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| Tony La Viña |
CANCELLING MARCOS JR.: A POLITICAL QUESTION?
The second week of January this year, the mainstream media reported that Tony La Viña, Dean of the Ateneo School of Government, had opined that the petitions before Comelec to cancel the certificate of candidacy of Marcos Jr. or to disqualify him from running for president would probably not prosper because of the application of what is known as the political question doctrine. The decision to cancel Marcos Jr. from the ballot is a “political question” that should not be decided by the courts but instead by the electorate, especially because Marcos Jr. is a leading candidate.
To quote a leading daily, Business Mirror,
begin
PRESIDENTIAL aspirant Ferdinand ‘Bongbong’ Marcos Jr., will most likely prevail in the petitions to cancel his Certificate of Candidacy in the 2022 elections before the Comelec because of the “political doctrine” that needs to be decided by the people and not by the court.
This was the view shared by lawyer Tony La Viña, former dean of the Ateneo School of Government, in a recent interview over ANC. The court, he said, cannot disqualify or dismiss a leading candidate that enjoys the support of the majority of the electorate.
“There is also a strong argument why they should be dismissed. The ultimate one is a political question. Especially a leading candidate, you should not disqualify a leading candidate that seems to have the support of many people, because you are depriving the people of their choice.
“That is political law 101: That certain things should be decided by the people and not by the courts,” said La Viña.
Such was being taught in law school, particularly in the disqualification cases in the national polls, La Viña noted.
“I teach Constitutional law, political law, and election law. When I teach this, I always tell my students, when you look at the disqualification cases, you look at the law of course, and the jurisprudence,” La Viña said.
On the possible directions the Comelec and even the Supreme Court may take, he said: “I’m inclined to think that most likely Bongbong Marcos will prevail in the disqualification cases, because more than anything, the political question doctrine. The court cannot decide this, it should be the people that should decide this.”
end
—“BBM will most likely prevail in petitions – ex-Ateneo School of Govt dean,” BusinessMirror (January 10, 2022)
On first pass, the argument comes across as preposterous, more so because it issues from the lips of a legal luminary.
Are we to say that because of the political question doctrine, granting the electorate the right to vote for a leading candidate trumps any other applicable laws or jurisprudence?
Isn’t it absurd to argue that the election of public officers should be left to the decision of the electorate unchecked by the laws of the land, which are not limited to the Constitution but also extend to the electoral laws and jurisprudence applicable to the specific case of Marcos Jr.?
Don’t the laws of the land allow for the cancellation of the certificates of candidacy of electoral candidates or their disqualification? Are they supposed to be ignored because of the argument that the right of the electorate to vote for a popular candidate is a political question that should not be overruled?
Outrageous is the suggestion that some kind of exemption or special treatment should be accorded a candidate based on their alleged popularity. It raises the difficult question of how for the purpose of making an exception an attribute so elusive and changeable can be effectively determined.
Admittedly, the foregoing draws out extreme inferences like straw men, so to be fair, we should first investigate whether the Business Mirror news report accurately reflects the words and meaning of the speaker.
We are able to do so because the December 31, 2021 ANC interview of La Viña by Christian Esguerra is available on YouTube. See:
https://www.youtube.com/watch?v=35ez7u6y9rk&t=1042s
—ABS-CBN News, “After the Fact | ANC (31 December 2021),” YouTube video, 1:00:50 minutes, December 31, 2021
La Viña’s exchange with Esguerra about the Marcos Jr. cases before Comelec begins at 17:18 and ends at 22:42.
After reviewing the video, I would say that the Business Mirror news report is unduly selective. The report omits important passages wherein La Viña affirms the robustness of the petitioners’ position, for example, when he says at 18:12:
“But technically, you can disqualify Marcos, without any difficulty, I think, in terms of legal gymnastics. You don’t have to twist the law too much to disqualify Senator Marcos.”
On the other hand, the news report accurately recapitulates La Viña’s endorsement of the political question argument in favor of Marcos Jr. It also objectively highlights his assessment that Marcos Jr. will win the Comelec cases.
The news report reproduces with no substantive alteration La Viña’s words.
Unhappy with the news coverage of the Esguerra interview, La Viña complained that his views had been taken out of context and that they were being used by the camp of Marcos Jr. to promote their side in the Comelec cases.
La Viña was given the opportunity to expand and clarify his views in a subsequent Manila Standard article.
I would note that the article goes beyond the content of the original interview and changes its meaning considerably, for example, when he says:
“The worst-case scenario is for the Court to come up with a decision (including resolving motions for reconsideration) only after the 2022 elections but with Marcos already getting the most number of votes. Equally bad is a decision made on the eve of Election Day, causing confusion and chaos.
“These scenarios, in effect, will be nullifying the will of the people which goes against the essence of democracy.
“…In any case, the better scenario on the Marcos petitions is for the Comelec and Supreme Court to decide the petitions by the end of March, at the latest. That would mean the people would be apprised of their choices well ahead of their vote and the other campaigns will be able to recalibrate depending on the outcome of the petitions.
“This way, the election would be won through the ballot box and not through a legal decision which will make the outcome illegitimate in the eyes of many of our people. That in turn will create instability and tempt the military and similar forces to intervene. No one should want that scenario.”
None of which had been said in the original Esguerra interview.
—Tony La Viña, “Scenarios on the Marcos Petitions,” manilastandard.net (January 11, 2022)
I would like to offer some short remarks about the political question doctrine.
Always I approach legal discourse from the standpoint of logic, especially informal logic. I do not examine them as a lawyer, because I am not one, and besides, I am happy not to be so fraught.
The difficulty with the political question doctrine from my standpoint is that it is overbroad. It is insufficiently restrictive, so that its wide-ranging applicability makes it possible to rationalize judicial decisions that could not otherwise be adequately justified. The notorious case of Javellana v. Executive Secretary comes to mind.
See the following definition of “political question” from Cornell Law School, which illustrates the charge of being overbroad:
“Federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue.”
https://www.law.cornell.edu/wex/political_question_doctrine
—Legal Information Institute, “Political Question Doctrine,” Cornell Law School
The literature on the political question doctrine appears to recognize this fault, i.e. being overbroad. Often the literature will seek to specify the doctrine further, especially by restricting its scope, for example [boldface mine]:
“Whether there should be a political question doctrine and, if so, how it should be implemented continue to be contentious and controversial issues, both within and outside the Court. This Article urges that the Justices should reformulate the detailed definition that they have utilized (at least formally) since 1962, and adopt four criteria to be applied in future cases. The least disputed—textual commitment—is the initial factor listed in Baker v. Carr. The other three are based on functional considerations rather than constitutional language or original understanding. The first of these—structural issues: federalism and separation of powers—has been advanced and developed in my earlier work. It is based on a comparative advantage of the political process over the Court in sound constitutional decisionmaking respecting the relevant issues, as well as the trustworthiness respecting fundamental values of the national legislative/executive branches in doing so. The remaining two criteria involve removing questions of individual rights from the judiciary’s realm, something that would (and should) occur very infrequently. The manageable standards test recognizes that there may be constitutional provisions for which the Court lacks the capacity to develop clear and coherent principles. The generalized grievance guide is similar in many ways to structural issues in that it is also grounded in matters of comparative advantage and trustworthiness of results.”
https://www.jstor.org/stable/40040515
—Jesse H. Choper, “The Political Question Doctrine: Suggested Criteria,” Duke Law Journal (April 2005) 54(6):1457-1523
Sometimes, the political question doctrine functions like a conveniently encompassing blanket used to account for judicial decisions that refuse to deal adequately with the issues at hand.
That was
how it appeared to me when La Viña pulled the political question doctrine out like
the proverbial rabbit from the hat.
Photo is posted on this website according to principles of fair use, specifically, it is posted for the purposes of information and education. Also, the post directly refers to the person in the photo.
ReplyDeletePhoto link: https://tribune.net.ph/index.php/2021/01/03/environment-and-climate-change-talks-slated/
Gonzalinho
Dan Gatmaytan is a Professor of the University of the Philippines, College of Law. On January 10, 2022, he posted the following on Facebook.
ReplyDeleteThere are statements swirling in social media suggesting that the qualifications of Ferdinand Marcos, Jr.—his eligibility to run for President—is a political question and cannot be decided by the Commission on Elections, and ultimately by the Supreme Court. This is incorrect. A candidate who does not possess the qualifications for office or is disqualified by law can be disqualified.
There is also no Supreme Court ruling providing that a candidate who is leading in election surveys cannot be disqualified.
The eligibility for public office is not a political issue.
An issue is not political question simply because votes are cast. In Miranda v. Aguirre (G.R. No. 133064, September 16, 1999), the Supreme Court held that a plebiscite to approve Republic Act No. 8528 (downgrading the City of Santiago from an independent component city to a component city) is not a political question. The issue in that case was whether Republic Act No. 8528 complied with the requirements of the Constitution which is a question that the Supreme Court alone can decide.
A basic rule in political law is that a candidate for public office should have all the qualifications and none of the disqualifications for office.
A person who garners the highest number of votes, if disqualified under election laws, cannot be declared the winner.
The Court ruled in Halili v. Commission on Elections (G.R. Nos. 231643 & 231657, January 15, 2019) that:
Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the will of the electorate.
In Maquiling v. Commission on Elections (G.R. No. 195649, April 16, 2013), the Supreme Court held:
The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic.
If a candidate who garners the highest number of votes can be disqualified, so too would a person whose claim to the popular mandate has not been tested in an election.
See: https://www.facebook.com/dan.gatmaytan/posts/10160682641053797
Gonzalinho
As I have argued, “Are we to say that because of the political question doctrine, granting the electorate the right to vote for a leading candidate trumps any other applicable laws or jurisprudence?
Delete“Isn’t it absurd to argue that the election of public officers should be left to the decision of the electorate unchecked by the laws of the land, which are not limited to the Constitution but also extend to the electoral laws and jurisprudence applicable to the specific case of Marcos Jr.?
“Don’t the laws of the land allow for the cancellation of the certificates of candidacy of electoral candidates or their disqualification? Are they supposed to be ignored because of the argument that the right of the electorate to vote for a popular candidate is a political question that should not be overruled?
“Outrageous is the suggestion that some kind of exemption or special treatment should be accorded a candidate based on their alleged popularity. It raises the difficult question of how for the purpose of making an exception an attribute so elusive and changeable can be effectively determined.”
Gonzalinho
On the UP College of Law website, he defines the meaning of “political question.”
Delete“Political questions are those questions which, under the Constitution, are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority has been delegated to the legislative or [to the] executive branch of the government (Mamba v. Lara, G.R. No. 165109, Dec. 14, 2009). These are questions that are left for the people themselves to decide or which are to be decided by the other branches of government.
“Political questions are concerned with issues dependent upon the wisdom, not legality of a particular measure (Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, March 2, 2001).
“Where the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or non-political (Sanidad v. Commission on Elections, G.R. Nos. L-44640, L-44684 & L-44714, Oct. 12, 1976).”
According to the above definition, the eligibility of a candidate for public office is not a political question because it is not outside the scope of the statutory requirements for the same and for this reason the eligibility of a candidate for public office is in any one particular case justiciable.
—Dante Gatmaytan, “Beyoncé for President: Popularity Is Not a Free Pass to the Presidency,” UP College of Law
To be continued
Gonzalinho
Continued
DeleteFurther on, he logically argues, citing jurisprudence,
“There is no Supreme Court decision saying that a candidate’s eligibility for public office is a political question.
“…In Maquiling v. Commission on Elections (G.R. No. 195649, April 16, 2013), the Supreme Court held:
“The ballot cannot override the constitutional and statutory requirements for qualifications and disqualifications of candidates. When the law requires certain qualifications to be possessed or that certain disqualifications be not possessed by persons desiring to serve as elective public officials, those qualifications must be met before one even becomes a candidate. When a person who is not qualified is voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law that sets forth the qualifications and disqualifications of candidates. We might as well write off our election laws if the voice of the electorate is the sole determinant of who should be proclaimed worthy to occupy elective positions in our republic.
“Then in Halili v. Commission on Elections (G.R. Nos. 231643 & 231657, Jan. 15, 2019) the Court held that:
“Where a material COC (certificate of candidacy) misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the will of the electorate.
“Maquiling also emphasized that the qualifications prescribed for elective office cannot be erased by the electorate alone. The danger of allowing the election results to erase election laws was spelled out in the same case:
“What will stop an otherwise disqualified individual from filing a seemingly valid COC, concealing any disqualification, and employing every strategy to delay any disqualification case filed against him so he can submit himself to the electorate and win, if winning the election will guarantee a disregard of constitutional and statutory provisions on qualifications and disqualifications of candidates?
“If this is the rule — if a candidate who garners the highest number of votes can be disqualified — it should also apply to a person whose claim to the popular mandate has not been tested in an election.
“The idea that popularity in an election survey converts a legal issue into a political question is preposterous. If we adopt this view, Beyoncé can run for President of the Philippines because her popularity will trump the requirement that the President should be a natural-born citizen of the Philippines. Or American actress and singer Zendaya no longer has to meet citizenship, age, or residency requirements of the Constitution (Article VII, section 2 of the Constitution).”
—Dante Gatmaytan, “Beyoncé for President: Popularity Is Not a Free Pass to the Presidency,” UP College of Law
Gonzalinho