Saturday, April 27, 2013


About Political Dynasties
The campaign against political dynasties is on full blast.  Nothing will come out of it.
This, in fact, is not a novel issue.  The constitutional provision on the subject was already a subject  of debate in the 1987 Constitutional Commission.  The debate started during the deliberations on the article on Local Governments when Commissioner Foz proposed the prohibition of political dynasties.  The arguments pro and con about prohibiting political dynasties were rehearsed during the brief debate. 
Briefly Foz argued that “The idea of a prohibition against the rise of political dynasties is essentially to prevent one family from controlling political power as against the democratic idea that political power should be dispersed as much as possible among our people.” 
Immediately, however, Commissioner Nativided objected saying that this would be a diminution of the power of the people to elect their governors.
Essentially that was Commissioner Monsod’s argument too saying that “we have to be very clear on what we mean and not just have a provision that can be interpreted in a very wide latitude.  I say so because this is a restrictive provision.  It excludes and it disqualifies.  We should think very hard about this before we put things in the Constitution that will deprive the people of the right to a full choice as to who should be their local leaders.”  He added: “I just want to note that the ultimate objective in cleaning the election process is to make sure that an elective office is accessible to all, whether rich or poor.  If we are going to say that in order to democratize we will have to disqualify somebody, this does not sound right.”
But Nolledo argued for prohibition saying that “If we adopt a provision against political dynasties as defined by Congress, we widen the political base or the political opportunities on the part of poor but deserving candidates to run for public office with a better chance of winning.”
In the end the Foz proposal was rejected. 
But the idea refused to die and  Commissioner Nolledo tried to revive it during the deliberation on the Declaration of Principles. Nolledo entertained the hope that the Constitutional Commission might still approve a prohibition of political dynasties because, as he said, “It seems to me that the resolution asking for a provision in the Constitution is very popular outside but does not seem to enjoy the same popularity inside the Constitutional Commission.”  He was also faintly hoping that Congress would do what the Commission would not do.  Hence his impassioned plea:  “And so I plead with the Members of the Commission to please approve this provision. . . [W]e leave it to Congress to determine the circumstances under which political dynasty is prohibited.  The Commission will not determine hard and fast rules by which political dynasty may be condemned.  But I think this is a very progressive provision and, in consulting the people, the people will like this provision.  I hope the Commission will hear the plea of the people.”
The Commission responded to his anguished plea by approving what we now have: “Section 26. The State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.”
As can be seen, it is a limp-wristed provision.  It is like most of the provisions in the Declaration of Principles.  They are not strict constitutional provisions which bind; they merely served to shorten Commission debates.  At best they invite to Congress to accept an idea and to give it substance and form. 
In 2011 Senator Miriam Defensor Santiago filed Senate Bill 2649 on political dynasties. Her Explanatory Note pretty much summed up the arguments expressed by others for the passage of such a bill.  But the bill did not get anywhere.  Will a constitutional amendment by referendum and plebiscite, as suggested by the currently disheartened Chairman Brillantes, succeed in drafting a provision  that defines what political dynasty means? But amendment by initiative and referendum has had its own problems.
Now we are at it again looking for an end to political dynasties.  In 1986 Commissioner Ople was more optimistic.  “We see lots of evidences that, in fact, people disadvantaged by the accident of birth have indeed risen through their own efforts to become successful competitors of entrenched political dynasties in their provinces and cities.”  Now, however, as new dynasties are sprouting, there is not much room for optimism. 
The argument that the electorate should be left free to decide whom to choose is not without validity.  Partly for that reason, the meaning of political dynasties has been left for Congress to define.  But since Congress is the principal playground of political dynasties, the realization of the dream that the provision on political dynasties would widen access to political opportunities, will very probably be exhaustingly long in coming.  In the end, how people vote this year and in the election years to come will determine our future.
29 April 2013

Saturday, April 20, 2013


More on the New Party List Decision
Joaquin G. Bernas, S.J.
The controversial party-list cases have been remanded by the Supreme Court to the Comelec for review.  What the Comelec is required to do is to decide two related questions:  (1) Which organizations may participate in the party list system?  (2) Who are qualified to represent the party list organizations?
My column last week was an attempt to answer the first of the above questions.  Let me summarize.  (a) The inspiration of the system is social justice understood in both the economic and political sense.  (b) Participation in the system is not limited to the sectors enumerated by the Constitution or law, i.e., “labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law.”  (c) The enumerated sectors must be economically marginalized because that is what disables them from successfully engaging in the political struggle.  (d) The national and regional organizations need not be economically marginalized but they must be politically or ideologically disadvantaged or marginalized.  (e) Traditional political parties, if they wish to participate, must renounce participation in district elections.  (f) Segments of political parties, if they wish to participate, must be separately incorporated and be independent of their original parties.
In all of this, the Comelec must be guided by what the Supreme Court has said about the common denominator of participating organizations, namely: “The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections  but they can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections.  The party-list system will be the entry point  to membership in the House of Representatives for both these non-traditional parties that could not compete in legislative district elections.” 
And that is the difficult part causing concern, because it involves the evaluation of difficult factual issues.  It is relatively easy to determine whether a sectoral party, e.g., of security guards, is economically marginalized and underrepresented and thus does not have much of a chance to win in a district election.  But if the security guards of the country band together they might win one of the seats in the 20% share of party list organizations.  The same would be the case of other sectoral parties or a combination of them.  But how does one measure the strength of non=traditional or regional parties?
The concern of some, however, is that non-traditional national or regional parties might guzzle up all of the 20% share of party-list organizations if the non-sectorals happen to have the support of moneyed individuals. Realistically, however, where are these non-traditional parties  who are so vote rich and so economically affluent as to be able to wipe out the economically marginalized and underrepresented?
The point is that the party list system was designed for groups that “cannot expect to win in legislative district elections  but can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections.”  These are the disadvantaged who wish to win but cannot win representation through district elections.  They are the beneficiaries of social justice in the 1987 Constitution which favors those who have less in life either economically or politically. 
Pluralism is a characteristic of a democracy. “To require all national and regional parties under the party-list system to represent the ‘marginalized and underrepresented’ is to deprive and exclude, by judicial fiat, ideology-based and cause-oriented parties from the party-list system. How will these ideology-based and cause-oriented parties, who cannot win in legislative district elections, participate in the electoral process if they are excluded from the party-list system? To exclude them from the party- list system is to prevent them from joining the parliamentary struggle, leaving as their only option the armed struggle.”
Moreover, I repeat my question: Where are the wealthy national or regional organizations capable of burying the sectors under an avalanche of votes?  Will the Comelec be able to uncover them?
I now come to the qualifications of a party-list representative.  This is a relatively easier puzzle for the Comelec.  A party-list representative, of course, must have the qualifications of a district representative except for the residence requirement because he or she does not represent a district.  But one must be a bona fide member of the party or organization which one seeks to represent at least 90 days before the election. In the case of sectoral parties, to be a bona fide party-list representative one must either belong to the sector represented, or have a track record of advocacy for such sector.  In other words, to represent a party of farmers, one need not be a farmer but must have a track record of advocacy for such sector.
Ultimately, however, let us remember that the party-list system was meant to be an experiment.  Next time we review the Constitution, let us take a good hard look at the results of the experiment.
22 April 2013

Sunday, April 14, 2013


The New Party List Decision
Joaquin G. Bernas, S.J.
If I approach the Supreme Court’s recent decision on the party least system by way merely of a mechanical exercise in statutory construction, I might conclude that the Court has stripped the party-list system of its soul. The party list system is not merely a restructuring the of the membership of the House of Representatives.  It is a peaceful revolutionary measure which introduces  social justice into the structure of the House. The Constituonal framers intended social justice to be the soul of the system and the latest decision has preserved that soul although giving it a reading slightly differently from the way the earlier Ang Bagong Bayani read it.
The Court’s new decision begins by saying that the party-list system has three component parts: (1) national organizations, (2) regional organizations, and (3) sectoral  organizations consisting of  “labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law.”  This enumeration is lifted out of the text of the Constitution.
When the framers were deliberating on the Constitution, they saw the generally marginalized condition of the third componet of the system  But the framers also saw that the economic sectors were not the only groups suffering marginalization and underrepresentation.  They also saw some national and regional parties as suffering this disadvantage.  Hence what they created was “a party-list system of registered national, regional, and sectoral parties or organizations.” But since the original inspiration for the party-list system were the economically disadvantaged sectors, the national and regional parties, when included in the system,  must, under the rule of eiusdem generis, also have the disadvantage of being “marginalized and underrepresented”  -- but not necessarily in the sense of being economically disadvantaged.
In the language of the ponencia itself,  “The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections  but they can garner, in nationwide elections, at least the same number of votes that winning candidates can garner in legislative district elections.  The party-list system will be the entry point  to membership in the House of Representatives for both these non-traditinal parties that could not compete in legislative district elections.” 
I do not know if we are only playing with words here, but I find this citation from the ponencia to be a good inclusive definition of the phrase “marginalized and underrepresented.”
But whence did the quality of being “marginalized and underrepresented” come from when nowhere does the phrase appear in the text of the Constitution.  It comes from the general concept of social justice under Article II of the Constitution.  The current accepted meaning of social justice in jurisprudence is that those who have less in life either economically or politically should be given more in law.  That is what the party-list system tries to do. 
The ponencia, however, also notes that, while RA 7941 mentions “marginalized and undrrepresented” in its Declaration of Policy, the body of the law itself does not explicitly require that party-list participants must all be marginalized and underrepresented.  But, to my mind, that is because making such an explicit requirement would be a superfluity considering that the party-list system was conceived precisely for the sake of the marginalized and underrepresented.
The ponencia also says that the phrase marginalized and underrepresented should refer only to those which by nature are economically marginalized. I take this to mean that the requirement of marginalization, understood in the economic sense, remains applicable to the economic sectors. After all, it is their economic condition that makes them marginalized.  Bu it does not mean that national and regional parties that are not economically marginalized may not participate even if they are also otherwise marginalized, for example, ideologically. That would be true if the Constitution limited social justice, the soul of the party list system, to economic social justice, as the 1973 Constitution did.  But the 1987 Constitution has expanded the meaning of social justice to include political justice.  It can cover not just the economically marginalized but also the politically or ideologically marginalized.  In the ponencia’s own language, “The common denominator between sectoral and non-sectoral parties is that they cannot expect to win in legislative district elections.”
When reports came out about the latest Supreme Court decision on the party-list system, the immediate reaction of some was concern that it had stripped the party-list system of its social justice soul.  What caused the concern were reports that being “marginalized and underrepresented” was no longer a requirement for participation in the party-list system.  Partly true and partly untrue.  What I understand the Supreme Court decision in its entirety as saying is that economic marginalization remains a requirement for the economic sectors but not necessarily for the national and regional parties.  For these latter what is sufficient is political or ideological marginalization, even if the ponencia prefers tp limit the word marginalization.  In this sense, the new decision is a partial departure from the decision in Ang Bagong Bayani.  Thus, social justice as the soul of the sysem remains intact.
I am sure that what I have said does not clarify everything.  But I have run out of space. Next time I shall try to answer what the Comelec will have to do with the cases remanded to it for review.
15 April 2013