BRUTAL ATTACKS ON THE FAIRWAY

Golf is supposed to be a high class game where a lot of important business deals - both government and private - are rumored to have been made. It is usually played by the rich and powerful - businessmen, politicians, government officials, top paying professionals, you name it. Even presidents find time to sneak out of their hectic and demanding schedules to play the game, such as GMA and George W. Bush no less.


But the game that is supposed to be the domain of the well-to-do, highly educated, and respected members of society has just added to its lush and well manicured fairway a new type of golfer. Nope, it is not Manny Pacquiao who, although he has earned the right to join this elite sport with his fame and money, still knows where his powerful jabs and hooks belong. A gang of club swinging brawlers.


The mayor of Maisu, Lanao Del Sur and namesake of government peace negotiating panel member, Agrarian Reform Secretary Nasser Pangandaman and his bodyguard reportedly assaulted, mauled, and beat businessman Delfin Dela Paz and his son for violating golf etiquette last Friday at the Valley Golf and Country Club in Antipolo City.


The elder Dela Paz and his 14-year old son have clearly been at the receiving end of severe mauling and beating. Interestingly, the Pangandamans are claiming that it was the Dela Pazes who initially attacked Pangandaman Jr. with an umbrella. Somehow this is hard to believe. First, unlike the Dela Pazes who immediately lodged a complaint with the police, this claim was not earlier made by the Pangandamans when they had the opportunity to do so, suggesting an afterthought. Second, a golf club could have probably done the job if indeed the elder Dela Paz attacked first. Third, the injuries sustained by the Dela Pazes and the footmarks on the elder Dela Paz's clothing suggest they were the victims rather than the assailants. If indeed the mayor was first attacked and he responded only in self-defense, the injuries sustained by the Dela Pazes were too severe. For the Dela Pazes to receive such severe injuries would mean that the mayor was severely attacked by the Dela Pazes. As it appears, however, there is no indication that Pangandaman Jr. received such severe attack.

If Mayor Pangandaman and his bodyguards were indeed the guilty parties, the implications will be serious. A mayor is the chief law enforcer of his town. He is responsible for the town's peace and order and has power to direct the police to enforce the law and arrest violators. As the town's chief executive, the mayor is entrusted with very important and serious responsibilities. Whether Mayor Pangandaman Jr. inflicted the injuries on the Dela Pazes or his bodyguards will not detract from the fact that Pangandaman Jr. failed gravely in his conduct as mayor. If he directly participated in the mauling, there is no question that he betrayed the serious responsibilities of his post. If it were only his bodyguards who did it, that will not still exonerate him because it will only show how inept he is in controlling his people and if he claims to control them, which should be the case, it will only show that he directed them to do their deplorable acts.


Also, the fact that the incident happened way beyond the borders of Masiu does not mean Pangandaman Jr. is no longer mayor or that he should no longer act conformably to his office. As mayor, he carries that title and the demands of his office wherever he goes. He is required to act responsibly and respectfully not only to his constituents, but to anyone with whom he deals with, fellow golfers included no matter how they had misbehaved. If it is true that the Dela Pazes violated golf etiquette, needless to say it is also not golf etiquette to beat and maul them. As a man entrusted with great responsibilites as mayor of his hometown, Pangandaman Jr. should have dealt with them in a civilized and amicable way. If the mayor cannot act accordingly then he does not deserve his post, and the demands of delicadeza require that he resign, plain and simple. As John F. Kennedy once said, to those to whom much has been given, much is expected.


The moment Pangandaman Jr. delivered the first blow or his bodyguards to the Dela Paz father and son - if that were the case, and there is strong indication that it was - he had lost the moral and political right to remain in office. How could a brawler mayor or a coddler of goons and thugs be expected to enforce law and order in his hometown?


Going now to the elder Pangandaman, there is prima facie indication that he was present during the mauling, although he denies it. The Dela Pazes' narration of the incident appears sincere and truthful, nothing shows that they had the motive to lie and exaggerate, and the country club report apparently shows his presence.


Secretary Pangandaman should come clean and stop denying his presence during the beating if that were the case. As the investigation will soon unfold, more witnesses will surface and give detailed account of the incident. This is not something that happened in a secluded place where only those involved were present. Unless witnesses are cowed into silence there will be others who must have seen what happened and who were present.


If the investigation ultimately reveals that the peace negotiator was present and did nothing to stop the brutal attacks - there were two instances of it, it was reported - Secretary Pangandaman's credibility as a cabinet secretary, let alone as peace negotiator, will be shredded into tatters. He will likewise lose the moral and political right to remain in office.

GMA AND BLAGOJEVICH

President Gloria Macapagal-Arroyo (GMA) and Illinois Gov. Rod Blagojevich have something in common. They are both plagued by scandals involving serious questions about their honesty and integrity as public servants, and the high public offices they hold are – make that was for GMA – threatened by impeachment.

To those who do not know Blagojevich (pronounced as Blah-go-ye-vitch), he is the embattled governor of the US State of Illinois who is under investigation by the US Department of Justice (DOJ) for allegedly selling the vacated senatorial seat of US President-elect Barack Obama. According to the DOJ charges, Blagojevich – who by Illinois law is authorized as governor to fill the Senate seat vacated by Obama – was engaged in a “pay-to-play” scheme by seeking monetary consideration or a position in the Obama administration in exchange for appointing someone to the Senate seat.

Blagojevich’s scheme was foiled by DOJ Special Prosecutor Patrick Fitzgerald and his team after they decided they’ve heard enough of the taped conversations between the governor and contenders for the position, allegedly revealing the nefarious horse-trading. This reminds us of the infamous “Hello, Garci” tapes when GMA was caught talking on the telephone to then Comelec Commissioner Virgilio Garcilliano about her votes, during the height of the 2004 presidential elections.

The “Hello, Garci” incident, the fertilizer fund scam, and what retired Supreme Court Justice Isagani Cruz calls the malodorous NBN-ZTE deal, among others, have steered GMA’s presidency into perilous waters by being constantly threatened with impeachment.

As we all know, of course, these impeachment attempts have died as fast as they have been resuscitated, and there’s no telling that the remaining year of GMA’s presidency will no longer be haunted by another impeachment, if only to show contempt for her.

The specter of removal from office also looms big against Blagojevich as the Illinois legislature deliberates on the impeachment complaint against him.

Just like GMA, Blagojevich remains unfazed by the popular calls for his resignation by declaring in no uncertain terms that mere charges are not enough to make him step down from office. Perhaps GMA could get Blagojevich’s veteran criminal lawyer Ed Genson, who confidently dismissed the accusations against his client by saying that Blagojevich and others caught on tape with him were merely talking. Nothing wrong there, he said.

Both GMA and Blagojevich have what we in the vernacular call, “makapal na pagmumukha.” The two have conveniently remained insensitive to public outrage by clinging tightly to their lofty, but scandal-ridden posts. That GMA would take such a stance is no surprise, however, for it is a known and unfortunate reality of Philippine politics that no public official voluntarily yields his or her office even in the face of grave scandals; in fact even when there is a court order to vacate the prized office.

But Blagojevich comes as a surprise. American politics is rich with examples of disgraced public officials willingly surrendering their offices even as the charges of wrongdoing against them have yet to be tried or even filed in court. Just recently New York Gov. Eliot Spitzer resigned in the wake of accusations that he had patronized a prostitution service. Blagojevich, it seems, has learned the Filipino politician’s shameless stubbornness of staying in power.

The similarities between GMA and Blagojevich will soon fork into differences. While the prospect of GMA facing prosecution remains uncertain after she steps down from office, there is certainty that Blagojevich will soon confront Fitzgerald in federal court, who will undoubtedly prosecute him as zealously as he did Vice Pres. Dick Cheney’s top aide Scooter Libby. And this is aside from his possible impeachment by the Illinois legislature that is all but bent on redeeming Illinois politics from its tarnished image, after it took the world political spotlight with the historic election to the presidency of its favorite son.

GMA is lucky to be different from Blagojevich in this respect. But it appears that she is not taking any chances by apparently orchestrating a Charter change that – although it may not really provide for term extension – might give her immunity from prosecution after she relinquishes her post in 2010.

BARRING POLITICIAN-TURNED-ACTORS FROM MAKING MOVIES

In today's Inquirer.net edition, it is reported that the Supreme Court junked the petition seeking to bar actors and actresses elected to public office from appearing in movies and television shows. The petition was based on the Local Government Code's provision prohibiting governors, city and municipal mayors from practicing their profession or engaging in any occupation other than the exercise of their functions as local chief executives.

It is still early, however, for politician-turned-actors and actresses to call for a celebration. The petition filed by the political action party Social Justice Society (SJS) was dismissed not because the Supreme Court disagreed that elected showbiz personalities should not appear on the silver screen, but because the remedy chosen was defective.

The SJS initiated an action for declaratory relief before a Manila Regional Trial Court against Batangas Gov. Vilma Santos-Recto, Sen. Lito Lapid and former Parañaque Mayor Joey Marquez. A declaratory relief is an action initiated by a party interested under a deed, will, contract, or other written instrument, or whose rights are affected by a statute or government regulation, to interpret or determine the validity of such written instruments or law and declare the rights and duties of the parties under such instruments or regulation.

In other words, this remedy is available if a person affected by a legal instrument or law wants the court to interpret or determine the validity such instrument or law, and to find out what his or her legal rights are. A crucial requirement for this type of remedy is the presence of an actual controversy, meaning the person seeking relief must be in imminent danger of suffering an actual loss or invasion of his or her rights. It cannot be a mere apprehension of a future loss or violation of rights that is remote and unsubstantive.

The Supreme Court ruled that SJS failed to show the presence of such imminent loss or injury requirement to confer it the legal standing to file the case in court. There was a yet no legal controversy to speak of that will trigger the judicial mechanism.

Perhaps the courts would be more willing to entertain a suit premised on the aforecited Local Government Code provision if a voter-resident of Batangas, for example, would file a petition for prohibition to prevent Governor Santos-Recto from making a movie, the filming of which is already ongoing or about to commence. The petitioner could claim that as a voter-resident of Batangas, he or she is being denied of the service of the governor by engaging in an occupation or profession other than the exercise of her functions as chief executive of the province as required by law.

While the claimed loss here would be generalized in the sense that it cannot be quantified on an individual or personal level, it could be asserted as a denial of the sevices (consisting of the time and attention) that the governor is supposed to provide to the province and ultimately to her constituents. Her constituents are entitled as a matter of law to her time and attention as chief executive of the province. It would not be a stretch of the imagination to say that a public functionary is an employee of the people from whose taxes his salaries are derived, and every employer is entitled to have his or her employees devote their time to work. A less than full devotion of a public functionary's time to her duties would be stealing time from her constituents.

All we need is the proper timing to institute the appropriate legal action so that the meaning of this important provision of the Local Government Code, as they relate to showbiz politicians or even other professionals, is finally settled by the High Court.

THE DEATH OF CARP

On Wednesday, farmers across the nation mourned as their elected representatives in Congress delivered the death blow to the Comprehensive Agrarian Reform Program (CARP) by excluding mandatory land acquisition from its coverage, even as Congress extended it for another six months after the law creating it expires on June 30 next year.

In 1988, under the Aquino Administration, the post-Marcos Congress passed into law Republic Act 6657, otherwise known as the Comprehensive Agrarian Reform Law. CARP, as the program implementing the law was later on known, provided two modes of land acquisition: (1) compulsory land acquisition and (2) voluntary acquisition, through the Voluntary Land Transfer (VLT) and Voluntary Offer to Sell (VOS) schemes.

All proponents of CARP agree that compulsory land acquisition – and the concomitant distribution of acquired lands – is the heart and soul of the law. But with its removal Congress effectively handed down a death verdict. As Christian Monsod, counsel for farmers’ group Task Force Mapalad and former Comelec chairman, pointedly asked, “If you take out this mode, who will volunteer to distribute lands?”

By extending CARP for six months, hence preventing its early demise, congressional leaders would like to appear genuinely interested in preventing the program from lapsing into oblivion. But at the same time, however, they have served their ulterior motive to kill the program by removing the most politically-charged, but very important mandatory land acquisition provision of the law that could only truly make it a land reform legislation.

To be sure, CARP is not as revolutionary as the left would like it to be, but the compulsory acquisition of covered lands – aside from eliciting not only a few howls from the landed elite, but all kinds of serious opposition that even resulted in the lost of lives in some rural communities – has benefited several farmers already.

Based on Department of Agrarian Reform (DAR) records, nearly six million hectares have been distributed to farmer-beneficiaries since the law came into effect. And according to Monsod, 640,000 hectares of the remaining 1.3 million yet to be distributed private agricultural lands are on the pipeline for distribution under the compulsory acquisition mode.

It is also a fact that CARP suffered from many setbacks. To cite just an example, wealthy landowners have found a way under the law itself to keep their massive landholdings by converting them out of coverage into corporate farms or, in complicity with Municipal Agrarian Reform Officers and Barangay Agrarian Reform Councils, unscrupulous ones are able to parcel out the lands to their children and even unrelated persons or dummies under the law’s three-hectare retention limit for every child. This is so despite the fact that said children are not directly tilling the parcels retained for them or managing them for farm purposes, as required by law.

A corollary aspect of land reform that needs to be addressed by government if it is serious in making land reform a success is the devotion of funds for support services, such as the development of farm-to-market roads, post-harvest facilities, potable water systems, and solar dryers.

Despite the worn out pronouncements from the government and politicians to provide these support services in a comprehensive agrarian reform program, our agricultural practices still remain largely antiquated. When I visited the predominantly farming city of Stockton in California last year, I was amazed by its advances in farming, which is highly mechanized resulting in efficiency and increased productivity. Most of the farms I saw along the road have their own processing and packaging plants for their produce. Of course the reliable roads that facilitate the transport of produce are a given.

Congressmen who strongly backed the moratorium on compulsory land acquisition are saying that CARP has not succeeded in its mandate. They claim that there is a need to review the law because it makes no sense to extend something that has not worked, hence the token extension.

Some of these congressmen, such as House Speaker Prospero Nograles is batting for corporate farming. Apparently, the argument is that with a three-hectare award to beneficiaries under CARP – smallholder farming – agricultural success that will jumpstart industrialization has not been realized. Landed lawmakers, like Sen. Juan Miguel Zubiri, are also blaming farmers for the failure of CARP by selling the farms awarded to them.

In rebuttal to Nograles’s argument, UP School of Labor and Industrial Relations professor Dr. Reneo Ofreneo cited a World Bank study which revealed that large-scale farming – which was tried in China (through its farm collectivization program), in Sub-Saharan Africa, India and Indonesia – has proven unsustainable compared to smallholder farming.

A study prepared by Saturnino Borras, Jr., Mary Ann Manahan, and Eduardo Tadem, which appeared in Philippine Daily Inquirer on July 5, 2008, showed that government has been lackluster in funding CARP and in fact, had mostly relied on Official Development Assistance (ODA), which is funding from foreign institutions. With the insufficiency of funding, farmer-beneficiaries are deprived of necessary support for successful farming, making the sale of their lands to commercial developers a palatable proposition.

For whatever its faults, CARP is a substantial step in land reform, especially its compulsory land acquisition and distribution scheme that made it possible for farmers to acquire the lands they till. It is readily apparent that those who oppose this are the landed elite who want to perpetuate the feudalist system of landholding or are driven by greed to retain their huge landholdings for huge profits while the farmers remain in bondage breaking their backs to produce food for our tables – a condition that will perpetuate the social unrest that has spawned in large part rebellious discontent against the government in the countryside.

HOUSE'S CHA-CHA MOVE: A "JUSTICIABLE CONTROVERSY" ?

In law school we were taught that before a court will entertain a case the parties must present before it a "justiciable controversy." We have heard our esteemed lawmakers use this seemingly esoteric legal concept in the ongoing debate on Charter change, particularly on the issue of whether Congress should vote jointly or separately in proposing amendments to the Constitution.

For those of you who have been closely following the Cha-cha debate, i'm sure you must have heard by now that Congressman Adam Jala of Bohol filed a petition before the Supreme Court to rule on whether Congress should vote jointly or separately. The petition was junked by the Supreme Court for being premature; in short, for lack of a justiciable controversy.

According to Camarines Sur Congessman Luis Villafuerte, the resolution he is circulating in the House to convene Congress into a constituent assembly is intended to create a justiciable controversy so that the Supreme Court may put an end to the debate on joint or separate voting.

Without going into the merits of the congressman's claim, let us try to understand what a justiciable controversy is and find out if the ongoing Cha-cha moves in the House creates such a controversy. In the words of the Supreme Court, a case is said to present a justiciable controversy if there is "a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute." This principle of justiciable controversy, which is also called the "case or controversy" requirement, is actually a limitation on the power of the courts. Courts are not allowed to give an advisory opinion; one cannot just go to the courts and ask them to give their legal opinion on a particular issue, unless there is an actual case or controversy.

Corollary to this principle are the concepts of "ripeness" and "mootness." Courts will not entertain claims before they have been developed or before they are "ripe" for adjudication. In other words while they are still premature. An example is the case of a questionable bill passed by Congress that has not yet been signed into law. No matter how legally objectionable the bill is unless it becomes a law, no one can question its legality. Likewise, courts will not try a claim if it has already been resolved or has become moot or academic. In the same example, if the objectionable bill becomes a law but is later on repealed, no case questioning it will be entertained by the courts anymore or any pending case will be dismissed.

At present, Cha-cha proponents in the House are gathering the necessary signatures - at least 196, which is three-fourths of the House and Senate membership - to support the resolution to convene Congress into a constituent assembly. In the wake of a Senate rejection of a constituent assembly approval and adoption of the resolution by the House may probably create a justiciable controversy that will warrant bringing a case before the Supreme Court. There will now be assertion of opposite legal claims, with the House saying Congress has just been transformed into a constituent assembly and that the Senate must join it to consider amendments to the Constitution. Refusal by the Senate, which is expected given its contra-resolution, would give ground for the House to bring the matter to the Supreme Court through a mandamus action (a legal remedy to compel a governmental body to perform an act - join the House in joint session in this case - which the law specifically enjoins as a duty). The House will argue that with the passage of the joint session resolution, the Senate became duty-bound to join it in considering Charter changes.

The Senate, on the other hand, may institute an action for prohibition, which is a legal remedy to prevent a governmental body or official from undertaking a particular course of action alleged to be in violation of law. It will claim that the House's resolution is unconstitutional for violating the bicameral nature of Congress (by convening a constituent assembly without the Senate's consent or participation) and should be enjoined from proceeding with its move to propose amendments to the Constitution.

The House will claim that the Senate is shirking from its constitutional duty, while the Senate will claim that the House overstepped its boundaries and arrogated unto itself the sole authority to propose amendments. This clearly presents a justiciable controversy and it becomes the duty of the Supreme Court to step in and resolve the debate once its jurisdiction is invoked by any interested party.

Right now it is still premature to file any petition before the Supreme Court because everything is still preparatory, atleast in so far as the House is concerned in terms of convening Congress into a constituent assembly. There is as yet to be any official act until the pertinent resolution is filed and adopted. The unanimous Senate resolution rejecting joint session and joint voting will neither create the justiciable controversy, because by itself there is no conflict to speak of until a contrary action is taken by the House in the sense already mentioned.

Even after the recently concluded massive rally against Charter change, it still remains to be seen if the House will dampen down its obsession with amending the constitution. In the meantime let us wait and see what happens in the days to come.

DESPERATE CHA-CHA MOVES

The saying "desperate men make desperate moves" is a fitting description of House administration party members in their hurried attempt to force a Charter change before 2010 via a constituent assembly.

As everybody knows by now, KAMPI solons - led by its leader in the House Camarines Sur Rep. Luis Villafuerte - are trying to generate the magic 196 votes in support of their resolution that will convene Congress into a constituent assembly. This is based on their distorted view that one of the allowable modes of amending the Constitution, which is upon a three-fourths vote of all the members of Congress, could only be done in a constituent assembly with both houses of Congress voting jointly. Under this view 196 would be three fourths of both the Senate and House membership.

The clear intent of this is to outvote the Senate by, in the words of Fr. Joaquin Bernas, drowning it in a sea of House votes. By insisting on a constituent assembly (which is aptly abbreviated as "con-ass" - translated as conning of the Senate and the people by ass#&?% ! . . . you know what I mean) the pro-cha-cha solons are paving the way for a joint session by both houses of Congress and, consequently, joint voting where the Senate will likely lose.

The Senate, of course, will not take things sitting down. Whether you call it ego, institutional pride, or adherance to the rule of law, this time the Senate is well within its right to assert its constitutional authority as participant to a Charter change in passing a unanimous resolution rejecting the House's con-ass caper.

In their desperate quest for a Charter change, administration lawmakers have made a serious miscalculation and grave misreading of constitutional procedures. The ridiculous attempt to ease out the Senate in the decision to convene Congress into a constituent assembly is not only bad for the Senate's pride, it is also a flagrant disregard of the manner by which a bicameral Congress goes about its business.

I find it hard to understand how the House could possibly convene both houses of Congress into a constituent assembly by simply circulating a resolution from its members and obtaining 196 votes or more. Whether this effort will include signatures from sympathetic senators is an assault on understanding simply because a House resolution is a House resolution, that must go through its own channels in the Lower House.

The plan to outvote the Senate in a joint voting scheme will only be possible if the latter is willing to come and join the House in a joint session. For this to happen, someone in the Senate must file a resolution for this purpose or adopt the House's resolution, which will be debated and voted upon by the Senate's whole membership. As it is, the Senate had already formally expressed its unwillingness to convene with the House in joint session.

For a better understanding of the constitutional mechanisms involved, the Constitution provides that it can only be amended by either (1) Congress, upon a vote of three-fourths of all its members or (2) a constitutional convention. It is entirely within the discretion of Congress as to what mode to adopt. If it choses a constitutional convention it must pass a law to this effect. If it choses to propose the changes by itself, which is the first mode, the three-fourth vote is required to carry the changes.

The debate now is how will the first mode be carried out. According to Congressman Villafuerte Congress must convene into a constituent assembly. But there is another question to this: how will Congress convene into a constituent assembly? The congressman answers this by filing a resolution to be supported by atleast three-fourths of all the members of both the House and Senate. Take note that this resolution is only for the purpose of convening Congress into a constituent assembly and is not about the actual consideration of amendments yet. As already discussed, this proposition is ridiculous and disregards established legislative procedures.

In addition to what has already been mentioned, the three-fourths vote has nothing to do with the convening of Congress into a constituent assembly as nowhere is this provided in the Constitution. What the Constitution clearly states is that proposed amendments to or revisions of the the Constitution must be approved upon a vote of three-fourths of all the members of Congress, should Congress undertake the job of proposing the amendments or revisions. The three-fourths vote has nothing to do with the decision to have Congress propose the amendments, but with the voting on the actual amendments or revisions.

As cited in my previous posting, Father Bernas opined that under the first mode of introducing charter change Congress can simply do it in the same fashion it does in enacting ordinary laws, consistent with its bicameral nature. In other words a congressman or senator can simply file a bill proposing amendments to the Constitution, the same will be debated and voted upon in the chamber where it was filed, then if approved will be transmitted to the other chamber for similar consideration. The only difference in this process is that the measure must be approved upon a vote of three-fourths of each chamber's members.

Father Bernas also stated that unlike under the 1935 Constitution Congress is now not required to be in joint session. It is, therefore, entirely up to Congress if it wants to convene jointly or not, but in either case the voting on any amendment will still have to be done separately by each house. Now if the Lower House wants to convene jointly, as is the case right now with its persistent push for a constituent assembly, all it must do is adopt a resolution to this effect in accordance with the ordinary legislative procedure, then transmit it to the Senate for its consideration and approval.

How the House - the KAMPI members in particular - hopes to accomplish the convening of Congress into a constituent assembly is beyond understanding. Now that the Senate has unequivocally spoken it would be the height of folly to force its hand into a joint assembly by pretending to enact a measure by itself as an act of Congress. By any stretch of the imagination, an act of one house alone cannot be the act of a bicameral Congress.

THE POLITICS OF CHARTER CHANGE

After our bitter experience with deposed President Ferdinand E. Marcos, who tinkered with the Constitution to perpetuate himself in power for 20 years, we have since been on the guard against possible attempts by succeeding presidents to stay in power beyond the term of their office.

With the ushering of the 1987 Constitution, that laid down the new structure of government to remove the vestiges of the Marcos regime, not only were the president's powers limited but its term of office as well. As it now stands, the president is limited to a six year term only with no eligibility for reelection, which tempts a president who is unwilling to relinquish power to extend his or her tenancy in Malacañang.

For fear of another Marcosian era - characterized by prolonged stay in power, totalitarian rule, abuse of authority, cronyism and corruption - attempts by a sitting president to amend the Constitution are always met with stiff opposition. Another reason is the desire for fresh leadership, especially if the incumbent has lost the trust and confidence of the people, as in the case of Pres. Gloria Macapagal-Arroyo whose popularity has nosedived in greater depths after scandals in her adminstration have exploded one after the other.

Now that amendments to the Constitution or Charter change (Cha-cha) are being pushed again by the administration and seriously considered by the House of Representatives, oppositions thereto have predictably been mounted anew. No matter how hard administration officials and legislators insist that the changes they want to introduce concern only the economic provisions of the Constitution and have nothing to do with term extensions, the opposition does not buy it.

Whatever motives the cha-cha proponents have one thing for sure is looming on the horizon. There will be political and legal battles that will soon be waged from the halls of Congress to the chamber of the Supreme Court. One of the most strategic issues that is already taking form is the manner of introducing changes to the Constitution. Cha-cha proponents seem to favor a Constituent Assembly (Con-ass) where amendments will be made by Congress upon a vote of three-fourth of all its members. Even among proponents of this mode, however, there is disagreement as to the manner of voting, with the president's party mates calling for a joint voting by both houses of Congress while others calling for separate voting.

Administration congressmen's insistence on joint voting, being led by Camarines Sur Rep. Luis Villafuerte, is understandable from a tactical point. The Lower House's huge membership of 238 could easily outvote that of the Senate, majority of whose members are known to favor a Constitutional Convention. It is reported that Congressman Villafuerte had already gathered 167 votes to support the convening of a Con-ass - which is just 29 votes short of the required 196 votes to meet the three-fourths Constitutional requirement if Congress were to vote jointly.

But constitutional law expert Fr. Joaquin Bernas does not agree with the concept of joint voting. He believes that the Constitution does not prescribe such a procedure because the structure of Congress is bicameral in nature, with its division into a House of Representatives and a Senate. Except when expressly provided by the Constitution, a bicameral legislature does not vote jointly as this is the essence of bicameralism. Father Bernas opines that a Charter change by Congress is not one of the instances where the Constitution allows joint voting.

After all is said and done, however, the issue will ultimately have to be resolved by the Supreme Court. In this battleground not only is the legal aspect seen as the battle to be waged, but the political as well; in fact, Cha-cha proponents may even see this latter aspect as the more important of the two. Enter the Supreme Court appointments.

Without necessarily suggesting that the administration will influence the outcome of voting in the Supreme Court if and when the issue on Cha-cha is brought before it, Cha-cha proponents may wait for a favorable moment in bringing the issue before the High Court. With a chance to fill almost half of the Court's membership next year, President Macapagal-Arroyo might appoint nominees who share the adminstration's view of joint voting. This could become a vetting criterion among possible nominees to the Supreme Court. The Judicial and Bar Council, as the body tasked to recommend nominees to the Supreme Court, could very well become part of the theater of war.

THE PACMAN RULES

I know it has nothing to do about politics or law, but the sensational victory of pound-for-pound champion Manny "Pacman" Pacquiao against famed Golden Boy boxer Oscar Dela Hoya is just a story too hard to resist. As everybody knows by now, Pacquiao forced Dela Hoya to capitulate at the end of 8th round after the latter got a good measure of beating from the Gen-San pugilist.

Once again Pacquiao has proven them all wrong - the boxing analysts, I mean. After the brokered fight between Pacquiao and Dela Hoya was announced, not a few have expressed reservations about a Pacquiao victory. Our very own Recah Trinidad, a well respected sports commentator in the Philippines, opined that Pacquiao should knockout Dela Hoya or the Golden Boy will steal a victory by points. Renowed boxing trainer Angelo Dundee (who has trained boxing greats like Muhammad Ali, Sugar Ray Leonard, and Geroge Foreman), hired by Dela Hoya as a technical adviser, said before the fight that Dela Hoya has the perfect style to beat Pacquiao.

Some of my friends, self-styled boxing pundits - if you will, expressed fears that a Pacquiao victory hangs on the balance. And it is not a far fetch worry, by the way, considering that Dela Hoya has reach and height advantage, not to mention that Pacquiao had to go up by more than 10 pounds in weight just to qualify for the welterweight category.

But as history would have it, Pacquiao delivered blow after blow to the seemingly befuddled Dela Hoya, vindicating Freddie Roach's claim that the Golden Boy can no longer pull the trigger. Roach really knows his man when he declared that there is no doubt Pacquiao would win the match, just like when he predicted a knockout against Diaz when many were hesistant to make such bold claims given Diaz's sterling record.

The Pacman seemed to have surprised everybody - or is it the other way around, Dela Hoya surprising everybody? - when he once again showed his mettle, ala his fight against Diaz, by surprising his opponent with his speed and power and denying him, save a few well connected punches that had many of us worried for a while, the opportunity to land real big blows that makes one a winner.

The Dela Hoya we saw in his fight against Floyd Mayweather is nowhere to be found as he failed to find a place for his fighting style against Pacquiao. His long reach did not do him any good as Pacquiao unleashed his barrage of jab and hook combinations with lightning speed that caught Dela Hoya flatfooted several times.

To my mind, Dela Hoya didn't want to take the beating that Diaz had and be floored in the end that when asked by his coach if he still wanted to continue the fight, Dela Hoya gave in easily.

Post Script: There may be a political connection after all. Whenever Pacquiao fights the nation comes to a standstill. Crime rates go down and offensives between the military and insurgents temporarily stop as everybody becomes glued to his fight, all cheering as one - whether soldiers, communist rebels, adminstration or opposition politicians, rich or poor, law abiding or not. This may be Pacquiao's lasting legacy: uniting the Filipinos even momentarily.

DIRE ECONOMIC PROGNOSIS

As the US economy - which is now officially in a recession - continues to take a plunge in the wake of the US financial crisis, the outlook for the Philippine economy does not appear very encouraging as well with a grim forecast of a slowdown in the coming year.

Economists predict that the Philippine economy will be hit hard by next year as exports continue to decline and the budget deficit widens. They say that even OFW remittances will decline as more companies are cutting jobs worldwide.

To gain a perspective of what is happening with the world economy, let us take a look at the root of the problem that is rooted in the US financial crisis. For this purpose I am posting my article published in Sunstar Pampanga on October 7 and 9, entitled: Understanding the US Financial Crisis:

We must have heard by now the ongoing financial crisis in the United States with the unfolding drama of once thought to be financially impregnable, multimillion-dollar companies collapsing, such as investment giant Lehman Brothers, Bear Stearns, government sponsored entities Fannie Mae and Freddie Mac, world’s biggest insurer AIG, Washington Mutual and recently, Wachovia.

To address this growing crisis, U.S. President George W. Bush has just signed a modified bailout plan to the whopping tune of $700 billion which his administration hopes will resuscitate the dying financial market and prevent the U.S. economy from spiraling down.

Reading and listening to the news reports about this crisis could prove very dizzying, what with the complex concepts and jargons of the world of finance that played significant roles in this problem. Terms such as mortgage backed securities, collateralized debt obligations, asset backed securities, credit default swaps, etc., could prove very daunting for the unitiated like me to understand.

To understand the undelying issues is to understand the news. This is an attempt to explain the uderlying causes of the U.S. financial crisis – after an excruciating research and study of the financial gobbledygook – which threatens not only the economy of the continental U.S. but of the world as well, given the magnitude of the investments in U.S. dollars of huge and several non-U.S. companies including sovereign investors.

The problem started with the housing bubble in the US where thousands of new homes have been built over a span of a few years and many have acquired housing loans to buy new homes. Lower interest rates and the availability of cheap money have driven the mad rush to build more and more houses which resulted in the supply overwhelming demand.

In a typical housing loan a lender will provide the money that the homebuyer will use to purchase a house. To protect the lender against failure by the homebuyer in paying the loan a contract of mortgage will be created whereby the house will be foreclosed (sold to the highest bidder and the proceeds to go to the lender) in the event the homebuyer is unable to pay the loan.

Lenders have considerably relaxed lending requirements for housing loans and many extended credit even to those with spotty credit history or those with poor record of paying or questionable ability to pay their loans. These loans came to be known as subprime or junk mortgages because of the increased risk creditors face with these type of borrowers – that of not being able to pay their loans or mortgages. MBS have much to do with this practice by lenders. More on this later.

An innovation of lending practice in the US is the adjustable rate mortgage or ARM. Under this scheme the interest rate is not fixed over the life of the loan and adjusts, either higher or lower, depending on the prevailing interest rate, unlike in a fixed mortgage loan where the interest rate is locked-in for the duration of the loan.

Many homebuyers with poor ability to pay have been enticed by lenders to take the ARM type of loans with so-called teaser rates where the introductory interest rate is low, thus resulting in lower monthly payments of their loans. Either these homebuyers did not appreciate the risk of interest rates increasing (which will increase their monthly loan payments) or were banking on the continuing rise of housing values that will enable them to refinance (getting a new loan on the house) to cover them against rate increases.

With rising home values homeowners could get loans against their houses over and above their purchase values. For example, if a homebuyer purchases a house worth $200,000 and gets a loan for this amount to finance the purchase, after a year or two the house might be worth $250,000 for which the homebuyer/homewoner could obtain another loan (refinance) over the same house for such an amount, thereby giving the homebuyer $50,000 in the pocket. This increase in value is what is called an equity.

In essence the ARM type of loan is a gamble on the part of the homebuyer, because he or she is gambling on the possibility of a stabilizing or decreasing interest rate in the future that will maintain or decrease the monthly loan payments, as well as on the increasing value of houses.

What these types of homebuyers did not anticipate, however, is that because the supply of new homes grew to a frenzy pace versus the demand for them home values also declined rapidly. From their peak in 2006 housing values have significantly dropped by 20%.

When interest rates increased known as a reset the monthly payments of ARM homebuyers ballooned. For most American households which are on fixed paychecks such sudden increase in monthly payments could hardly be afforded. What is sad is that these distressed homebuyers could not get their houses refinanced, which is their last hope to get them through the crunch because of the drop in home values. Thus, begins the bubble burst in the housing market.

Now one might be asking, how is this housing problem related to the financial crisis? The answer lies in the structured finance instruments developed by finance-savvy investors.

Let us backtrack on the mortgages originated by lending companies to homebuyers. In the past lending companies retain the risk of non-payment when they extend loans to borrowers. But with the emergence of certain finance instruments, which we will tackle shortly, lenders have learned how to distribute the risk while at the same time generating more money to lend to borrowers.

A lending institution that generated several mortgaged loans could now sell these loans (or the right to receive payments on them) to an investment company. The proceeds from the sale of these loans will then be used by the lending institution in extending more loans to borrowers, such as prospective homebuyers. At the same time the risk of default from the loans it previously originated is passed on to the investors of these loans.

When applied to mortgaged loans on houses these sold loans are called mortgage backed securities or MBS. The investment company that purchased these loans packages them for sale in the form of bonds (debt securities) to prospective investors. Unlike traditional bonds, however, the income from the MBS flows to the investors which come from the mortgage payments of homeowners.

The ability of lending companies to transfer the credit risk to others through the instrumentality of MBS made it palatable for them to extend high risk loans to people with poor credit history, for after all they could easily dispose of these loans to willing investors.

Since holders of MBS rely on payments being made by homeowners to generate profit, the failure or inability of many such homeowners to pay the mortgages on their homes leading to foreclosures – which became a nation-wide phenomenon in the U.S. – brought financial ruin to companies that invested heavily on MBSs.

According to former Federal Reserve Chairman Alan Greenspan, the creation of MBS based on subprime mortgages or high risk mortgages is the leading source of the current U.S. financial crisis. Aside from MBS, however, there are still other species of structured finance that are being blamed for the crisis, such as the more complicated collateralized debt obligations (CDO) and credit default swaps (CDS).

The simplest definition of CDO that I came across the web is that it is an investment that is backed by debt. To better understand CDOs the mechanics of how they work must be understood. Typically an investment company raises money from several investors and issues corresponding bonds (securities) to represent the investors’ interests. The money generated are invested in the purchase of loans, bonds or other assets with collateral, hence the term collateralized. These mixture of debts is called a portfolio.

The payments that the investment company receives from the portfolio is the source of income that is distributed to investors. A lot of CDOs have invested in MBS or securities in which the underlying assets are real estate mortgages.

A credit default swap (CDS), on the other hand, is an insurance against failure by a company in the payment of its obligations. For example, if you buy P100,000 worth of bonds from a company you can purchase a CDS that will pay you P100,000 – after payment of an upfront fee and premiums at set intervals for the duration of the agreement, usually five years – in the event the company that issued the bond fails to pay its obligation in what is called an event of default.

What differs a CDS from a real insurance is that one does not need to have an economic stake in the thing insured against (insurable interest) – such as that which a homeowner has over his house in insuring it against fire or other losses. Anybody can insure another’s investment in a company or in other words speculate on that company’s gain or loss. Furthermore, CDSs are unregulated.

The problem with these CDSs is that so many companies invested and speculated on them (there are an estimated $60 trillion – yes in trillion! – worth of unregualted CDSs lying around), and what exacerbated the problem is that these CDSs covered CDOs and MBSs that are based on subprime mortgages. Now if you do the math here you will see that since housing foreclosures have become so widespread the stream of income that is supposed to flow to the holders of these complicated, three-lettered investments (CDS, CDO and MBS) has been severely stemmed.

American International Group (AIG), which is the world’s biggest insurance company, had invested heavily on these CDSs. It sold more than $400 billion worth of CDS which led to its calamitous fate.

These gigantic setbacks suffered by huge financial institutions led to a freeze in the credit markets. Lending companies, including banks, are now holding tight to their money and adamant to lend them – even to each other.

To use a now famous cliché, this seizing of the financial market has trickled down from Wall Street to Main Street (to the common Americans). With banks and other financial institutions not lending money, companies are unable to resupply their inventories that will enable them to produce or sell more with the net result of more people losing their jobs (already, the Department of Labor has reported about 159,000 Americans losing their jobs); investments are being stalled as the lack of capital holds investors from venturing or expanding their businesses; people cannot obtain loans to purchase cars, homes, get equity on their homes, and are holding tight on their cash by reining in on spending resulting in a slowdown of the economy.

Indeed, the scenario for every American has become bleak. Although some experts express reservation on the effectiveness of simply pumping money back into the US economy in reviving its financial market, hopefully the newly-signed bailout plan of the Bush Administration will stem the tide of collapse of the U.S. economy.

As already mentioned the stakes here involve not only the US economy but of the world as well. Just recently in the news, European Union member-countries are working hard to come up with a consensus on how to protect their economies. The U.S. financial or credit crisis has already affected huge banks and financial institutions in Iceland, Germany, and the U.K. Let us hope and pray that a viable solution will soon be found.

OBAMA'S TEAM OF RIVALS

The speculations are over. US President-elect Barack Obama has officially nominated former First Lady, now Senator Hilary Rodham Clinton as secretary of state. Along with her, Obama also nominated Bush's Defense Secretary Robert Gates to retain his current post, retired Marine Gen. Jim Jones as National Security Adviser, Arizona Governor Janet Napolitano as Homeland Security chief, Eric Holder as attorney general, and Susan Rice as UN ambassador.



For days, the pundits have been speculating whether Obama will give the State Department seat to Clinton, and whether the latter will accept it. Some are raising the concern that Clinton might overshadow Obama or that she might diverge from Obama about her views on foreign policy. Obama, however, laid to rest this fear by saying in no uncertain terms during the presentation of his national security team nominees that he will be the one to call the shots and expects his nominees to toe the line.



Obama's appointments confirmed his resolve to assemble a so-called team of rivals; a sign of his leaning toward bi-partisanship. It takes a great strength of character for a president to appoint people to key administration positions who have once been rivals or belong to different persuasions. Senator Clinton has been Obama's toughest opponent during the democratic primary elections, Robert Gates is Bush's top man in the Iraq war, and Jim Jones is known to have differed with Obama's view of ending the Iraq war.



By being able to draw toward him people who represent different views, Obama once again showed the convincing power and charisma that carried him in the elections. It must've taken really strong and persuasive arguments to convince Robert Gates, who represented and implemented Bush's policy on the Iraq war - policies that are diametrically opposed to those of Obama's - to become the president-elect's defense secretary. The same thing is true of Gen. Jim Jones who previously stated that it is not in the best interest of the US to put a timetable for withdrawal from Iraq, which does not agree with Obama's resolve to bring US troops home in 16 months.



It will only be a matter of time before Obama finds out how effective is his team of rivals concept. To be sure, he will not be overshadowed by any of his nominees no matter how assertive and intelligent they may be. He seems to be a man who will listen to all arguments or points of view on a given issue, then will give his final decision on the matter. I do not see the danger of any member of his team taking an independent path and shaping his or her own agenda. The problem that could possibly come out is the falling out of disappointed alter-egos whose positions or views cannot find a place in the president-elect's decisions.

WHY GMA'S IMPEACHMENT MAY NOT SUCCEED

For the fourth time the impeachment complaint against Pres. Gloria Macapagal-Arroyo has been junked, with the House justice committee voting against if for insufficiency of substance. According to Rep. Edcel Lagman, the recital of facts supporting the allegations of wrongdoing by the president was insufficient and failed to "ensnare" her.

But the spirit of pro-impeachment congressmen has not been dampened. Even as the impeachment is yet to be brought before the House plenary session - a battle they are likely to lose again given the difficulty of mustering the 80 votes needed for a favorable resolution of endorsement of the impeachment complaint - they are already eyeing the Supreme Court as the next battleground.

Once a petition is filed with the Supreme Court challenging the House's action on the impeachment, anti-impeachment solons are expected to assert the political independence of the House as a co-equal branch of government. They will claim separation of powers, political question and judicial restraint - the traditional grounds for resisting judicial review of actions by the executive and legislative branches of government.

Given the prevailing trend in our jurisprudence, however, these justifications may no longer be decisive. Francisco, Jr. v. House of Representatives, which also involved questions on an impeachment complaint before the House - making it therefore on point, not only reaffirmed but unequivocally settled the extent of judicial power to review actions of other branches of government whenever there is grave abuse of discretion that amounts to lack or excess of jurisdiction. The courts almost always find grave abuse of discretion when the challenged action violates the constitution.

As long as the petitioners are able to show that the House transgressed constitutional limitations in the manner it dealt with the impeachment complaint, there is a strong likelihood that the Supreme Court will entertain the petition. Besides, unlike the US Supreme Court which retains the discretion on whether to entertain petitions filed before it, our Supreme Court is duty-bound by the present constitution to rule on such petitions; it has not only the power but the duty to exercise such power.

The challenge that faces pro-impeachment congressmen is the way the Supreme Court justices will vote on the merits of the case. If Neri v. Senate Committee is any indication - where a divided Supreme Court upheld President Macapagal-Arroyo's executive privilege in connection with the testimony of former NEDA Director General Romulo Neri before a senate investigation committee on the controversial ZTE-NBN deal - pro-impeachment groups may not get a favorable decision. Nine of the justices who voted in favor are the president's appointees, and for a court with 15 members nine is more than enough to carry a decision.

In a recent survey by ABS-CBN of the voting patterns in the Supreme Court, over cases involving the administration, the same nine justices have voted more than 50% of the time in favor of the administration, which shows a strong tendency to favor possible anti-impeachment respondents.

Strong political and pragmatic considerations may sway a majority of the Supreme Court to vote against the viability of the impeachment. Aside from the propensity of presidential appointees to favor their benefactor, the 2010 elections are fast approaching and justices might not be willing to put the country in another exercise that will test the country's political stability while preparations for the upcoming elections are underway. The attitude might be to allow the president to finish her term since barely two years of it remains.

THE LINK BETWEEN SC APPOINTMENTS AND GMA'S TERM EXTENSION

With the rare opportunity of replacing almost half of the members of the Supreme Court next year, Pres. Gloria Macapagal-Arroyo is under suspicion of manipulating the nomination process to ensure that only those who will support her in the High Court are appointed.

Those who take this view, former House Speaker Jose De Venecia in particular, have linked this to a possible move by the president to extend her term of office beyond 2010. In anticipation of a challenge before the Supreme Court of the move to amend the Constitution and consequently, the extension of the president's term of office, they believe President Macapagal-Arroyo will only appoint justices who will cast favorable votes for her.

Contrary to what Malacañang would like us to believe, that President Macapagal-Arroyo has no plan of staying in the presidency beyond 2010, De Venecia's words deserve to be taken seriously, after all he used to be one of the president's closest political allies. Although De Venecia does not have much credibility when it comes to decrying Malacañang, this one is probably one of those instances where he deserves credit. His close association with the president for a long time makes him one of the most credible persons to know how the president thinks.

Those who still doubt the enormity of the Supreme Court's power to shape a nation's political landscape need only look a few years back when President Macapagal-Arroyo was installed into power in 2001 at the height of EDSA II, after the impeachment proceedings against then Pres. Joseph "Erap" Estrada was prematurely terminated. In an unprecedented move, the Supreme Court issued an en banc resolution authorizing then Vice President Macapgal-Arroyo to be sworn into office as president. In effect, the Supreme Court legitimized the assumption to office of Gloria Macapagal-Arroyo despite the absence of a formal petition challenging the legitimacy of Estrada's presidency before the High Court - a highly unusual move.

While the Supreme Court's action was viewed by many as proper and necessary in preventing the nation from sliding into political turmoil and chaos, many legal analysts also criticized the High Court for improperly embroiling itself into a political controversy and abandoning its constitutional role as an independent judical body that should be beyond the influence of public opinion.

In a very real sense, therefore, one could see how decisive a role the Supreme Court plays in the nation's political life. As the final arbiter of all legal controversies and the ultimate authority in declaring what is constitutionally proper, the Supreme Court is vested with very important powers in shaping the direction of the country with finality - economically and politcally - in a way that no other branches of the government can do. While congress has the sole power to legislate laws, the president may veto them and even if such veto is overriden, they remain open to challenges before the Supreme Court and could possibly be struck down for unconstitutionality. The president, on the other hand, may set the course for the nation's economic and political direction, but with the expanded powers of the Supreme Court under the Constitution to correct any act of government that is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the Court can effectively check the president's actions - although traditionally they would have been characterized as political in nature and, therefore, not subject to judicial inquiry.

Given this immense power once its jurisdiction is invoked - or even when it is not invoked as what happened in 2001 - there is every reason to fear that President Macapagal-Arroyo could use the filling of vacancies in the Supreme Court next year to serve her personal and political interests.

This is the reason why Supreme Court appointments in the United States are followed with a high level of interest than appointments in other branches of the government. In a Congressional Research Service report on the history and politics of appointments in the US Supreme Court, it was found out that the US Senate is less deferential to the president in the choice of Supreme Court appointees.

Since under the present Constitution appointments to our Supreme Court are not subject to senate confirmations, it is not likely that members of the JBC would go into the judicial philosophy - or the lack of it - of any of the candidates. Being a non-political body it is less inclined to dwell into this matter. In fact, under its rules, the JBC merely limits itself to the legal requirements of appointment to the judiciary. The political aspect is left to the president upon making her choice from the short list of nominees submitted to her.

A senate confirmation could pave the way for vetting candidates on their political inclinations. Appointees, for example, could be questioned about their concept of what should constitute political questions among controversies confronting the nation and, therefore, not subject to review by the courts. They could be asked about their thoughts on the extent of the Supreme Court's certiorari jurisdiction in checking or limiting the exercise of powers by the other branches of government. Do they hold conservative or liberal views about these things? Do they favor more governmental regulations or individual freedom?

To my mind these issues are as equally important as the candidates' qualifications and backgrounds, for we should be apprised how future Supreme Court justices will wield the sword of the country's foremost judicial power in ruling on important political and individual liberty issues that helps shape our nation. What do you think?

SUPREME COURT APPLICANTS WITH PENDING CASES

Of the 12 applicants for the Supreme Court post to be vacated by Justice Ruben T. Reyes in early January of next year, three of them are reportedly facing charges.



According to an inquirer report in its SC Appointment section, Solicitor General Agnes Devanadera is facing plunder charges before the Office of the Ombudsman for allegedly benefiting from a questionable supervision of the Poro Point Special Economic Zone and Freeport Zone in San Fernando, La Union. The other two candidates with pending cases are former BIR Commissioner Jose Mario Buñag and Court of Appeals Justice Juan Enriquez.



It is important that appointees to the country's High Court be free of blemishes that cast doubt on their integrity and competence. The JBC should leave no stone unturned in making sure that whoever it recommends to the president for appointment should only be those with proven competence, integrity, probity and independence as required under Article VIII, Section 7(3) of the Constitution.



The JBC should strictly adhere to its rules of not recommending any applicant with pending criminal cases or, in case of incumbent members of the judiciary, those with administrative cases that are serious or grave that affects the fitness of the candidate.

VETTING OF SUPREME COURT NOMINEES

As the year 2009 nears, preparation for the appointment of new Supreme Court nominees is underway as nearly half of the High Court’s members are poised to retire this coming year. As a matter of fact, 12 candidates are now being vetted for the post to be vacated by Justice Ruben T. Reyes in early January of next year.

Public advocacy groups, such as the recently formed Bantay Korte, and political observers are raising concerns that this huge number of vacancies that will be created in the Supreme Court in just a year’s time could be used by President Gloria Macapagal-Arroyo – who will have the opportunity to fill all the vacancies before her term ends in 2010 – to safeguard her interests by appointing those who will return the favor should cases involving her land on the doorsteps of the High Court.


We know, of course, that the Supreme Court is composed of 15 members and with the appointment of six grateful justices next year and one more in 2010, when Chief Justice Reynato S. Puno retires, President Arroyo could be assured of seven votes in the Court’s chamber, not to mention Justice Renato Corona who, as the president’s former chief of staff when she was still the vice president, could be counted in her favor.

Whether these fears are unfounded or not, to my mind the important question to be addressed is how effective and credible is the vetting process for prospective appointees to the Supreme Court.


At present, Supreme Court appointees are selected by the president from a list of at least three nominees (known as the “short list”) for every vacancy, that is submitted by the Judicial and Bar Council (JBC) after several applicants for such vacancy are screened.

With the JBC being composed of diverse members from both the public and private sectors, proponents of the system contend that the current selection system is insulated from politics, unlike in the past where only the Justice Secretary submits nominees for the President to appoint.

The suspicion, however, is that the president usually submits a list of her own candidates or indicates favored ones who as a matter of course always end up on the short list.

The problem I see with the current system is that there is not much transparency and publicity in the manner the JBC goes about its business, so much so that there is not much public participation in the process or public participation is practically nil.

As future occupants of the country’s highest judicial body that lays down important decisions for the nation – especially in the areas of civil liberties and exercise of governmental powers – nominees to the Supreme Court should be subjected to the same publicity and rigorous scrutiny, if not more, that the controversial and colorful personalities in congressional investigations are confronted with.

In the United States, the process of confirming and approving appointees to its Supreme Court is considered of utmost importance and in fact appointees are subjected to more scrutiny than other appointees of the president in the executive department. On average it takes about two to three months by the US Senate to confirm or deny Supreme Court appointees.

The present process of selecting Supreme Court nominees in our country might have been depoliticized by the 1987 Constitution, but with a Justice Secretary on board, who is the president’s alter ego, and four ordinary regular members who owe no accountability to any constituency, the influence from a sitting president might just be too strong a temptation to resist.

If, however, appointments to the Supreme Court are subjected to senate confirmations, which the 1987 Constitution does not provide, the vetting process could acquire more exposure and invite public discussion. Never mind the grandstanding, legislators will be more inclined to dig into the appointees’ records and engage them into a discussion of their qualifications, personal background, and judicial philosophy or the lack of it.

With a senate confirmation – in addition to the JBC process – there would be a check and sharing on the president’s appointing power for members of the Supreme Court, similar to the appointment for certain members of the executive branch.

It is true that by adding senate confirmation the process becomes politicized, since party affiliations and alliances will play major roles in determining appointees. There would also be the likelihood that if majority of the members of senate are party mates or allies of the president the principle of check and balance may not serve its purpose.

All these fears, however, are realities we all have to contend with under our present political and governmental structures. Party politics will always play an important role in matters of governance. What is important is that the selection process will become more transparent and invite more public discussion, aside from the fact that senators, administration allies or not, will most likely engage themselves in the discussion and debate that could bring more information out for the public to digest.

Furthermore, for fear of not being able to select only the most qualified and best legal minds for the country’s high court, there is a strong likelihood that senators would become more circumspect in confirming or denying appointees to the Supreme Court, and the prospect of a rigorous confirmation would make applicants with questionable background think twice in submitting their applications.

It will be recalled among observers of US politics that in 2005, Pres. George W. Bush appointed White House counsel Harriet E. Miers to succeed Justice Sandra Day O'Connor after announcing her retirement from the US Supreme Court. But after much criticism and public controversy over her appointment President Bush withdrew her appointment.



This is the importance of transparency and public participation in the selection process. Of special significance is the media's participation. By generating discussion on the background and qualifications of a candidate for the High Court and closely guarding the selection process every step of the way, public opinion could play a vital role in weeding out unfit candidates and generating support for the most qualified ones.

THE NEW PUNO SUPREME COURT

By next year, almost half of the members of the Supreme Court will be vacated with the retirement of six associate justices. Already, the Judicial and Bar Council (JBC), the constitutional body tasked to recommend appointees to the judiciary, has started screening and interviewing candidates for the position to be vacated by Associate Justice Ruben T. Reyes on January 3, 2009.



The crucial question now that must be asked by every concerned citizen is how effective and reliable is the vetting process being undertaken by the JBC? It is good to know that a new group called "Bantay Korte" - composed of lawyers, legislators, legal scholars and civic-minded people - has been formed to follow closely the selection process, aside from the existing public interest organizations out there. But more than anything else, the best measure to ensure the integrity of the selection process is by making the proceedings of the JBC completely transparent and participatory, which means involving the public in a vigorous discussion.



There should be equal, if not more, publicity to the proceedings of the JBC as the candidates for the highest court are being interviewed about their qualifications and backgrounds, in much the same way as congressional hearings are publicized. For years much of the JBC's proceedings seem to have been shrouded in secrecy; the public does not even know who its members are, except perhaps Sen. Francis Pangilinan. The media - print and broadcast - should be given unfettered access to the JBC's records and proceedings, for after all there should be nothing confidential about the candidates for the highest judicial post.



Full exposure of the candidates (I mean their backgrounds and qualifications) should be made so that the public may dig into their records and see how truly fit they are for the Supreme Court. Public discussion and debate about the candidates' fitness should be made in the media.



Of particular importance that should be emphasized in the criteria for selecting appointees to the SC is the stand of the candidates on the Bill of Rights, especially on freedom of speech. How do the candidates view the importance of free speech in a democratic society like ours? Are they more disposed in shielding the government and its functionaries against public scrutiny or in allowing the public become more vocal in matters of governance. For sure, the present Supreme Court, under the able leadership of Chief Justice Reynato Puno, has shown its fidelity to this important constitutional right as shown by its recent decision in Chavez v. Secretary of Justice. With the impeding substantial change in the High Court's composition, however, this unswerving fidelity to free speech might also meet a drastic change.



Of course, there is also the fear that the new appointees might be beholden to the president, who would ensure favorable decision for her should cases affecting her in the future, especially after she steps down from office, land on the doorsteps of the High Court. So let us all keep a watchful and vigilant eye on this important development.

FREEDOM OF SPEECH AS THE
CORNERSTONE OF DEMOCRACY

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights, were considered the necessary consequence of republican institutions and the complement of free speech. This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, in which it was held:

". . . At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent."

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change. As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open.

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well -- if not more – to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

[Chief Justice Reynato S. Puno, speaking for the Supreme Court in Chavez v. Gonzales, G.R. No. 168338 (February 15, 2008)]