form of government constitutes a revision of the Constitution; or because
3. it will become evident to the Court that the initiative is driven by the Arroyo administration not the people.

These are the reasons why the Court denied Lambino. The battle is not net over as Chief Justice Artemio Panganiban is set to retire on December 6, giving the Arroyo administration an opportunity to tilt the vote in its favor.

Tradition and seniority

2006-11-17T06:47:00.000-08:00

So much is said about the possible appointment of Senator Miriam Defensor-Santiago to the Supreme Court but the truth is that there is no law that prevents her appointment. President Arroyo would be well within her right to appoint her to the Court and to designate her as Chief Justice.

This would be nothing new for the President. Arroyo broke the tradition of seniority by designating Artemio Panganiban as Chief Justice and in bypassing Justice Reynato Puno, who was named to the court three years earlier. No other President since Ferdinand Marcos has bypassed the most senior member of the Court when designating the Chief Justice. Marcos’ refusal to honor the tradition of seniority was regarded as a means of retaining control over the judiciary. He bypassed Claudio Teehankee, a Justice critical of the Marcos regime, twice to prevent or delay his rise to the post of chief justice.

Marcos Pa Rin!

2006-10-13T06:23:00.000-07:00

Pro-initiative advocates presented a disturbing suggeston that was featured in the news recently ostensibly in support of the floundering case on initiative now pending with the Supreme Court (Lambino v. COMELEC, G.R. No. 174153).

The Manila Standard reported that Deans Danilo Fariñas of the University of Baguio and Hermogenes Decano of the University of Pangasinan claimed “there is no distinction between the terms amendment and revision of the 1987 Constitution because they are “understood to be one and the same” by the people, who are considered the sovereign authors of the fundamental law of the land.” The lawyers also said that even law practitioners have agreed to define the words “amend” and “revise” as pertaining to “changes.” Fariñas and Decano said they found the “technical distinctions unnecessary” because even the US Federal Constitution from which the Philippine Constitution extensively adopted its principles, makes no mention of the word revision as distinct from amendment.

Fr. Bernas discusses the distinction between amendment and revision very clearly elsewhere and I will not dwell on this point. I will say, however, that I am fascinated by the manner in which the deans claim that the Filipino people and for "law practitioners" have made a decision on what the Constitution means. One is forced to wonder how they come to this conclusion.

The reference to the US Constitution is puzzling. The issue before the Supreme Court is not the interpretation of the US Constitution- it is the interpretation of the 1987 Constitution of the Republic of the Philippines. These charters differ on so many fundamental points especially in light of the Philippines' penchant for changing its Constitution. Our Supreme Court has distinguished these Constitutions on more than one occasion (See Francisco, Jr. v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, on the differences between these Constitutions insofar as impeachment is concerned).

The deans, however, make things worse by making a very alarming suggestion. The Standard's story continues:

Fariñas further argued that the Supreme Court already ruled in several cases that any technical difference between “amendment” and “revision” would become immaterial once Filipinos voted to ratify the proposed constitutional changes in a national referendum.
Fariñas said the proposed changes under the current people’s initiative petition would be brought to the people for approval in a plebiscite.
“If the majority votes in favor of the proposed changes, then defining such changes as amendment or revision would be rendered irrelevant, as already ruled by the Supreme Court,” Fariñas and Decano said.

The deans are of the view that the people should simply be allowed to vote on the proposed amendments/revisions regardless of whether it might offend the Constitution, and then render any question on constitutionality moot.

It is surprising that such a suggestion should come from lawyers or law professors. Their view suggests that the people are not bound by the Constitution and that if they wished it, they could rewrite it anytime and in any manner they want to. This view ignores the fact that the people themselves placed restrictions on the manner in which their collective will is to be amended. This is the reason they inscribed Article XVII into the fundamental law of the land.

Students of history should be able to detect the inspiration behind this suggestion. This is the way Ferdinand Marcos was able to force the implementation of the 1973 Constitution. It will be recalled that Congress called a Constitutional Convention for that purpose of amending the 1935 Constitution. Before the Constitutional Commission could finish its work, Marcos placed the country under martial law. He then promulgated a new Constitution purportedly approved not through ratification procedures laid down in either the old or the new constitution but by creating People’s Assemblies in every barrio composed of all citizens over 15 years of age. These assemblies were convened and asked to vote on the Constitution, which was presented without opposition.

Suits questioning the legality of the ratification of the 1973 Constitution were filed with the Supreme Court. The suits challenged the manner in which the 1973 Constitution was allegedly ratified by pointing out that the President did not have the authority to create Citizens Assemblies and that these assemblies did not have the power to approve the proposed Constitution. It was also argued that the President did not have the power to proclaim the ratification of the proposed Constitution.

Despite the irregularities attending the use of the citizens’ assemblies, the Supreme Court in Javellana v. Executive Secretary, 151-A Phil. 35 (1973); 50 SCRA 30 (1973) looked the other way. While a majority ruled that the Constitution was not validly ratified, it also ruled that the new constitution was already in force.

How was that possible? Under the 1935 Constitution a vote of two-thirds of all the members of the Court was needed to declare any law unconstitutional. Since it was an 11-member Court, seven votes were needed to declare any act unconstitutional.

While six members of the Court concluded that the 1973 Constitution was not properly ratified, the Court went to ask whether the new charter was otherwise in force. The ten Justices of the Court (there was one vacancy at that time) voted as follows: Four Justices believed the Constitution was in force and only two were categorical in saying that it was not. Four other Justices found it impossible to determine whether the people had acquiesced to the Constitution and refused to cast a vote on the last issue. Thus, despite the fact that only four Justices ruled that the constitution was in effect, there were not enough votes to hold that Constitution was not in effect. In effect, Marcos violated the law but the Supreme Court said it was all moot in light of the adoption of the Constitution.

Javellana put the Court in disrepute. Before that case, the Supreme Court was “a respected, independent and powerful legal force in Philippine politics and government.” It disrupted the pre-existing constitutional order and validated the establishment of Marcos’ martial law regime. See Florentino P. Feliciano, The Application of Law: Some Recurring Aspects of the Process of Judicial Review and Decision Making, 37 Am. J. Juris. 17 (1992). But long before the end of Marcos’ rule, the public respect formerly accorded the Supreme Court and its reputation for independence had dissipated. By the time Marcos was deposed, the Court was regarded by many Filipinos as subservient to the President.

Deans Fariñas and Decano are suggesting that a plebiscite be conducted so that all legal questions are rendered moot. This is not the way the legal system works: we do not ignore the law and by-pass the courts. Javellana is a monument to judicial ineptitude - we should not look to it as a guide in resolving legal disputes but avoiding it like the plague.

Chief Justice

2006-10-10T15:19:00.000-07:00

The Judicial and Bar Council has declared the position of Chief Justice of the Supreme Court open for nomination with the impending retirementof Chief Justice Artemio V. Panganiban on December 7, 2006. The practice of selecting the Chief Justice should be the subject of serious study (I am not aware of any) especially in light of our recent experience. The selection of the Chief Justice should be a critical task but the selection process in the Philippines, according to critics, is far from perfect.

The designation of Artemio Panganiban as Chief Justice raised two issues: the system engenders cronyism and the system is exclusionary in that it limits potential appointees to sitting members of the Court.

The last time President Gloria Macapagal Arroyo selected a Chief Justice, her decision generated controversy. Arroyo ignored the most senior member of the Court, Reynato Puno in favor of Artemio Panganiban. Puno was named to the Court three years earlier.

No President since Ferdinand Marcos has bypassed the most senior member of the Court when designating the Chief Justice. Marcos’ refusal to honor the tradition of seniority was regarded as a means of retaining control over the judiciary. He bypassed Claudio Teehankee, a Justice critical of the Marcos regime, twice to prevent or delay his rise to the post of chief justice. See Bernardo M. Villegas, The Philippines in 1985: Rolling with the Political Punches, 26 Asian Survey 127, 128-129 (1986).

Some saw Panganiban’s designation as Chief Justice as the President’s way of thanking him for helping secure the presidency in 2001. (Jocelyn Montemayor, Palace: CJ choice is no ‘bayad-utang’, Malaya, December 22, 2006). In 2001 Panganiban prevailed upon the then Chief Justice Hilario Davide to intervene in the unconventional removal of Joseph Estrada as President ostensibly to avoid the possibility that military elements might take advantage of the volatile political situation. So visible was his participation in the installation of President Arroyo that when the legitimacy of the Arroyo administration came before the Supreme Court, both he and Chief Justice Davide inhibited themselves from the Supreme Court proceedings. (Christine Avendano, Armand N. Nocum, & Juliet Labog-Javellana, Panganiban named 21st SC Chief Justice, Philippine Daily Inquirer, Dec. 21, 2005).

Another issue that came up last December involved the nomination of Senator Miriam Defensor Santiago to the position of Chief Justice. She was not considered for the position, however, because the Judicial and Bar Council refused to extend its nomination period to enable her name to make the list of candidates. In response, Santiago suggested that the council should be abolished under a new Constitution, or if not its budget should be slashed "to the barest minimum" as a warning.

Santiago complained of "apparent discrimination without basis" when the JBC declined to extend the period of nomination for the post of chief justice but extended the same for the post of Ombudsman. The senator said it appears that the main function of the JBC is to ensure that only incumbent justices will be nominated as chief justice, thus excluding any other candidate, no matter how qualified.

Santiago added that "Under the present system, it is possible for a Supreme Court justice to support his personal protégés for appointment to the JBC, and in turn for those protégés to vote for him as chief justice when a vacancy occurs. That would be very unhealthy for the judicial system." ( JP Lopez, Miriam wants JBC budget slashed, Malaya, December 06, 2005).

On December 26, 2005 the Philippine Daily Inquirer had an editorial that called on President Arroyo to choose the next Justice of the Supreme Court "not with her own personal and political interests in mind, but with those of the institution and the nation." The present docket of the Court makes it difficult for the President to follow the Inquirer's plea. Arroyo struck out three times earlier this year when the Court (two-thirds of whom are her own appointees) ruled against her administration on three crucial issues (EO 464, Proclamation 1017, and the Calibrated Preemptive Response policy).

Arroyo's political future is tacked on her campaign to amend the Constitution and to shift to a parliamentary government-the temptation to appoint an ally must be irresistible. Even inevitable.

Prime Minister Arroyo

2006-10-09T14:48:00.000-07:00

Gloria Macapagal-Arroyo will move heaven and earth to become Prime Minister when the Philippine system of government is somehow altered into a parliamentary govenment. She needs the title.

There are two things Mrs. Arroyo cannot shake from the judgment of history no matter how long she remains in power.

The first is that she is the most unpopular president the Philippines has had in recent memory, faring worse than Ferdinand Marcos. The second is that she is the only Chief Executive in Philippine history who has never had a mandate to govern.

The first issue does not bother her; not openly anyway. Her administration dishes out standard replies to every survey that consistently puts her at the bottom of the pupularity scale - this is not a popularity contest. Her administration will make the hard decisions that will revive the economy etcetera etcetera and so forth.

The second, I suspect, eats at her very core. Arroyo became President after Estrada was forced to leave office. As vice-president, she was second in the line of command and assumed the presidency by sheer luck. The results of the 2004 elections are suspect because she was caught conversing with an Election Commissioner, apparently establishing her margin of victory over Fernando Poe Jr. With her allies and the church scrambling to conceal the truth, Arroyo cannot claim any legitimate authority from whom she derives the power to govern.

Ferdinand Marcos was elected into office two times. Corazon Aquino established a revolutionary government when Marcos was driven out of office. An election protest against Fidel V. Ramos’ election was dismissed because it had become moot. The protestant in the case was deemed to have abandoned her claim to the Presidency when she won and assumed the office of Senator of the Philippines in a subsequent election. See Defensor-Santiago v. Ramos, P.E.T. Case No. 001, February 13, 1996. That issue had closure.

Joseph Estrada may have been driven from office by angry mobs but he was elected President with the largest margin of victory in the history of the Philippines.

A stint as Prime Minister, however short, will finally give the Arroyo administration a hint of legitimacy that has eluded her.

Avoiding, Voiding Santiago

2006-10-09T09:55:00.000-07:00

Malaya's editorial on October 9, 2006 in part reads:

During the hearing conducted by the Supreme Court, the justices did not fall for the line that the tribunal is limited to settling the issues of law. They pointedly grilled Sigaw and Ulap counsels on the authenticity of the signatures. Chief Justice Artemio Panganiban said in open court that if it could be shown that the signatures were fake and their gathering was attended [by] irregularity, then there would be no need to revisit Santiago vs Comelec. The Sigaw and Ulap petition would be dismissed outright.

I am uncomfortable with the fact that the Supreme Court is assuming what is technically the function of the Commission on Elections. The verification of the signatures that accompany a petition for initiative is not a judicial function. But the Court evidently directed the parties to show if the collection of signatures was conducted properly and if it meets the requirements of the law.

The Supreme Court's decision and the thrust of the tenor of the oral arguments suggest an impending compromise on the resolution of the case. Let us speculate:

If the collection of signatures is irregular or if it otherwise fails to meet the minimum number of signatures required for a petition for initiative, the Court can avoid the issue of whether Santiago should be overruled. The Court deflects political heat by dismissing the petition on another ground. This course of action, however, will only prolong the resolution of the issues raised in the Lambino case. Proponents of constitutional change will continue pressing for amendments or revisions to alter the Constitution through a petition for initiative.

It is more likely that the Court will reverse Santiago and still dismiss the case.

The Supreme Court can rule that Republic Act No. 6735 is in fact sufficient for purposes of amending the constitution through peoples’ initiative. The Court will reason that it is not compelled to follow prior decisions especially when it is infused with new members and when the earlier decisions are delivered by a divided court marked by strong dissents. There are 13 new members of the Court who are reviewing a decision issued by a deeply divided court. Santiago is clearly vulnerable to a reversal.

A majority of the Justices may reverse Santiago but they can still dismiss the case on any or a combination of the following grounds:

1. the manner in which the signatures were gathered was irregular or falls short of the minimum required by law; or

2. people’s initiative cannot be used to revise the Constitution but only to amend it. It can rule that the proposed shift to a parliamentary form of government constitutes a revision of the Constitution; or because

3. it will become evident to the Court that the initiative is driven by the Arroyo administration not the people.

This compromise will allow both parties to claim victory: the administration’s drive to revise the Constitution will be sustained although it will suffer a setback.