Posts Tagged ‘constitution’

Dynasties and Restricting the “Right to Run”

The dominant argument against the passage of legislation banning political dynasties is that no person should be deprived of his right to run for public office solely on the basis of his family name.  The argument contains two (2) angles: (i)  the scope of Congress’ authority to impose restrictions on the right to run and (ii) an “equal protection”  angle, both of which we will discuss in this article.

Driving our hook  directly into the flanks of these dual objections, it should be said right away that there is no Constitutional provision which specifically grants an individual any “right to run for public office.”    Nevertheless, the view has been expressed that the right “touches on” both the freedom of expression and freedom of association clauses of the Constitution. This reasoning is based on Mancuso vs. Taft [476 F2d 187 (1972)] where it was ruled that “any legislative classification that significantly burdens [the candidacy] interest must be subjected to strict equal protection review.”

In 2010 however, the Philippine Supreme Court denied application of the Mancuso doctrine, pointedly observing that the case had been overturned. More importantly, it declared that “’[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either.’ Thus, one’s interest in seeking office, by itself, is not entitled to constitutional protection” [Quinto v. Comelec, GR No. 189698 (citing Bart v. Telford, 677 F2d 622)]. Consequently, instead of  the “strict review” favored by Mancuso, the Court limited itself to a “balancing of interests” approach in determining the validity of a legislation limiting candidacy interest [1].

The implications of the Quinto ruling are that: (a) the so-called “right to run” is NOT a fundamentally protected right in the same category as the freedoms of expression and association; and (b) Congress may validly restrict a person’s “interest” to run for office provided only  that the limitations “[s]ubstantially serve governmental interests”  [Supra.]. In the case of putative anti-political dynasty legislation, the “governmental” or “state interest” involved is supplied by no less than  the Constitution itself, particularly the right to “equal access to opportunities for public service” under Article II, Section 26 to wit:

“Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.”

It may be worth mentioning now, if only for the sake of leaving no stone unturned, that there is another case [Powell vs. McCormack, 395 US 486 (1969)] where the US Federal Supreme Court ruled  that  “[t]he Constitution leaves the House xxx without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.”  The issue in Powell however, involves an interpretation of the authority of the two houses to be the “judge” of the qualifications of its members. It was held that this authority (of the Lower House) cannot be extended so as to allow the exclusion of a candidate, not otherwise disqualified by the Constitution, from taking his seat after being elected by his constituents. Therefore, the Powell ruling does not affect the authority of the Legislature to impose qualifications in addition to those already provided for in the Constitution BEFORE the candidate is elected or chooses to run. Besides again, our  Constitution (via the cited Section 26) itself directs Congress to require non-membership in a political dynasty as an additional qualification for candidates seeking to hold elective office.

Finally, I think that Quinto effectively disposes of the equal protection challenge against anti-political dynasty legislation in general.  Citing an earlier case (Farinas v. Executive Secretary,[GR No. 147387 (2003 )], the Court held that a “legal dichotomy” between the treatment of different classes is valid where substantial distinctions exist between the classes as to justify unequal treatment, to wit:

“The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:

 ‘The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Indeed, there does appear to be ample reason to treat members of political dynasties differently from the non-dynastic candidates. Two related studies of the Asian Institute of Management Policy Center (one a follow up of the other) suggest strong numerical correlation between poverty and incidence of dynasties. More particularly, the studies showed that there were more dynastic Congressmen in “regions with higher poverty, lower human development and more severe deprivation” [Mendoza, Beja, Vernida and Yap, An Empirical Analysis of Political Dynasties in the 15th Philippine Congress (January 1, 2012)] [2] Another  study (also made by the AIM Policy Center) of the 2013 Philippine Mid-Term Elections provided numerical evidence that suggests that President Aquino and Vice President Binay significantly helped to deliver votes to their relatives Bam Aquino and Nancy Binay. Of Noynoy Aquino and Bam Aquino, for instance, the study [3] observed that:

“President Aquino’s votes in 2010 turned out to be one of the strongest determinants of Senator Aquino’s votes in 2013. That variable is positive and statistically significant, indicating that support for the President may have also been reflected strongly in support for Senator Aquino. A 1 percentage point increase in the share of votes for President Aquino at the provincial level, translated into a 0.29 percentage point increase in the votes for his cousin, Bam Aquino.”

 

 

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[1]  Quinto v. Comelec (supra) involved the validity of a “deemed resigned” provision (Section 4(a) of Comelec Resolution 8678, enforcing the prohibition against partisan politics by civil service employees, to wit:

‘Incumbent Appointive Official– Under Section 13 of RA 9369, which reiterates Section 66 of the Omnibus Election Code, any person holding a public appointive office or position, including active members of the Armed Forces of the Philippines, and officers and employees in government-owned or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

 ‘Incumbent Elected Official– Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair Election Act,which repealed Section 67 of the Omnibus Election Code[18] and rendered ineffective Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of the campaign period corresponding to the positions for which they are running, an elected official is not deemed to have resigned from his office upon the filing of his certificate of candidacy for the same or any other elected office or position. In fine, an elected official may run for another position without forfeiting his seat.

[2] http://dx.doi.org/10.2139/ssrn.1969605

[3] Canare, Lopez, Mendoza  and Yap. The 2013 Mid Term Elections: An Empirical Analysis of Dynasties, Vote Buying and the Correlates of Senate Votes,  (February 2014). Posted in: http://www.kapatiranparty.org/wp-content/uploads/2014/02/The-2013-Philippine-Mid-Term-Election-An-Empirical-Analysis-of-Dynasties-Vote-Buying-and-the-Correlates-of-Senate-Votes.pdf


A frank discussion about impeachment, after impeachment

Two things stand out from the exercise of impeaching the Chief Justice:

One, the voting could have been closer. 

Since Corona eventually “revealed” the true extent of his deposits (and in the process admitted the omission charged in the Complaint), his defense was confined to providing legal justification for the non-inclusion of certain amounts in his SALN. In essence, he claimed that he did not disclose a portion of his peso deposits because they were owned by other members of his family and he did not disclose the peso equivalent of his dollar deposits because the dollar deposits were absolutely confidential under the FCDA.

However, if the revelation had been done earlier and without constructing a veritable Marginot Line of technical obstacles to defeat court processes, the former Chief Justice would have avoided (largely if not entirely) the impression that he had something to hide. Then, the impeachment case would have been reduced to a purely legal question: whether or not the non-disclosure of certain assets in an official’s Statement of Assets Liabilities and Net Worth without intent to maliciously conceal these assets, constitutes a high crime which warrants impeachment of an official. The reality of it is that NONE of the Supreme Court justices’ SALNs are available to the public and the non-disclosure of true worth as required by law is not unique to Corona.  His case grated sensibilities only because it was colored by impropriety. Thus, had the defense been able to show lack of malicious intent to conceal, the Senate might have found it harder to justify removal of the highest magistrate on a single technical ground.

Two, a discussion of the Rules and the nature of the impeachment process is in order.

It must be of some significance that the provisionon “impeachment” is found in Article XI of the Constitution on “Accountability of Public Officers.” Read with the other provisions in the same Article, it takes no great leap of logic to realize that impeachment is simply a platform to allow the people to directly hold certain high officials accountable for their conduct in office.

On the other hand, the term “accountability” or the “state of being accountable” connotes not only liability for acts but “explanation.” In other words, an impeachment proceeding is not so much a trial (unfortunate persisting terminology notwithstanding) to prove that a public officer should be removed but as a national inquiry into his conduct while in office. The removal (and disqualification) of the impeached officer is nothing but the logical consequence of a positive finding of failure to properly render an account and is not punitive but protective. It is protective insofar as the removal (and/or disqualification) of the public officer is not designed so much as to punish the accountable officer but to prevent further damage to the people which he serves.

In Federalist No. 65, Alexander Hamilton argued that the Senate was the “most fit repository” of the power to decide impeachment cases because impeachment was “designed as a method of NATIONAL INQUEST” and the legislators are the most proper “inquisitors,” being the representatives of the nation themselves.If we subscribe to this proposition, then it also follows not only that a “fishing expedition” is allowed but that it is in fact the main point of the impeachment.
It was frustrating to see technical Rules of Evidence, on the theory that they are “suppletorily” applicable, be utilized to hamstring the process of discovery. For that matter, other procedural concepts are hardly appropriate in the context of impeachment proceedings. Chief of these is the extension of the Right of the respondent in an impeachment proceedings to the same presumption of innocence accorded to an accused in a criminal case. The fact that the prosecution agreed to such application hopefully has not elevated the principle to a precedent because it is simply misplaced. A respondent in an impeachment case cannot be given the same presumption because: (i) an impeachment case is not punitive and the respondent does not stand in the same footing  as the accused in a criminal case; and more importantly, (ii) the respondent in an impeachment case has already been impeached by the Lower House. Consequently, the burden is not on the prosecution but on the “defense” to show that the complaint is unmeritorious.

Impeachment: How did it come to this?

Americans Reinstate Audencia Territorial: Judges take the Oath

 

Now that the impeachment trial of the Chief Justice is well underway, it is worth some time to examine how we had arrived at this situation.

After EDSA and under the helm of the first President  Aquino, the sovereign Filipino people  overhauled their Constitution for the second time (not counting the provisional Constitution). One of the most significant innovations of the 1987 Constitution was Article VIII, Section 1 which expressly bestows power on the courts not only to decide “actual controversies” but also to correct grave abuses of discretion “on the part any branch or instrumentality of government,” to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.

This “power” to review acts of other branches is not exactly new. In Angara vs. Electoral Commission (GR No. L-45081), the Supreme Court was asked to decide a conflict between a Resolution of  the National Assembly (i.e., the legislature) confirming the election of Jose Angara and a resolution of the Electoral Commission allowing his opponent until a certain date to file a protest. One of the issues raised in the case was whether the Supreme Court had jurisdiction to settle the controversy involving as it does a co-equal branch of government (the National Assembly) and a Constitutional body.

In its Decision penned by Justice Laurel, the Supreme Court recognized the supremacy of each branch “within its own sphere” but held, much like in Marbury vs. Madison, that the Constitutionally mandated system of checks and balances requires the Supreme Court to effectively check the other branches of government because of its power to determine constitutional boundaries and if other branches went beyond them. It went further than Marbury vs. Madison however, in that the High Court pronounced itself the “final arbiter” to settle constitutional conflicts in “times of social disquietude or political excitement,” thus:

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

That assertion of judicial supremacy has never been seriously questioned and arguably may even be critical to the orderly functioning of society. To be fair, the Supreme Court has showed self restraint in the exercise of judicial power. Oddly enough therefore, the need to express the authority to exercise judicial review more definitively in the Constitution came as a reaction to the perceived weakness of the Tribunal and its hesitation to correct legal abuses committed by the former President Marcos in cases like Javellana vs. Executive Secretary (GR No. L-4460) .

As it turns out, strengthening the judiciary is all well and good but inadvertently manufactures another logical dilemma: that of a counter-majoritarian court which has the power to strike down acts of the other branches of government. In other words, how is it possible, in a “democratic” government founded on the rule of the majority, for unelected magistrates to veto acts of officials elected by the people and in certain cases even influence policy? To whom are they accountable?

The obvious answer is that Justices of the Supreme Court are accountable to the people directly. Under Article XI, Section 3 of the 1987 Constitution, an impeachment complaint may be initiated by any citizen upon a resolution of endorsement of any member of the House of Representatives, thus:

Section 3.

  1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

  2. A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

  3. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

  4. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

  5. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

  6. The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

  7. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

  8. The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

However, this is true of all officials who can be removed by impeachment.  Thus, the provision is not specifically designed as a check against the abuses of a “rogue” court and may prove to be inadequate for the purpose.

As the impeachment grinds on and more legal issues are raised in the Senate, resort at some point to the Supreme Court almost seems inevitable. To what extent then, if at all, will the Supreme Court assert its role as the “final arbiter” of legal questions as against the exclusive jurisdiction of the Senate over impeachment cases?

 


The Bastard and the Messiah: Problems With the Philippine Presidential System

Rightfully or wrongly, the 1987 Constitution adopts such a pessimistic attitude towards the President that it almost seems to be betting that more often than not, Filipinos will elect the bastard. In the process, it also hampers a “good” President with restrictions that make it extremely difficult for him to deliver the monumental course changing performance that the collective dreams about.


Martial Law

While the murder of women and children is certainly reprehensible business and must be dealt with not only with decisiveness but even with some measure of violence, it hardly seems that martial law is necessary or even germane to the current situation. At least from a legal perspective, it’s like removing a particularly troublesome hangnail with an exceptionally large battle-axe.