Corona's Appointment Ties Noynoy's Hands

In clear disregard of the incoming president's prerogative to appoint the next chief justice, outgoing president and incoming congresswoman Gloria Macapagal-Arroyo (GMA) displayed once again her stubbornness by appointing her former chief of staff and spokesperson, now Supreme Court Justice Renato Corona as the next chief justice.

While De Castro v. Judicial and Bar Council has cleared the way for GMA in appointing the next chief justice, courtesy and prudence dictate that she should have let the incoming president have the privilege of appointing the replacement of Chief Justice Reynato Puno, who is set to retire on Monday. The absence of a chief justice will in on way hamper the operation of the high court, it being a collegial body where each member equally exercises judicial functions in collaboration with the others. Besides, an acting chief justice can always be designated in the interim as has happened in the past where the most senior member of the court assumes the role pending the appointment of a chief justice.

GMA's haste in appointing the new chief justice, with only less than two months before her term expires, is once again lending credence to apprehensions of another sinister plot in the making. Just like the no-el scenarios - born out of Malacañang's questionable conduct and pronouncements - this appointment will once more stir our imaginations and make us conclude that GMA is making the final touches to her carapace that will protect her against future prosecutions, especially so that the presidential front-runner Noynoy Aquino has promised to launch an investigation into the allegations of wrongdoing during her administration. And who better to protect her than an old associate like Renato Corona, who has closely worked with her even while she was still a vice president.

But GMA does not only appear to serve her interest in this appointment. She has also put the heir-apparent to the presidency on the spot. Knowing that Aquino has publicly announced before that he will not recognize a GMA-appointed chief justice, the appointment appears to be pitting Noynoy against the Supreme Court (which is packed with GMA appointees) early on in his presidency.

After all is said and done, however, the appointment of Renato Corona has effectively tied the hands of Noynoy. The Supreme Court itself has already spoken that GMA can make the appointment. For Noynoy to disregard such appointment once he assumes power would not only be a legal dent on his young administration, but also antagonize the Supreme Court whose members will not take kindly the embarrassment that will befall one of their own.

If GMA has not seen fit to exercise courtesy and prudence, that's no reason for Noynoy to do the same. Nothing will be gained except to nurse a bruised ego by not recognizing the appointment, however distasteful the manner it has been made. Six years is a long time to be waging losing battles in the Supreme Court.

(Photo Courtesy of www.caloocancity.gov.ph)

Dimensions of a Failed Election and What GMA Needs to Do

As the May 10 elections near the failure of elections anxiety grows even stronger. This fear acquires special significance because for the first time in Philippine history the elections will be automated - at least on a nationwide basis, since we already had a taste of computerized polls during the ARMM elections. In this coming elections, however, the stakes are high as all positions, from president down to the councilor of the smallest municipality, will be voted for.

Failure of elections is not something new in our electoral lexicon. Losing candidates have at various times in the past utilized this as a legal tool to annul the proclamation of their rivals. More often than not, however, this legal argument has been met with disapprobation from the Supreme Court. The High Court has sustained this claim only in the clearest cases of electoral frauds.

Section 6 of the Omnibus Election Code identifies the instances under which the Commission on Elections (Comelec) can declare a failure of elections, which the Supreme Court in Soliva v. Comelec, G.R. No. 141723 (April 20, 2001) has enumerated in the following manner:

Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election. First, when the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in any polling place had been suspended before the hour fixed by law for the closing of the voting. And third, after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.

In the context of automated polls, many fear failure of elections with computers breaking down or not transmitting election results. The glitches experienced in the recent absentee voting in Hong Kong have only served to heighten this fear. In Roque v. Comelec, however, the Supreme Court dismissed this fear in denying the petition to declare the automation illegal. The Supreme Court said the automation law provides manual voting as a contingency measure in the event computers break down. The problem with this, however, is that if manual voting is resorted to in case of computer glitches, elections in affected precincts may take unusually longer and pass the closing of voting, especially so that precincts are now clustered with registered voters numbering as many as 1,000 in a precinct. Many voters will end up not being able to cast their votes.

Another scenario is the ever-looming threat of electoral fraud. Opponents of automation claim the resurgence of Garci-type cheating, wherein Comelec insiders will rig the PCOS machines by configuring them to make the favored candidates win. Inquirer columnist Amando Doronilla, however, refuses to accept this possibility in his February 16 article Who Will be the Evil Genius? According to him, there is none among the current presidential candidates (except perhaps Gilbert Teodoro via Pres. Gloria Macapagal-Arroyo) who is in a position of authority to direct the manipulation by Comelec. Teodoro and Comelec chair Jose Melo, he says, would not do it. Doronilla argues that President Macapagal-Arroyo has clearly no need for this to further her congressional bid, considering her almost guaranteed victory among her town mates.

If elections fail - because of massive cheating or breakdown of voting machines or both - and the problem is not resolved before the term of office of the president and her constitutional successors ends on June 30, there would clearly be no one legally authorized to lead the country after this date. Since GMA would be the last person to hold the reins of power before the crisis begins, I would suppose she would stay at the helm in the mentime. Now, whether or not she will do so for good remains to be seen.

Although most GMA critics would conclude that she will take this opportunity to remain in power for good, I humbly believe otherwise. If GMA were to perpetuate herself in power she would certainly meet stiff opposition both domestically and internationally, not least of which is the US. With all the military exercises the US has been conducting in the Philippines and the millions of dollars it pours into them, the Philippines is still much within the radar of US global interests. With all its worries on terrorism, the need to check an ever expanding China, and an adventurous North Korea, the last thing the US needs is a failed or weakened Philippine state.

On the local front, a permanent GMA tenancy in Malacañang would elicit thunderous protests from the opposition and civil society groups. Coups are not farfetched. In short what will happen will be nothing short of a civil unrest; even worse, an uprising that could throw the whole country into a bloody revolution. This very gruesome scenario is something that will make Washington even more vigilant in preventing a Marcosian reprise by GMA. With all her faults, I don't think GMA is ready to take this dangerous path.

GMA can, however, do one last thing that will mark her legacy. She could remain in power - a sort of hold-over president - in the event of a failed election. But in doing so, she must assure the public that it will only be temporary until the elections are re-held and completed. By law, the Comelec is mandated to re-hold elections in the event of failure at the first instance. This would entail huge expense and effort, but this is the only way that chaos can be averted.

The alternative of her not staying and vacating office when no successor has been proclaimed and sworn would be more dangerous. Power grabbers from all stripes will try to outdo each other to succeed in power. There can be no illusion that this will happen peacefully. To be sure it will be a violent race to the top. On the other hand, if GMA were to hold-over, it will simply be a case of status quo. What will save the day is the assurance that she will give to the public that she will only be doing so to pave the way for a smooth transition of power.

The Evil of GMA's Congressional Bid

Post-presidential involvement in politics is not something new. We know, for example, that the late Coazon Aquino continued to involve herself in politics long after she ceased being president, as did Fidel Ramos and Joseph "Erap" Estrada. In the US, from which we copied our presidential system of government, many former US Presidents continued to be active in politics long after they have stepped down from office.

It is also not a new phenomenon for a former president to run for or be appointed to a public office after completing his term. John Quincy Adams, after serving as the 6th president of the US, was elected as a member of the US House of Representatives. Now contrary to what the critics say, this would not necessarily cheapen or demean the presidency. John Quincy Adams's incumbency as congressman for 17 years was served well in championing civil and political rights that eventually led to the removal of the prohibition on introducing legislations against slavery.

Of course GMA's candidacy for Congress is unprecedented in the Philippines. What leaves a bad taste in the mouth about it, as described by Sen. Chiz Escudero, has something to do less with demeaning the presidency than with GMA's nine years of presidency being characterized by corruption and abuse of power, and a nagging question about the legitimacy of her ascendancy to power. During her incumbency, GMA's admininstration has been beset by scandal after scandal, such as the $329-million NBN-ZTE broadband network deal, $14-million IMPSA power plant project, P728-million feritlizer fund scam, P321-million Jose Pidal accounts, and, not least of all, the "Hello Garci" scandal - our very own version of Watergate which should have brought down GMA's presidency as it did Nixon's. To this day, however, not one has been put behind bars despite these egregious scandals of brobdingnagian proportion.

The opposition have raised fears of GMA manuevering her way into power again in running for a congressional seat. The theories range from her gaining the House Speakership, directing a charter change toward a parliamentary government that would make her prime minister, to acquiring immunity from prosecution. But the message that should be stressed is the evil of electing someone whose governance has been tainted with corruption, official wrongdoing, scandals, abuses of power and electoral fraud.

To be sure, GMA being back at the helm is a distasteful proposition. Reprehensible even. But for now this is conjectural and may not happen at all. The opposition should come out strong and emphasize the evils that lurked under GMA's tenure in decrying her return to politics, instead of harping on conjectures about her return odyssey to power. While it is true that none of the charges against GMA have yet been proven - at least in a court of law - there is no denying, however, that these scandals and official malfeasances did take place. And they took place under her watch, which speaks volumes about her competence and effectiveness as a leader. Even worse, the public have yet to see the hand of the law reaching the guilty, while GMA thwarted, under the guise of executive privilege, every effort to bring to light the facts and circumstances surrounding these scandals.

The candidacy of GMA will ultimately be a referendum on her presidency. Her election as a Pampanga representative come May 2010 will put a stamp of approval on all that she represented under her nine years of incumbency as president - something every Pampangueño should seriously ponder before doing.

Obama-GMA Meeting Reflects US Policy Toward Philippines

Having spoken strongly against those who cling to power through corruption and deceit during his inaugural address, one would think President Obama would somehow reinforce this message during his conversation with GMA, whose waning administration as we know has been beset by serious allegations of corruption and abuse of political power. He made no qualms reiterating this in his disapproval of Honduran President Manuel Zelaya's ouster by the military, although there are still hanging questions on the legitimacy of Zelaya's actions that precipitated his removal. Instead, President Obama steered away from such hot-button issues like charter change, term extensions, martial law, corruption and human rights, despite the fact that these issues threaten the political stability of the Philippines.

To be sure, President Obama was briefed on these issues but policy considerations made them off-limits. That President Obama did not make any reference to them at all, or even a hint, is an indication that the US's only interest in the Philippines right now is regional security. Given the generous accommodation the Philippines provides to US forces, not to mention our history of unflinching support for US foreign policy in other parts of the world, GMA is seen by the US as an invaluable ally in propping up its presence in the Asia-Pacific region in the wake of the North Korean threat and the growing dominance of China. Serious questions about GMA's governance appear to be the least of US's worries for now.

Such approach to US foreign policy is not something new, where notably corrupt and dictatorial regimes have been supported by the US in the past in pursuing its interests, as in the case of Saddam Hussein during the Iran-Iraq War or of Pervers Musharaff of Pakistan in recent memory. Or closer to heart, we have the case of President Ferdinand Marcos who, until Edsa I, continuously enjoyed the support of the US. But the idea that President Obama would resuscitate this reprehensible policy is a big disappointment. After all, President Obama stressed during his inaugural speech that he rejects the false choice between America's safety and ideals; that US foreign policy - when it comes to protecting America - would not compromise its ideals. Although such pronouncement was made in the context of fighting terrorism it is safe to assume that it would also apply in other instances.

What is even disconcerting is that not only did President Obama fail to indicate US disapproval of any totalitarian tendencies and raise concerns on the disturbing corruption and unsolved human rights cases in the Philippines, he also heaped encomiums on GMA for her position on human rights and, in his words, for doing "an outstanding work on a whole range of issues." This is ironical because the human rights record of the Arroyo administration is not anywhere near acceptable. Just last year UN Special Rapporteur on Human Rights Philip Alston gave the Philippines a failing mark on human rights. And five months ago, the Philippines has been listed as the most dangerous peactime country for journalists in the wake of the numerous unsolved murders of journalists.

I don't know if corruption - where the Philippines notoriously and consistently get a high world ranking - is among the "range of issues" where President Obama said GMA is doing an outstanding work. I am sure he is not unaware of the recent World Bank report on corruption of road projects in the Philippines which are funded by no less than the World Bank, in which the US has a stake; or of the allegations of corruption in the use of military assistance funds provided by the US on the joint RP-US military exercises.

But why would the US put so much value in its relationship with an administration which, although has proven to be an important and loyal ally, is already in its waning days and risk the ire of an opposition that could seize power after the elections, given the administration's sagging popularity? This is a fertile ground for speculation of possible US support, or what amounts to the same thing, of off-hand US policy in case our much-feared apprehension of a term extension for GMA comes true. How we wish we knew what transpired behind closed doors between these two leaders.

When GMA Exercises Commander-in-Chief Powers

Once again talks of an impending martial law abound with the recent story in a major newspaper of a so-called "Oplan August Moon," which is allegedly a plan to extend the term of President Gloria Macapagal-Arroyo by declaring martial rule - to be accomplished by appointment to key military positions of generals loyal to GMA and creation of emergency scenarios reminiscent of the Marcos era. You may want to read Ding Gagelonia and Patricio Mangubat's interesting articles on this issue.

A review of the Constitution tells us that the president can exercise commander-in-chief powers under Art. VII, Sec. 18, which provides as follows:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. . .

The foregoing provision spells out three important powers that the president may exercise in times of national emergencies: (1) calling-out power (2) power to suspend the privilege of the writ of habeas corpus and (3) power to declare martial law.

The calling-out power refers to the power of the president to mobilize the armed forces - whose regular function is to protect the territorial integrity and security of the state against foreign aggressions - in preventing or suppressing lawless violence. In the words of David v. Gloria Macapagal-Arroyo (Prof. Randy David's first taste of eskrima with GMA), this involves ordinary police action. The Supreme Court also said in this case that the criterion by which the validity of the exercise of this power may be tested is the phrase "whenever it becomes necessary" in Section 18, meaning whenever the president determines there are existing conditions or situations - such as widespread violence, invasion or rebellion - that would necessitate the use of more force in restoring and maintaining peace and order in the country.

The power to suspend the privilege of the writ of habeas corpus (HC) and declare martial law are considered the more expansive exercise of the president's emergency powers. Martial law is distinguished from the president's exercise of his calling-out power in that in the former the country or a portion thereof is placed under military rule while in the latter the armed forces is only called upon to assist the police in maintaining peace and order. HC refers to the process by which a court compels the government to produce before it a person under the latter's custody or to justify the reason for such custody. The suspension of this privilege could lead to the detention of persons without charges.

It should be noted that although traditionally the suspension of the privilege of HC is equated with or follows the proclamation of martial law, the Constitution now makes it clear that martial law by itself does not suspend the privilege and there must be an order for such suspension.

If and when GMA declares martial law and/or suspends the privilege of the writ of HC she is required by the Constitution to submit a report to Congress within 48 hours from such declaration and/or suspension. Here again is where GMA can benefit immensely from her allies in Congress. Notice the following paragraph in Section 18:

The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

Unlike the Cha-cha provision in Art. XVII, Sec. 1, there is no equivocation on the manner of voting. The Constitution explicitly allows (in fact it requires it) suspension of the bicameral process by requiring Congress to vote jointly in revoking, affirming or even extending martial law. Given the number of representatives, most of whom being administration allies, GMA can easily get congressional support. And if HR 1109 is any indication the votes alone of the loyal congressmen would suffice to meet the majority vote required.

If this happens the last constitutional resort to question the legality of martial law is the Supreme Court. Unlike in the pre-1987 Constitution era, there is no longer a debate as to whether the courts may look into the factual bases for the declaration of martial law. Where before the determination by the president of the necessity of martial law is binding and conclusive - a political question which the courts may not review - the Constitution now explicitly makes it a justiciable political question by stating in paragraph three of Section 18 that the Supreme Court may review ''the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof." In fact this provision confers a legal standing upon any citizen to bring the appropriate petition.

A word of caution however. David tells us that it will be the petitioner questioning the validity of martial law who must bear the burden of proving the insufficiency of the factual bases relied upon by the president in declaring martial law and/or suspending HC. The problem with this is that there is a strong likelihood that the Court will accord great weight to the executive department's finding of necessity (the Constitution says [1] there is an invasion and public safety requires it or [2] there is a rebellion and public safety requires it), either in subservience to GMA or what amounts to the same thing, in deference to another co-equal branch of government. As the Court ratiocinated in David in finding factual bases for GMA's Presidential Proclamation No. 1017 - declaring a state of emergency - "Owing to her [GMA] Office’s vast intelligence network, she is in the best position to determine the actual condition of the country."

I would like to believe GMA would be wise enough to cover her base if and when she invokes her commander-in-chief powers by seeing to it there would be sufficient basis for martial rule. In addition to this it would be safe to assume that she would also see to the appointment of sympathetic justices in the Supreme Court, where she is in the enviable position of filling almost half of the Court's membership as several of them retire before her term ends.