Alternative Party-List Law

I don’t think it needs further discussion that RA 7941 is a poor implementation of the constitutional directive for Congress to enact a law on party-list representation. Basically, the criticisms zero down on the following:

• The 3 seat limitation – some groups want more because they argue that voters are being disenfranchised because some votes do not translate into seats , e.g. if 10% should get 5 seats, the votes beyond 6% are disregarded

• The 2 % threshold – the difference between 2% of 100,000 and 10,000,000 is about 198,000 votes. How representation referred to in Constitution be based on a number which relies on the number of votes cast on the party-list elections?

• The Panganiban Formula – the criticism on the so-called Panganiban Formula is that it awards party-list seats so niggardly. The thing is, it is RA 7941 that does so. The SC cannot go around and interpret RA 7941 as independent of legislative intent. That would be judicial legislation. Contrary to the criticism, the Panganiban Formula actually sets the bar lower for additional seats. Under it, if the first party is entitled 2 additional seats, a party must get at least 50% of the votes of the first party. But if it is to be really proportional, 50% should only get 1.5 seat. To my mind, a party should get at least 66% of the votes of the first party to be entitled to an additional seat.

Given this, an alternative to RA 7941 needs to be figured out. Am not talking of refashioning RA 7941 out of its flaws. What is needed is something that reorients the qualifications and parameters for selection of party-list representatives.

The only thing that will remain is the 20% threshold because that is stated in the Constitution.

First, I would do away with the 3-seat limit. Not that it means a party-list would be entitled to a number of seats relative to its share of votes, what I mean is that each party-list can only be entitled to one seat. How many voices do you need to be heard in Congress, by the way?

To my mind, a party-list group should be distinguished from district representation because its constituency should be based on its grassroots organization and should not grovel for votes like their counterparts. Their advocacy should not be based on popularity but organization. Consequently, their qualification to file a certificate of candidacy, aside from the fact that they should represent a marginal sector of our society, is the claim that they have a substantial membership base.

Thus, to those in the party-list, the election is merely a confirmation of what they claim in their certificate of candidacy.

The next repercussion to this is the avoidance of groups who merely represent an advocacy and not a marginalized sector. Thus, we find in the present dispensation the election of groups who are mere shells of an organization. They get elected by prostituting themselves for votes to the general public or by paying the “smooth operators” in Comelec.

Thus, we also avoid a very annoying sight where party-list groups competing and campaigning for votes during election time. Should it not follow that when they claim that they represent a constituency when they filed with the COMELEC, such constituency is already existing and not to be squeezed out of the general public come election time? Party-list representation should not fall under popular representation. That should be left strictly to district representation.

For qualification, the 2% threshold should be discarded. Taking into consideration the deliberations of Congress for RA 7941, the solons chose 2% because they assumed that such percentage would show that a party-list group that obtained such percentage would show that they indeed have a solid constituency. However, as several critics pointed out, basing it on the total votes cast would result in absurdity. Thus, if only 100,000 people voted for the party-list election, a measly vote of 2,000 would entitle a party-list to a congressional seat.

I suggest basing it on a real number. If Congress wants a benchmark of constituency, why not use the numbers we use for district representation. What is good for the goose is good for the gander. Under this, we might use two figures:

• a number based on the average number of voters per congressional district (total number of voters nationwide divided by the number of congressional districts)
• a majority based on the mean number alluded to above

Thus, if we have 40 million voters and 200 congressional districts, the number required for qualification in the first case would be 200,000. In the second case, it would be 100,001.

In the current set-up, if 40 million participated in the party-list elections, a party-list groups needs 800,000 votes to qualify. If only 20 million voted, 400,000. If only 100,000 voted, a measly 2,000 would entitle a party-list group to a seat. It is absurd that as the number dwindles, it becomes easier to obtain a seat in Congress.

Theoretically, the number of party-list groups that can qualify equals that of district representation. How do we trim that so that the 20% threshold is met?

That is why the initial qualification should be further subjected to another threshold. A party-list who obtains this initial qualifying criteria should rank in the list of top vote-getters within the number of seats allocated for the party-list. Thus, if 50 seats have been allotted for them, a party-list group should rank within 1-50 of the top vote-getters to be finally entitled to a seat in Congress.

Got Tagged, I'm It?

I've been tagged by cvj of Placeholder and Manila Bay Watch. The rules, as copied from cvj, are as follows:

• In the 8 facts about [name], you share 8 things that your readers don’t know about you. At the end, you tag 8 other bloggers to keep the fun going. Each blogger must post these rules first.
• Each blogger starts with eight random facts/habits about themselves.
• At the end of the post, a blogger needs to choose eight people to get tagged and list their names.
• Don’t forget to leave them a comment telling them they’re tagged, and to read your blog.

Here goes:

1. I am left-handed but I write with my right hand. This is because my aunt tied up my left hand behind my back when she was teaching me how to write. Karma struck when 2 out of her 3 kids turned out to be lefties and she wasn't successful in turning them to righties.
2. I was rated a sharpshooter (a notch below expert) on the caliber .45 pistol and M16/M14 rifles. I always tell my friends I deliberately missed the higher qualification because "sharpshooter" sounds very much cooler than "expert". Hehehe. Yet, I have an aversion to guns.
3. I once had mlq3 as a classmate in Kas 150 under Prof. Guerrero. But I'd trade that in an instant to switch places with a friend who was a classmate of then "dyosa ng CSSP" Reema Padilla.
   
4. I believe I was drunk half the time I was in UP.
   
5. Most people I know eat "tortang talong" with ketchup. Rare do I see people eat it with soy sauce which is the way I like it.
6. I started getting a bit of a paunch when I stopped drinking. Safe to say then that it is no mini-beer belly.
   
7. My smoking habit is so bad I still smoke even when I have a cough. Well, at least I've weaned myself away from two-pack a day (topak days?) habit. Syado magastos.
   
8. I have a bad case of sleep paralysis, particularly hypnogogia (paralysis before falling asleep accompanied by hallucinations).
   

The part about tagging bloggers, I'll pass. Most of the bloggers I read have already been tagged and suffice it to say I have started blogging only recently and I have yet to increase my blog-reading above 10 blogs. Those who have not been tagged I do not personally know or have expressed aversion to tagging. So, am I perpetually IT? :D

The MILF: A Head Without A Body

The recent ambush that resulted in the killing of 14 marines and the mutilation of some of the dead soldiers should put into question the capability of the MILF to rein in its supposed "fighters."

The MILF, it seems, more like an association of warlords organized merely to inveigle political concessions out of the government but has no real operational command over its armed components. Nothing shows this better than the prevalence of the so-called "MILF Lost Commands".

Thus, Sec. Puno's fear of "balkanization" of Mindanao becomes more and more believable. Once the so-called "Bangsamoro Juridical Entity" is established, it will just be plagued with hungry and greedy warlords like a carcass attracts vultures.

Maybe, we need to tell the MILF to rein in its forces just like the government's precondition for the CPP/NPA for the resumption of the peace talks. Until then, all bets are off.

The AFP in the City...

In the matter of the presence of the military in the cities, some pundits and legal eagles have opined that this will delve into the matter of factual determination of the basis to call out the armed forces.

Such a question has been answered by the SC in the case of IBP vs Zamora. The SC held that the calling-out power of the President is necessarily discretionary and the judiciary cannot be called upon to overrule the President's wisdom unless, of course, if such power was made in such a way constituting grave abuse of discretion.

I humbly disagree however that the controversy will fall under the calling-out power of the President. It seems clear - based on the oscillating position of Malacanang regarding the military deployment in urban areas - that such is not under the calling-out power of the President. There has been no order from Malacanang for the AFP to conduct what it has been doing. Indeed, CSAFP Esperon has been consistent in claiming that the deployment is a unilateral initiative of the AFP in pursuance of its mandate to curb insurgency.

In relation to this, RA 8551 has given back the primary role of conducting counter-insurgency operations intended for the PNP under RA 6975. To properly mount a challenge to these deployments, to my mind, requires revisiting the case of IBP vs. Zamora, RA 6975 and RA 8551.

As can be gleaned from Section 12 of RA 6975, and therefore also in RA 8551, the counter-insurgency operations mentioned therein pertain to "where insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armored vehicles".

On the other hand, the "counter-insurgency operations" being conducted by the AFP in urban areas do not involve these but involve more of the so-called "winning the hearts and minds" strategy which are in the nature of delivering basic services (civil-military operations in military parlance) and law enforcement, activities that should properly pertain to the PNP and other civilian government agencies.

We do not have an equivalent of the Posse Comitatus Act, a law in the United States that forbid the use of the armed forces in the execution of the laws except upon cases and under circumstances expressly authorized by the US Constitution or Act of Congress. What we have is a provision in the 1987 Constitution (Section 5(4), Article XVI) that says:

No member of the armed forces in the active service shall, at any time, be appointed or designated in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries.

Therefore, under the premises declared in IBP vs Zamora, there is an insidious incursion of the military in the task of law enforcement and other govermental duties which properly pertain to civilian government agencies, in violation of Section 5(4), Article XVI of the Constitution.

Human Security Act of 2007: How to use it and How not to

Observers and pundits have complained of the stupidity of the Human Security Act of 2007 and it would seem they are right. It starts with a convoluted legal definition of terrorism and actually has provisions that would make it highly inapplicable for being impractical.

While others pundits have basically pointed out the various loopholes of the law, allow me to try to outline what the security agencies can legally do, as opposed to what they have been doing all along, within the confines of Human Security Act of 2007.

One very glaring loophole of the law is its provision for compensation of P500,000.00 pesos for everyday that an accused has been held in detention for charges of terrorism if he is subsequently acquitted. Take note that nowhere in the law does it state that to be entitled to compensation, he must have been wrongfully accused. Thus, under the law a person who was acquitted for failure of the prosecution to prove guilt beyond reasonable doubt may be entitled to compensation. The law provides:

SEC. 50. Damages for Unproven Charge of Terrorism. – Upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of Five Hundred Thousand Pesos (P500,000.00) for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation...

Ordinarily, to be entitled for damages for malicious prosecution, there must be a separate judicial proceeding to determine whether indeed there was malicious prosecution. And it is not the government that would shoulder the compensation, it would be the government officials who are deemed to have acted beyond their powers who shall be liable.

Thus, the law shortcircuits its intent both ways: government agents acting in good faith to stop terrorists would hesitate from applying its provisions and stupid government agents can be gung-ho with it because they won't be paying the compensation after all.

Taking this into consideration, government agencies led by a person in his right mind will not file any charges of terrorism unless they are sure that they can get a conviction. As in everything that enters the courts, there is no such thing as an open-and-shut case.

How should they go about it then?

Use its provisions for investigation and the gathering of evidence. Then, file a case under the Revised Penal Code or special law, not under the anti-terrorism law. For example, murder or multiple murder, as the case maybe. In the long run, what's the difference between 40 years and reclusion perpetua anyway?

What then is the use of the anti-terrorism law? Just a justification for the enumerated powers for our national security agencies. Not that they have not been doing these things anyway.

Fleshing out the possibilities...

There has been much talk about the public's reaction to the upcoming decision of the Sandiganbayan on the Erap plunder case. However, opinions have crystallized on the possible reactions on basically whether it would be acquittal or conviction. However, there are varying degrees under each possibility which can possibly impact on the reaction of the public and various interest groups.

Let's take a second look on what are the possible decisions of the Sandiganbayan.

Let's start with the more problematic Not Guilty scenario. Under our criminal justice system, an accused will not be found guilty under the following:

1. He did not commit the crime he is accused of
2. The prosecution was not able to discharge the burden of proving the guilt of the accused beyond reasonable doubt

Some observers, apparently laboring under the assumption that the Sandiganbayan cannot reach a decision independent of personal and political considerations, argue that acquittal is the remotest possibility not because of the evidence presented but because they fear that acquittal would require the reinstatement of Erap to the presidency. Not only are they proceeding from a wrong and borderline malicious assumption, they are basing their fears on a wrong reading of the law, as Atty Marichu Lambino points out in mlq3's blog.

The acquittal of Erap has no legal implication as to the loss of the presidency. There should be no quibbling as to the finality of the Supreme Court's decision in Estrada vs Desierto, at least if we are to continue claiming that we are a "government of laws and not of men." Even if it can be argued that the Supreme Court's decision was wrong and be subsequently overturned, Estrada supporters cannot find comfort in that because the decision is already an operative fact and we don't have anything that would justify “a principle of absolute retroactive invalidity.”

What then is the basis of this fear? Another outburst of "people power", a redux of "The Empire Strikes Back" or "The Return of the Jedi" depending on where you are sitting on the current political spectrum (a more substantial discussion of the Philippines in the light of Star Wars parallelisms would probably be discussed in another post).

There are various factors to consider whether this scenario will unravel or not. Suffice to say that taking into consideration the current disposition, it remains a long, long, long shot. The best recourse for the country, if GMA cannot be legally kicked out of office, i.e. impeachment, is to sit out the next three years. Ironically, it is the same thing that we should have done in 2001. Years from now, historians would probably say that our curse was "people power". Marx did say that history repeats itself, first as a tragedy, the second as a farce.

On the other hand, Erap may be found Guilty under the following circumstances:

1. He has committed the crime charged in the information which is Plunder
2. The prosecution failed to prove plunder but nonetheless proved that Erap is guilty of a lesser crime necessarily included in plunder (violations of the anti-graft and corrupt practices law)

One thing needed to be pointed out is the lack of finality of the Sandiganbayan's decision in case the verdict it comes out with is one that would convict Erap. Erap has the option of appealing the decision to the Supreme Court. If that happens, what can be seen is just a prolongation of the status quo. Unless, of course, the administration would insist on throwing Erap to Bilibid. However, it would not be politically astute as it would definitely rile up Erap's more rabid supporters. The administration has successfully justified Erap's incarceration in Tanay when he should have languished in a city jail somewhere during the trial. It wouldn't be difficult to justify his continued incarceration in Tanay while he appeals his conviction.

An ideal set-up for final and executory conviction of Erap is that it be done after the term of this administration. By then, he'd be over 70 and presidential clemency would be easier to swallow.

Erap Aftermath?

Whether Estrada be acquitted or convicted, the cards are stacked in the administration’s favor.

If he is convicted, there’s the appeal to the Supreme Court. Unless the administration makes the blunder of transferring him to Bilibid and making a martyr out of Erap, it would just be status quo until the high court makes a final ruling.

If he’s convicted of a lesser charge, pardon can only be given if he does not appeal and he has always maintained that he won’t accept clemency from Mrs. Arroyo.

If ever he is acquitted, I don’t think he’d ask for the presidency back. He has made peace with the fact, i think, that it is lost. He’d probably content himself with making sure that he’d be a thorn in the side of Mrs Arroyo and be the opposition’s capo.

More importantly, there’d be little chance of people massing in the streets.

First, you have the weather. And I wouldn’t put it past the Arroyo government to do “cloud-seeding” just in case there’d be an attempt to gather people.

Second, by the end of the rainy season, at the very least by mid-October, there’s the general sense of well-being due to the Christmas season.

By January, when people are more hot-headed and now predisposed to mass-actions and protest rallies probably because they are again neck-deep in debt due to the holiday festivities, the issue would have blown-over.