Saturday, October 27, 2012

ABOUT DYNASTIES



About Political Dynasties
There is a rising clamor for a law against political dynasties.  Without a law implementing the constitutional prohibition, the end of dynasties is nothing more than a consummation devoutly to be wished.  This, in fact , is true of practically all the provisions in Article II’s Declaration Principles and State Policies.  They need implementing law.  The big question is what are the chances that political dynasty bill can become law? 
This is not a novel question.  The constitutional provision itself was a subject  of debate in the 1987 Constitutional Commission.  The political dynasty provision was authored by Commissioner Nolledo.  A similar provision had already been rejected under the article on Local Governments but Nolledo entertained the hope that the Constitutional Commission might still approve one 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 thrust of the constitutional provision is to impose on the state the obligation of guaranteeing equal access to public office.  Although the provision speaks in terms of service, it is meant to be  a blow in the direction of democratizing political power. Commissioner Nolledo had the support of   Commissioner (now Comelec Commissioner Sarmiento) who explained the rationale of the provision thus:
“By including this provision, we widen the opportunities of competent, young and promising poor candidates to occupy important positions in the government.  While it is true we have government officials who have ascended to power despite accident of birth, they are exceptions to the general rule.  The economic standing of these officials would show that they come from powerful clans with vast economic fortunes.”
But strong contrary views were also expressed.  Commissioner Monsod’s was brief: “I just want to make the motion to delete Section 20 [now 26], first, because it has been argued and debated fully in the Article on Local Governments and this body has already made a decision on the same point; and, secondly, for the reasons I have stated, that I do not think we should curtail the right of the people to a free choice on who their political leader should be.”
Commissioner Ople for his part argued that what were called dynasties were in fact not the causes of social evils but the result of socio-economic imbalances.  He concluded that the Commission should address these socio economic imbalances instead.  
He also noted that, even under present conditions, less privileged citizens have succeeded in establishing themselves politically.  He added: “In my own province there are no longer any dynasties.  There are other provinces where you find the word ‘dynasty’ probably misapplied to a distinguished family, let us say, to the Cojuangco and Aquino family in Tarlac or the Padilla family in Manila and Pangasinan, or the Rodrigo family in Bulacan, or the Laurel family in Batangas, and the Sumulong-Cojuangco family in Rizal, the Calderon family in Nueva Vizcaya, and Peps Bengzon has been calling my attention to the existence now of a Bengzon line of political office holders in Pangasinan.  This is not to say, Mr. Presiding Officer, that the Philippine society has been immobile.  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.  I can sympathize with Commissioner Nolledo's concern about dynasties because he comes from a province which tends to be governed by political dynasties.  Is that not right, Mr. Presiding Officer?”
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.
There is pending in the Senate, since 2011, Senate Bill 2649 authored by Senator Miriam Defensor Santiago.  Her Explanatory Note pretty much sums up the arguments expressed by others for the passage of such a bill.  But the bill still languishes unattended.  Will a constitutional amendment by referendum and plebiscite, as suggested by Chairman Brillantes, succeed in drafting a provision  that defines what political dynasty means? But amendment by initiative and referendum has had its own problems.
29 October 2012

Saturday, October 20, 2012

The RP-MILF Framework of AGreement: Part II



There was big hoopla at the signing of the Framework of Agreement between the government and the MILF last week. I found that somewhat amusing because  one of the clearest  characteristics of the Agreement is lack of clarity.  It leaves so much unsaid.  As the Agreement itself says, “The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year.” So, what did the parties really agree about beyond agreeing to continue working?
Moreover, what will be achieved by the end of the year, that is, a little over two months from now, will not yet be the peace agreement itself but the guidelines to be followed in formulating the substantive provisions of the peace agreement.  The full peace agreement will be the Basic Law formulated by Congress and approved in a plebiscite by the constituent units.  Year 2016  seems to be the target.
Let me now comment on some possible constitutional issues which need elaboration.  The “ministerial” concept has been criticized.  I have no problem with it even if I don’t know what is exactly meant by it. I guess it can mean either a Cabinet form or a parliamentary form of government.  Whatever it is, it it really make no problem because, while the Constittion specifies a presidential form of national government,  it does not have the same prescription for local governments.  We might recall that Metro Manila had a Commission form of government which was neither prescribed nor prohibited by the 1973 Constitution.
More crucial is the envisioned relationship between the central government and the Bangsamoro government.  It is called “asymmetric.”  Again I do not know what this is meant to hide.  Could it be that the Framework is just avoiding the term “associative” found in the MOA-AD of 2008?  If this is the case, we have to recall what the Supreme Court said of that relationship.  The Court rejected it as having no place in the Constitution.
Of course, the 2008 Court was referring to specific provisions of the MOA-AD as containing the “associative” principle.  We do not yet know what the current Court might say since we have not yet been told what the Framework means by “asymmetric” relationship.
Central to the formulation of the Basic Law will be the role of Congress.  It is Congress that will enact the Organic Act for the autonomous region.  The shape of Congress that will enact the Basic Law will be affected by the coming national elections.  The senatorial and congressional campaigns, especially in regions that will be affected by the desired Bangsamoro Basic Law, will have to take into consideration the sentiment of voters in those areas.
In framing the Bangsamoro Basic Law, the main guide should be the Constitution.  This is not clearly reflected in the Framework.  The Framework says that the “provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties.”  Similarly it says that the “Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.”  This seems to mean that Congress, in the formulation of the Basic Law, must accept any agreement of the parties.  This seems to make Congress a rubberstamp for what the Agreement wants.  Again, this needs clarification.
The Framework recognizes as possessing the Bangsamoro identity those “who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood” together with their “spouses and descendants,” but adding that the “freedom of choice of other indigenous peoples shall be respected.” This is the same as the provision in the MOA-AD.
Will this satisfy those who are not indigenous Moros?  Both the MOA-AD and the Framework lump together the identities of the Bangsamoro and other indigenous peoples living in Mindanao including Palawan.   More acceptable is the provision of the current Organic Act which distinguishes the Bangsamoro people, that is, those who are believers in Islam and who have retained some or all of their own social, economic, cultural, and political institutions, and other Tribal peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community.
Another contentious issue will be determination of the areas that will be part of the Bangsamoro territory.  What the Framework proposes is larger than the ARRM territory today.  This will require a plebiscite as prescribed by the Constitution.
Next there is the powerful Transition Commission.  Will the MNLF be given a role?
These are some of the potential issues already reflected in the current shape of the Framework of Agreement.  Other issues will arise from the final form of the Framework when completed at the end of next December.  Everyone will be waiting for that final Framework of Agreement.  They can either increase or diminish the volume of the current chorus of jubilation.
22 October 2012

Saturday, October 13, 2012

RP-MILF Agreement: Part I



The RP-MILF Framework of Agreement: Part I
There is much rejoicing over the Framework of Agreement reached between the Philippine Government and the MILF about achieving peace in Muslim Mindanao.  There is justification for the rejoicing mainly because we have overcome the stalemate that resulted from the rejection of the 2008 MOA-AD by the Supreme Court AND the parties have agreed to stop fighting for now.
The central issue of that 2008 failed process was the extent of the President’s power in pursuing the peace process.  That issue is still alive. If the Framework, like the MOA-AD, is challenged before the Supreme Court, once again the Supreme Court will have a big task to perform. As the prefatory statement of the Court in 2008 said, “It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive precisely to enable her to pursue the peace process effectively.”  Some of the issues that arose from the 2008 MOA-AD may also be found in whatever final form the new peace agreement will take.
The Framework of Agreement is not yet the peace agreement.  It is an agreement to work toward the formulation of the peace agreement.  The very first section of the Framework already announces the enormity of the challenge: “The Parties agree that the status quo is unacceptable and that the Bangsamoro shall be established to replace the Autonomous Region in Muslim Mindanao (ARMM). The Bangsamoro is the new autonomous political entity (NPE) referred to in the Decision Points of Principles as of April 2012.” 
The rejected status quo has its root in Article X of the 1987 Constitution, and in the Organic Act giving life to the current Autonomous Region of Muslim Mindanao (ARMM), a work of Congress.  And as the Organic Act itself says: “Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the votes cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.” 
It is clear therefore that Congress both as a statutory body and a constituent assembly will be needed in the formulation of the final form of the peace agreement. 
The Framework is an unfinished document.  As the final provision says: “The Parties commit to work further on the details of the Framework Agreement in the context of this document and complete a comprehensive agreement by the end of the year.”  What will be achieved by the end of the year, that is, by the end of next December, if at all, cannot yet be the peace agreement itself but the guidelines to be followed in formulating the substance of the peace agreement. 
The Framework itself in its present form, notwithstanding widespread jubilation, already poses some procedural challenges and hints at the substantive issues that may arise.  A major procedural part of the Framework itself will be the formation of the powerful Transition Commission.  The composition of its membership can be a delicate issue.  Will the MNLF havw a role? The Transition Commission will make the preliminary draft of the substantive changes that the Agreement proposes to achieve. 
What are the substantive issues already reflected even from the current Framework which the government may have to defend or clarify?  First, the Framework says that the form of government shall be “ministerial.”  The parties still have to clarify what this means.
The Framework says that the relation between the Bangsamoro and the central government shall be “asymmetric.”  What does this mean?  Is it different from the “associative“ relation rejected by the Court in 2008 as having no place in the Constitution?
The Framework recognizes the Bangsamoro identity of those “who at the time of conquest and colonization were considered natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent islands including Palawan, and their descendants whether of mixed or of full blood” together with their “spouses and descendants.”  But the “freedom of choice of other indigenous peoples shall be respected.”  Will those who are not indigenous Moros be happy to be identified as such?
The Framework says that the “provisions of the Bangsamoro Basic Law shall be consistent with all agreements of the Parties.”  Does this mean that Congress, in the formulation of the Basic Law, may not reject any agreement of the parties? 
The Framework says that the “Bangsamoro shall have a just and equitable share in the revenues generated through the exploration, development or utilization of natural resources obtaining in all the areas/territories, land or water, covered by and within the jurisdiction of the Bangsamoro, in accordance with the formula agreed upon by the Parties.”  Does this mean the curtailment of the power of Congress, contained in the Constitution, to determine the local government share in the proceeds of natural resources in the area?
The determination of the components of the Bangsamoro territory will surely be a contentious issue as it was in 2008.
These are some of the potential issues already reflected in the Framework today.  Will the Aquino government succeed before the end of the President’s term?
15 October 2012

Tuesday, October 9, 2012

WHAT ABOUT THE PARTY LIST SYSTEM?



What About the party list system?
Whenever I am asked what provision of the current Constitution I think should be amended, I do not say that nothing there deserves to be amended.  In fact, I would be the first to say that what we have now is by no means a perfect document.  It is a work in progress and will continue to be such for as long as the Republic lasts.  In a recent talking engagement, I was asked what three provisions of the Constitution I would like to see amended.  I gave two answers and one of them was for a serious reassessment of where the party list system has brought us.  I was not surprised when that answer received applause.  After all, it is widely publicized that the Comelec is now in the process of cleaning up the system.
The original inspiration for the introduction of this novelty into the Constitution was a fairly widespread desire to give the underprivileged sectors of society the capacity to represent themselves in the affairs of the nation.  The idea was generally accepted as valid, but the problem was how to put it into a workable formula that could produce the desired result.  Nevertheless the Constitution Commission went ahead to engraft it in the Constitution as an experiment.  The experiment has been going on for twenty five years now.  That the Comelec is now engaged in a major cleanup campaign is proof that we have not yet solved that problem.  Should we continue the experiment or end it?
The experiment started with two related concepts found in the Constitution itself: sectoral representation and party-list representation.  The first phase was sectoral representation.  “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”  How were they to be chosen? “Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation . . .” Sectoral representation lasted for nine years.  Thereafter the party-list system came into force.
Under the party list system, disadvantaged groups would still organize by sectors.  Next, they register themselves as parties, and present themselves to the electorate.  Hence, during election time, every voter casts two votes: one for a district representative and one for a party list organization. A citizen can vote for any party.  At the end of the day, the COMELEC tabulates the votes cast to determine how many votes each party or organization garnered.
In the earlier phase of the implementation of the system, only the party-list organizations which garnered at least 2% of the total votes cast for party-lists could win a seat in Congress.  Under this rule, while the party lists were entitled to 20% of the total seats the seats in Congress, the 20%  reserved for them mathematically could never be filled.  Hence, the Supreme Court declared the 2% requirement as unconstitutional and the 20% share of party list organizations as mandatory.  Now, the Comelec keeps choosing qualifiers until 20% of the total seats in Congress are filled.
The system as described seems neat enough.  But why are party-list aspirants being disqualified?
First, it is a known fact that elections cost money.  The three-term grace period given to sectoral groups was meant to enable them to build up their resources in order for them to be capable of competing in the political arena.  That was a tall order and I doubt that they succeeded in gathering enough political strength.
Second, left to struggle in weakness, they become easy prey to stronger political parties or wealthy individuals with goals of their own.  This easily results in the bastardization of the system.
Third, as pronounced by the Court, participation in the party-list system is limited to the "marginalized and underprivileged” and that the system is “a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them."  The Court laid down guidelines for the Comelec to apply in deciding which organizations qualify.  Among the guidelines was the requirement that the parties or organizations must  truly represent the marginalized and underrepresented sector. The Comelec now is finding that many aspiring organizations do not satisfy this requirement.
Moreover, the Court also ruled that party-list representatives themselves "must represent marginalized and underrepresented sectors." That is, they must have at heart the interest of the party they represent. The problem, however, is that possession of this ideological quality is not easily proved or disproved.  How do you prove, for instance, that Mikey Arroyo has or does not have at heart the interest of the party he represents?
This is not to say that there are no leaders that have arisen from the ranks of party list organizations.  A few have.  But do their number justify the continuation of the experiment?
8 October 2012

Sunday, October 7, 2012

WHAT ABOUT THE PARTY LIST SYSTEM?



Whenever I am asked what provision of the current Constitution I think should be amended, I do not say that nothing there deserves to be amended.  In fact, I would be the first to say that what we have now is by no means a perfect document.  It is a work in progress and will continue to be such for as long as the Republic lasts.  In a recent talking engagement, I was asked what three provisions of the Constitution I would like to see amended.  I gave two answers and one of them was for a serious reassessment of where the party list system has brought us.  I was not surprised when that answer received applause.  After all, it is widely publicized that the Comelec is now in the process of cleaning up the system.
The original inspiration for the introduction of this novelty into the Constitution was a fairly widespread desire to give the underprivileged sectors of society the capacity to represent themselves in the affairs of the nation.  The idea was generally accepted as valid, but the problem was how to put it into a workable formula that could produce the desired result.  Nevertheless the Constitution Commission went ahead to engraft it in the Constitution as an experiment.  The experiment has been going on for twenty five years now.  That the Comelec is now engaged in a major cleanup campaign is proof that we have not yet solved that problem.  Should we continue the experiment or end it?
The experiment started with two related concepts found in the Constitution itself: sectoral representation and party-list representation.  The first phase was sectoral representation.  “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”  How were they to be chosen? “Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation . . .” Sectoral representation lasted for nine years.  Thereafter the party-list system came into force.
Under the party list system, disadvantaged groups would still organize by sectors.  Next, they register themselves as parties, and present themselves to the electorate.  Hence, during election time, every voter casts two votes: one for a district representative and one for a party list organization. A citizen can vote for any party.  At the end of the day, the COMELEC tabulates the votes cast to determine how many votes each party or organization garnered.
In the earlier phase of the implementation of the system, only the party-list organizations which garnered at least 2% of the total votes cast for party-lists could win a seat in Congress.  Under this rule, while the party lists were entitled to 20% of the total seats the seats in Congress, the 20%  reserved for them mathematically could never be filled.  Hence, the Supreme Court declared the 2% requirement as unconstitutional and the 20% share of party list organizations as mandatory.  Now, the Comelec keeps choosing qualifiers until 20% of the total seats in Congress are filled.
The system as described seems neat enough.  But why are party-list aspirants being disqualified?
First, it is a known fact that elections cost money.  The three-term grace period given to sectoral groups was meant to enable them to build up their resources in order for them to be capable of competing in the political arena.  That was a tall order and I doubt that they succeeded in gathering enough political strength.
Second, left to struggle in weakness, they become easy prey to stronger political parties or wealthy individuals with goals of their own.  This easily results in the bastardization of the system.
Third, as pronounced by the Court, participation in the party-list system is limited to the "marginalized and underprivileged” and that the system is “a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them."  The Court laid down guidelines for the Comelec to apply in deciding which organizations qualify.  Among the guidelines was the requirement that the parties or organizations must  truly represent the marginalized and underrepresented sector. The Comelec now is finding that many aspiring organizations do not satisfy this requirement.
Moreover, the Court also ruled that party-list representatives themselves "must represent marginalized and underrepresented sectors." That is, they must have at heart the interest of the party they represent. The problem, however, is that possession of this ideological quality is not easily proved or disproved.  How do you prove, for instance, that Mikey Arroyo has or does not have at heart the interest of the party he represents?
This is not to say that there are no leaders that have arisen from the ranks of party list organizations.  A few have.  But do their number justify the continuation of the experiment?
8 October 2012

Saturday, October 6, 2012

WHAT ABOUT THE PARTY LIST SYSTEM?



Whenever I am asked what provision of the current Constitution I think should be amended, I do not say that nothing there deserves to be amended.  In fact, I would be the first to say that what we have now is by no means a perfect document.  It is a work in progress and will continue to be such for as long as the Republic lasts.  In a recent talking engagement, I was asked what three provisions of the Constitution I would like to see amended.  I gave two answers and one of them was for a serious reassessment of where the party list system has brought us.  I was not surprised when that answer received applause.  After all, it is widely publicized that the Comelec is now in the process of cleaning up the system.
The original inspiration for the introduction of this novelty into the Constitution was a fairly widespread desire to give the underprivileged sectors of society the capacity to represent themselves in the affairs of the nation.  The idea was generally accepted as valid, but the problem was how to put it into a workable formula that could produce the desired result.  Nevertheless the Constitution Commission went ahead to engraft it in the Constitution as an experiment.  The experiment has been going on for twenty five years now.  That the Comelec is now engaged in a major cleanup campaign is proof that we have not yet solved that problem.  Should we continue the experiment or end it?
The experiment started with two related concepts found in the Constitution itself: sectoral representation and party-list representation.  The first phase was sectoral representation.  “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”  How were they to be chosen? “Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation . . .” Sectoral representation lasted for nine years.  Thereafter the party-list system came into force.
Under the party list system, disadvantaged groups would still organize by sectors.  Next, they register themselves as parties, and present themselves to the electorate.  Hence, during election time, every voter casts two votes: one for a district representative and one for a party list organization. A citizen can vote for any party.  At the end of the day, the COMELEC tabulates the votes cast to determine how many votes each party or organization garnered.
In the earlier phase of the implementation of the system, only the party-list organizations which garnered at least 2% of the total votes cast for party-lists could win a seat in Congress.  Under this rule, while the party lists were entitled to 20% of the total seats the seats in Congress, the 20%  reserved for them mathematically could never be filled.  Hence, the Supreme Court declared the 2% requirement as unconstitutional and the 20% share of party list organizations as mandatory.  Now, the Comelec keeps choosing qualifiers until 20% of the total seats in Congress are filled.
The system as described seems neat enough.  But why are party-list aspirants being disqualified?
First, it is a known fact that elections cost money.  The three-term grace period given to sectoral groups was meant to enable them to build up their resources in order for them to be capable of competing in the political arena.  That was a tall order and I doubt that they succeeded in gathering enough political strength.
Second, left to struggle in weakness, they become easy prey to stronger political parties or wealthy individuals with goals of their own.  This easily results in the bastardization of the system.
Third, as pronounced by the Court, participation in the party-list system is limited to the "marginalized and underprivileged” and that the system is “a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them."  The Court laid down guidelines for the Comelec to apply in deciding which organizations qualify.  Among the guidelines was the requirement that the parties or organizations must  truly represent the marginalized and underrepresented sector. The Comelec now is finding that many aspiring organizations do not satisfy this requirement.
Moreover, the Court also ruled that party-list representatives themselves "must represent marginalized and underrepresented sectors." That is, they must have at heart the interest of the party they represent. The problem, however, is that possession of this ideological quality is not easily proved or disproved.  How do you prove, for instance, that Mikey Arroyo has or does not have at heart the interest of the party he represents?
This is not to say that there are no leaders that have arisen from the ranks of party list organizations.  A few have.  But do their number justify the continuation of the experiment?
8 October 2012

WHAT ABOUT THE PARTY LIST SYYTSM?


WHAT ABOUT THE PARTY LIST SYSTEM?


WHAT ABOUT THE PARTY LIST SYTEM?


WHAT ABOUT THE PARTY LIST SYSM?



Whenever I am asked what provision of the current Constitution I think should be amended, I do not say that nothing there deserves to be amended.  In fact, I would be the first to say that what we have now is by no means a perfect document.  It is a work in progress and will continue to be such for as long as the Republic lasts.  In a recent talking engagement, I was asked what three provisions of the Constitution I would like to see amended.  I gave two answers and one of them was for a serious reassessment of where the party list system has brought us.  I was not surprised when that answer received applause.  After all, it is widely publicized that the Comelec is now in the process of cleaning up the system.
The original inspiration for the introduction of this novelty into the Constitution was a fairly widespread desire to give the underprivileged sectors of society the capacity to represent themselves in the affairs of the nation.  The idea was generally accepted as valid, but the problem was how to put it into a workable formula that could produce the desired result.  Nevertheless the Constitution Commission went ahead to engraft it in the Constitution as an experiment.  The experiment has been going on for twenty five years now.  That the Comelec is now engaged in a major cleanup campaign is proof that we have not yet solved that problem.  Should we continue the experiment or end it?
The experiment started with two related concepts found in the Constitution itself: sectoral representation and party-list representation.  The first phase was sectoral representation.  “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”  How were they to be chosen? “Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation . . .” Sectoral representation lasted for nine years.  Thereafter the party-list system came into force.
Under the party list system, disadvantaged groups would still organize by sectors.  Next, they register themselves as parties, and present themselves to the electorate.  Hence, during election time, every voter casts two votes: one for a district representative and one for a party list organization. A citizen can vote for any party.  At the end of the day, the COMELEC tabulates the votes cast to determine how many votes each party or organization garnered.
In the earlier phase of the implementation of the system, only the party-list organizations which garnered at least 2% of the total votes cast for party-lists could win a seat in Congress.  Under this rule, while the party lists were entitled to 20% of the total seats the seats in Congress, the 20%  reserved for them mathematically could never be filled.  Hence, the Supreme Court declared the 2% requirement as unconstitutional and the 20% share of party list organizations as mandatory.  Now, the Comelec keeps choosing qualifiers until 20% of the total seats in Congress are filled.
The system as described seems neat enough.  But why are party-list aspirants being disqualified?
First, it is a known fact that elections cost money.  The three-term grace period given to sectoral groups was meant to enable them to build up their resources in order for them to be capable of competing in the political arena.  That was a tall order and I doubt that they succeeded in gathering enough political strength.
Second, left to struggle in weakness, they become easy prey to stronger political parties or wealthy individuals with goals of their own.  This easily results in the bastardization of the system.
Third, as pronounced by the Court, participation in the party-list system is limited to the "marginalized and underprivileged” and that the system is “a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them."  The Court laid down guidelines for the Comelec to apply in deciding which organizations qualify.  Among the guidelines was the requirement that the parties or organizations must  truly represent the marginalized and underrepresented sector. The Comelec now is finding that many aspiring organizations do not satisfy this requirement.
Moreover, the Court also ruled that party-list representatives themselves "must represent marginalized and underrepresented sectors." That is, they must have at heart the interest of the party they represent. The problem, however, is that possession of this ideological quality is not easily proved or disproved.  How do you prove, for instance, that Mikey Arroyo has or does not have at heart the interest of the party he represents?
This is not to say that there are no leaders that have arisen from the ranks of party list organizations.  A few have.  But do their number justify the continuation of the experiment?
8 October 2012

WHAT ABOUT THE PARTY LIST SYSTEM?


WHAT ABOUT THE PARTY LIST SYSTEM?


WHAT ABOUT THE PARTY LIST SYSTEM?



Whenever I am asked what provision of the current Constitution I think should be amended, I do not say that nothing there deserves to be amended.  In fact, I would be the first to say that what we have now is by no means a perfect document.  It is a work in progress and will continue to be such for as long as the Republic lasts.  In a recent talking engagement, I was asked what three provisions of the Constitution I would like to see amended.  I gave two answers and one of them was for a serious reassessment of where the party list system has brought us.  I was not surprised when that answer received applause.  After all, it is widely publicized that the Comelec is now in the process of cleaning up the system.
The original inspiration for the introduction of this novelty into the Constitution was a fairly widespread desire to give the underprivileged sectors of society the capacity to represent themselves in the affairs of the nation.  The idea was generally accepted as valid, but the problem was how to put it into a workable formula that could produce the desired result.  Nevertheless the Constitution Commission went ahead to engraft it in the Constitution as an experiment.  The experiment has been going on for twenty five years now.  That the Comelec is now engaged in a major cleanup campaign is proof that we have not yet solved that problem.  Should we continue the experiment or end it?
The experiment started with two related concepts found in the Constitution itself: sectoral representation and party-list representation.  The first phase was sectoral representation.  “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”  How were they to be chosen? “Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation . . .” Sectoral representation lasted for nine years.  Thereafter the party-list system came into force.
Under the party list system, disadvantaged groups would still organize by sectors.  Next, they register themselves as parties, and present themselves to the electorate.  Hence, during election time, every voter casts two votes: one for a district representative and one for a party list organization. A citizen can vote for any party.  At the end of the day, the COMELEC tabulates the votes cast to determine how many votes each party or organization garnered.
In the earlier phase of the implementation of the system, only the party-list organizations which garnered at least 2% of the total votes cast for party-lists could win a seat in Congress.  Under this rule, while the party lists were entitled to 20% of the total seats the seats in Congress, the 20%  reserved for them mathematically could never be filled.  Hence, the Supreme Court declared the 2% requirement as unconstitutional and the 20% share of party list organizations as mandatory.  Now, the Comelec keeps choosing qualifiers until 20% of the total seats in Congress are filled.
The system as described seems neat enough.  But why are party-list aspirants being disqualified?
First, it is a known fact that elections cost money.  The three-term grace period given to sectoral groups was meant to enable them to build up their resources in order for them to be capable of competing in the political arena.  That was a tall order and I doubt that they succeeded in gathering enough political strength.
Second, left to struggle in weakness, they become easy prey to stronger political parties or wealthy individuals with goals of their own.  This easily results in the bastardization of the system.
Third, as pronounced by the Court, participation in the party-list system is limited to the "marginalized and underprivileged” and that the system is “a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them."  The Court laid down guidelines for the Comelec to apply in deciding which organizations qualify.  Among the guidelines was the requirement that the parties or organizations must  truly represent the marginalized and underrepresented sector. The Comelec now is finding that many aspiring organizations do not satisfy this requirement.
Moreover, the Court also ruled that party-list representatives themselves "must represent marginalized and underrepresented sectors." That is, they must have at heart the interest of the party they represent. The problem, however, is that possession of this ideological quality is not easily proved or disproved.  How do you prove, for instance, that Mikey Arroyo has or does not have at heart the interest of the party he represents?
This is not to say that there are no leaders that have arisen from the ranks of party list organizations.  A few have.  But do their number justify the continuation of the experiment?
8 October 2012

Monday, October 1, 2012

ABOUT COMMENTS ON MY BLOGS



I have been getting a fair share of comments on my columns and blogs about the RH Bill issue.  As one would expect, not everyone would be willing to raise me to sainthood.  Some would even consign me to the darker regions. It is interesting to note, however, that the comments are almost all anonymous, whatever that means.
At any rate, what I found touching, if that is the right word, is the comment which said: “I admire your objective take on the issue and I agree with you on most points, but please, Father, Catholics read your articles and some are confused.” 
In all fairness I should say something to those who might be getting confused
I suppose some get confused because they wonder if I am still a priest or even a Catholic loyal to Mother Church.  I can assure them I am.  Otherwise my superiors, who know me well, would be going after me with flagellation cords.  More importantly, what might also confuse some is when I analyze issues from the point of view of constitutional law. 
For me, that is inevitable. Aside from having been preaching as a priest since 1965, I have also been teaching constitutional law since 1966.  Necessarily therefore both Catholic teaching and constitutional law have become part of me.   I hold that one can agree perfectly with the official teaching of the Church and live it even if one cannot enshrine that same teaching as part of constitutional law.  It is necessary to maintain the distinction between religion and constitutional law even when adhering to both.
This duality of adherence is possible because religion and constitutional law operate in two different spheres.  Religion deals chiefly with the relation between man and God and between man and man while constitutional law, especially the Bill of Rights, deals with the relation between man and the State.
Let me illustrate this through the teaching on contraception. The teaching of the Church on contraception is found in various documents.  But Church teaching is not accepted by a vast number of people.  Persons who adhere to Humanae Vitae etc. and acting in the sphere of the relation of man to God are expected to plan their family according to the principles of the Church teaching.  But this same person should not be faulted if in the sphere of constitutional law he does not oppose a state plan that is not in accordance with Humane Vitae etcReligious liberty in the constitutional plain does not simply mean freedom to choose what to believe but also freedom to act or not to act according to one’s belief.
This is also the same with the teaching on natural law.  Confusion can also be avoided by making a distinction between the area of philosophy and that of constitutional law.
Indeed, many philosophers who have dealt with natural law agree about its basic structure.  While there may be agreement among them about the primary precepts, they often differ in the secondary conclusions that they draw. But, while the issue of whose secondary conclusion is right or wrong is central to philosophical or religious discourse, it is not the issue in constitutional discourse.  In constitutional discourse the issue is what state may do with the various philosophical secondary precepts.  It is similar to the issue of religion.  The state does not judge which religion is right or wrong. Just as the state may not prefer one religion over another or over others, so also the State may not prefer one secondary natural law principle over others.  Thus the state cannot be bound to prefer the secondary natural law conclusion that contraception is against human nature.  It simply can give everyone a smorgasbord of non-abortifacient contraceptive choices but leaving each one to decide what is good for them or not.
This brings us to the use by the State of public money for the support of family planning services.  Support for family planning is definitely a public use and public purpose.  How this is to be done is addressed to the wisdom of the State.  Again, if we must enter into the area of constitutional jurisprudence, necessity is not required to justify public expenditure.  All that is required is reasonable probability of benefit. 
The argument has sometimes been used that the use of tax money to support the goals of the RH Bill will violate the religious belief of those against the RH Bill. Since paying taxes is obligatory, so the argument goes, opponents of the RH Bill will have been forced to pay for something against their conscience. It will be hard to find support for that argument in the constitutional jurisprudence.  If we push this argument to its logical conclusion, the State can be paralyzed.  How will the State verify which money in the treasury was paid by Catholics, or by Protestants or by Muslims?  And which money  can the state use for what purpose?  The fact is that tax money, once it enters into the public treasury,  has no religious face.  It is simply money at the disposal of the State for public use.
There are also more comments based on the secular sciences.  But there are others who are in a better position to deal with them than I am.
Finally, to end on a lighter tone, the comments on my pieces can also be amusing.  One such is this one: “And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them.”  I thought I was trying to lift the burden.  But who was it who said that even the devil can quote Scripture?
24 September 2012

ABOUT COMMENTS ON MY BLOGS


ABOUT COMMENTS ON MY BLOGS



I have been getting a fair share of comments on my columns and blogs about the RH Bill issue.  As one would expect, not everyone would be willing to raise me to sainthood.  Some would even consign me to the darker regions. It is interesting to note, however, that the comments are almost all anonymous, whatever that means.
At any rate, what I found touching, if that is the right word, is the comment which said: “I admire your objective take on the issue and I agree with you on most points, but please, Father, Catholics read your articles and some are confused.” 
In all fairness I should say something to those who might be getting confused
I suppose some get confused because they wonder if I am still a priest or even a Catholic loyal to Mother Church.  I can assure them I am.  Otherwise my superiors, who know me well, would be going after me with flagellation cords.  More importantly, what might also confuse some is when I analyze issues from the point of view of constitutional law. 
For me, that is inevitable. Aside from having been preaching as a priest since 1965, I have also been teaching constitutional law since 1966.  Necessarily therefore both Catholic teaching and constitutional law have become part of me.   I hold that one can agree perfectly with the official teaching of the Church and live it even if one cannot enshrine that same teaching as part of constitutional law.  It is necessary to maintain the distinction between religion and constitutional law even when adhering to both.
This duality of adherence is possible because religion and constitutional law operate in two different spheres.  Religion deals chiefly with the relation between man and God and between man and man while constitutional law, especially the Bill of Rights, deals with the relation between man and the State.
Let me illustrate this through the teaching on contraception. The teaching of the Church on contraception is found in various documents.  But Church teaching is not accepted by a vast number of people.  Persons who adhere to Humanae Vitae etc. and acting in the sphere of the relation of man to God are expected to plan their family according to the principles of the Church teaching.  But this same person should not be faulted if in the sphere of constitutional law he does not oppose a state plan that is not in accordance with Humane Vitae etcReligious liberty in the constitutional plain does not simply mean freedom to choose what to believe but also freedom to act or not to act according to one’s belief.
This is also the same with the teaching on natural law.  Confusion can also be avoided by making a distinction between the area of philosophy and that of constitutional law.
Indeed, many philosophers who have dealt with natural law agree about its basic structure.  While there may be agreement among them about the primary precepts, they often differ in the secondary conclusions that they draw. But, while the issue of whose secondary conclusion is right or wrong is central to philosophical or religious discourse, it is not the issue in constitutional discourse.  In constitutional discourse the issue is what state may do with the various philosophical secondary precepts.  It is similar to the issue of religion.  The state does not judge which religion is right or wrong. Just as the state may not prefer one religion over another or over others, so also the State may not prefer one secondary natural law principle over others.  Thus the state cannot be bound to prefer the secondary natural law conclusion that contraception is against human nature.  It simply can give everyone a smorgasbord of non-abortifacient contraceptive choices but leaving each one to decide what is good for them or not.
This brings us to the use by the State of public money for the support of family planning services.  Support for family planning is definitely a public use and public purpose.  How this is to be done is addressed to the wisdom of the State.  Again, if we must enter into the area of constitutional jurisprudence, necessity is not required to justify public expenditure.  All that is required is reasonable probability of benefit. 
The argument has sometimes been used that the use of tax money to support the goals of the RH Bill will violate the religious belief of those against the RH Bill. Since paying taxes is obligatory, so the argument goes, opponents of the RH Bill will have been forced to pay for something against their conscience. It will be hard to find support for that argument in the constitutional jurisprudence.  If we push this argument to its logical conclusion, the State can be paralyzed.  How will the State verify which money in the treasury was paid by Catholics, or by Protestants or by Muslims?  And which money  can the state use for what purpose?  The fact is that tax money, once it enters into the public treasury,  has no religious face.  It is simply money at the disposal of the State for public use.
There are also more comments based on the secular sciences.  But there are others who are in a better position to deal with them than I am.
Finally, to end on a lighter tone, the comments on my pieces can also be amusing.  One such is this one: “And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them.”  I thought I was trying to lift the burden.  But who was it who said that even the devil can quote Scripture?
24 September 2012