Saturday, October 29, 2011


Joaquin G. Bernas, S.J.
Justice Douglas, in Aptheker v. Secretary of State, said: "Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interest of security . . . . That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes."
Freedom of movement in Philippine law has evolved through the 1935, 1973, and i987 constitutions. The “watch list order” issued by the Secretary of Justice must be measured against the present status of the current constitutional provision
The 1935 provision simply said: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired." The teaching then was that no one could be compelled to change his or her home except in accordance with law. Thus, when the Mayor of Manila sought to cleanse the city of prostitutes by sending them to Davao, the Supreme Court stopped him. The Court then said: "If [the City Mayor and Chief of Police] can take to themselves such power, then any official can do the same . . . And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen."
The 1973 Constitution altered the 1935 text to read: "The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health." The liberty could thus be impaired either "upon lawful order of the court" or even without such order of a court provided that the restriction was "necessary in the interest of national security, public safety, or public health." The phrase "within the limits prescribed by law" in the 1935 provision disappeared. Thus, the net effect was that an executive officer could impair liberty of abode and of travel even without a prior court order provided only that in the executive officer's judgment impairment was "necessary in the interest of national security, public safety, or public health."
Drastic attempts by the government to control the travel of citizens during the period of martial law did reach the Court. The curtailment took the form of denial of exit permits. The Court had occasion to warn the Travel Processing Center not to treat the constitutional guarantee of the right to travel as an empty phrase in a pauper’s will.
The 1987 Constitution has strengthened the guarantee by splitting freedom of movement into two distinct sentences and treating them differently. The liberty of abode is treated in a separate sentence. It may be impaired only "upon lawful order of the court," and the court is to be guided by "the limits prescribed by law" on the liberty itself. The clear intent was to proscribe practices like "hamletting."
As to liberty of travel, under the 1987 law, it may be impaired even without court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations. He can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which had disappeared from the less libertarian 1973 text.
My questions, therefore, are two. First, in what way will the travel of GMA be a threat to "national security, public safety, or public health.” Second, by what statutory authority is the Secretary of Justice preventing the exit of GMA?
In issuing “watch list orders” the Department of Justice has relied on its prosecutorial powers as found in Section 3[1], [2] & [6], Chapter I, Title III, Book IV of the Administrative Code. Of these, the only part specifically related to travel is Section 3(6) which deals with the admission and stay of aliens! In effect, the policy being followed now claims even a broader executive discretion than that given under the 1973 Constitution which at least was limited by the needs of "national security, public safety, or public health.”
The limitation on the right to travel must be based on law and not on a mere executive circular. The limitation may also be by legitimate court order under the Rules of Court. As the Court has said in reference to persons out on bail, (and who are therefore under the jurisdiction of a court), the right to travel should not be “construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxiliary writs, process and other means necessary to carry it into effect may be employed by such Court or officer.” The executive department is claiming similar discretionary power and without relation to national security, public safety, and public health.
Incidentally, the celebrated case on the right to travel was the ban of President Cory Aquino on the former President’s return to the Philippines. Since the authority to impair the right to travel must be based on law, there was need to point to a law giving her such authority. The Court found it in the “faithful execution clause” of Article VII, Section 17. The Court accepted the argument that the return of Marcos then could be a threat to public safety and the stability of the government at that time. Is the Secretary of Justice making such claim even if the President himself has been quoted as saying that he has no objection to the foreign travel of GMA?
31 October 2011

Saturday, October 22, 2011

ARMM Elections

Joaquin G. Bernas, S.J.
The Supreme Court , last Tuesday, came out with a decision on what to do with the R.A. 10153 calling for synchronization of ARMM local elections with the 2013 elections. R.A. 10153 had said that, after the expiration of the term on September 30, 2011 of the elected regional elections, no elections should be held until May 2013. Since that would leave the elective positions vacant, R.A. 10153 authorized the President to fill them by appointment of temporary officers. Expectedly, petitions for the nullification of R.A. 10153 were filed with the Supreme Court.
Early reports about the decision said that the Court voted 8-7 in favor of the validity of the law. But the score is not really as straightforward as a simple 8-7. It is necessary to look at the various issues involved. Let me attempt this on the basis what has been released in the Internet.
First, there is the issue of synchronization. It seems clear from SC spokesperson Marquez’ announcement that 15 justices were in agreement on that point. But why synchronize? Even in the early debates on the subject, the support for synchronization was founded on the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections.
Moreover, there is another reason given for synchronization peculiar to the ARRM. It is argued that the absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. This reason, coupled with the desire for economy, eventually convinced Congress to pass the synchronization law.
But should not RA 10153 be subjected to a plebiscite as an amendment to the Organic Act? The simple answer is that R.A. 10153 is not an amendment to the Organic Act. The OA did not set the date for regional elections. True, R.A. 9054 had a date for elections, but it was a date for the first election and not for regular elections. The date set by R.A. 9054 therefore is functus officio. To say that a plebiscite is needed to amend it is to say that it is an irrepealable law. The date for regular elections is a matter left by the Organic Act to ordinary legislation.
The reported 8-7 split was not on the issue of synchronization but on the manner of filling the vacancies left by the expiration of the term of elected officials last September 30. It is not a clean split. How break it down?
8 justices say that the President should fill the vacancies by appointment. They oppose holdover by the elected officials because a holdover would extend the term beyond the three years allowed by the Constitution. What this means is that a holdover beyond the term is not just an extension of tenure. It would be in fact an extension of term in violation of three year constitutional limit for local officials.
As for the President’s power to appoint, I believe that it can be justified on the basis of what is called the “faithful execution clause” found in Article VII, Section 17. In effect this means that when a vacancy exists and there is no law indicating how it is to be filled, the President in exercise of his “residual powers,” fills it. But in fact there already is a law. R.A. 10153 gives the power to the President.
2 Justices, however, would recognize only a power of the President to appoint a Governor and would call on the Comelec to schedule special elections for the other vacated offices. In my view it is for the legislature and the executive, and not for the Court, to decide whether or how these vacancies or to be filled. I do not see how the Comelec can set an election date different from the date already set by R.A. 10153. The Comelec’s power is only to enforce the law.
I have not seen a written opinion of the rest of the justices led by the Chief. I understand, however, from the statement of the SC spokesperson that they see no virtue at all in R.A. 10153 except for the call for synchronization. They do not recognize the President’s power to appoint and would have the elected officials holdover until the 2013 elections.
The decision, of course, is not yet final because reconsideration is still possible. Already those who had opposed the passage of R.A. 10153 are set to go to Court to plead for reconsideration. What could be the final result? With all due respect, let me speculate.
First, on the matter of synchronization, it would be difficult to foresee a reversal of the 15-vote majority – even by a Court that is accused of tending to flip-flop.
As to the power of the President to fill all regional elective positions, I do not expect those who reject this totally to budge from their negative position.
As to those who would give to the President only the power to appoint only a Governor, whichever direction they might eventually go will not really affect the majority.
What of special elections? Think of the expense, considering that May 2013 is not so far away.
24 October 2011

Saturday, October 15, 2011


Joaquin G. Bernas, S.J.
With the debate going on now on the urgency or non-urgency of the Freedom of Information Bill one might get the impression that the Bill is about a novel right. As a matter of fact, however, there already is a constitutional provision on the subject. The debate is more about the clarification of the right and about the advantages and disadvantages, or even of the danger, of providing for a statutory version.
The constitutional guarantee now reads: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”
As can be seen, the provision is both a grant of the right and a clarification that the right may be subjected to statutory limitations. The right was first introduced in the 1973 Constitution. It is an improvement on what was originally proposed to the 1971 Constitutional Convention. The orgitnal proposal simply said that access to official records and the right to information "shall be afforded the citizens as may be provided by law." It therefor was not a self-executory provision. It needed statutory implementaion. The draft was later reworded to make the Constitution itself give the right, but subject to statutory limitations.
The significance of this change may be seen when viewed in the light of the pre-1973 case of Subido v. Ozaeta. The question presented before the Court was whether the press, and, for that matter, the public, had a constitutional right to demand the examination of public land records. The Court answered: “We do not believe that this constitutional right [freedom of the press] is in any way involved. The refusal by the respondent does not constitute a restriction upon or censorship of publication. It only affects facilities of publication, and the respondents are correct in saying that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution.” Fortunately, however, the Court finally ruled that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate.
The 1973 Constitution went beyond the Subido case and recognized the right of access to public documents and records as a self-executory constitutional right. The role given to the National Assembly was not to give the right but simply to set limits on the right granted by the Constitution. The right is now recognized as a public right where the real parties in interest are the people. Hence, every citizen has “standing” to challenge any violation of the right and may seek its enforcement by mandamus.
The 1987 Constitution has preserved the 1973 text but with the addition of the phrase "as well as to government research data used as basis for policy development." The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies which the government wanted to espouse. The reference, however, is to "government research data," that is, to the findings of government funded research and not to the findings of privately funded research over which private proprietary rights might exist.
The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is "subject to such limitations as may be provided by law." Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law or from what the Supreme Court has called the "inherent power [of an officer] to control his office and the records under his custody and . . . to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights."
The question then boils down now to determining the scope of official regulatory discretion. This is what the Freedom of Information Bill tries to do. While the Constitution says that the right may be limited by law, the Bill in effect seeks to limit the scope of official regulatory discretion.
The problem, however, lies in determining what matters are of public concern and what are not. For, certainly, every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that “public concern,” like “public interest,” eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen.
It is true that the right, as held by the Court, may be asserted by any citizen. But in the face of the unclarity of the meaning of matters of public concern, every time the right to freedom of information is asserted now, judicial intervention can become necessary. Clearly what is needed is balance. The challenge is how to achieve this balance especially in the face of the recognized right of “executive privilege” which has also been the subject of much dispute in recent months.
17 October 2011

Saturday, October 1, 2011


The controversy between the Supreme Court and the Budget Office over the unused appropriations for the judiciary is about fiscal autonomy. Fiscal autonomy is a guarantee given by the Constitution to certain units of the government. It is intended as a guarantee of separation of powers and of independence from political agencies. The units that have been given fiscal autonomy are the Constitutional Commissions, the Ombudsman and the judiciary. The language used in the grant of the guarantee is almost identical for all three units. The Supreme Court jealously guards fiscal autonomy.
The guarantee for the Constitutional Commissions says, “The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.” For the Ombudsman it says, “The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.” The provision for the judiciary has an addition not found in the other two: “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.”
There is a similar provision for local governments although the phrase fiscal autonomy is not used. It says: “Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” The Supreme Court has had the opportunity to explain the meaning of the phrase “automatically and regularly released.” When President Ramos issued an executive order saying that“Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld,” this was challenged as an unconstitutional restriction on local autonomy.
The Supreme Court ruled: “Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means ‘something held back or withheld, often temporarily.’ Hence, the ‘temporary’ nature of the retention by the national government does not matter. Any retention is prohibited.”
The phrase “automatically and regularly released” was also a subject of contention between the Civil Service Commission and the Budget Secretary. The controversy involved the “no report, no release” policy imposed by the Budget Office on funds appropriated for the Civil Service Commission.
In resolving the issue the Court harked back to an earlier decision on the meaning of “automatic release” for local government units relying on the dictionary meaning of “automatic.” “Webster’s Third New International Dictionary defines ‘automatic’ as ‘involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.’ Further, the word ‘automatically’ is defined as ‘in an automatic manner: without thought or conscious intention.’ Being ‘automatic,’ thus, connotes something mechanical, spontaneous and perfunctory. As such the LGUs are not required to perform any act to receive the ‘just share’ accruing to them from the national coffers. x x x”
The Court concluded: “By parity of construction, ‘automatic release’ of approved annual appropriations to petitioner, a constitutional commission which is vested with fiscal autonomy, should thus be construed to mean that no condition to fund releases to it may be imposed.”
The Budget Commission tried to wiggle out of its predicament claiming that the “no report, no release” was due to a shortfall in revenues. The Court said that such shortfall does not justify compliance with the Constitution and that “[a]n interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory.”
Having said all that, one might ask how the current controversy on unspent funds of the judiciary will be resolved. I anticipate that the resolution will be along the lines of a 1993 Supreme Court Resolution on the judiciary’s fiscal autonomy. The Resolution says: “The Supreme Court may submit to the Department of Budget and Management reports of operation and income, current plantilla of personnel, work and financial plans and similar reports only for recording purposes. The submission thereof concerning funds previously released shall not be a condition precedent for subsequent fund releases.”
Related to all this, of course, is the issue of impoundment, that is, the holding unspent of appropriated funds. It is something done by Presidents as a form of “executive veto.” It was first used by Thomas Jefferson. There is no provision in the Constitution on the subject. The concept has come up in local jurisprudence but the Supreme Court has heretofore refrained from passing judgment on its constitutionality.
Finally, like it or not, the Constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. We know who will referee the controversy between the Supreme Court and the Budget Office.
3 October 2011