JGL Eye

By JOSEPH G. LARIOSA

(© 2009 Journal Group Link International)

PHILIPPINE SUPREME COURT SHOULD GO SLOW WITH ITS JUDICIAL ACTIVISM

C HICAGO, Illinois (JGLi) – The great President Ramon Magsaysay was not a lawyer. But he left a lasting legal imprint when he advocated that, “He who has less in life should have more in law."

These words should not only be addressed to Congress, the President but also to the Supreme Court.

And because the Supreme Court is supposed to interpret the law, not make it, its recent per curiam decision on the Quinto & Tolentino v. COMELEC, had the effect of keeping those people in power who have more in law.

Long before the Quinto & Tolentino case was filed, President Gloria Macapagal Arroyo has been reported traveling repeatedly to her hometown of Lubao in Pampanga, fueling speculations that she was running for Congress in her district.

Because Vice President Noli De Castro is either taking Mrs. Arroyo’s sorties to her hometown for granted or is not a greedy type, Mr. De Castro never tested the waters by challenging the constitutionality of the 2007 Republic Act No. 9369 that amended R.A. No. 8436 passed in 1997 that provides for an “automatic resignation of elective officials upon the filing of their certificates of candidacies (CoC) for any office other than that which they hold in a permanent capacity or for President or Vice President.”

DE CASTRO SHOULD HAVE FILED A CASE

B ecause Vice President De Castro had no plans to run for office, he would have a vested interest in filing a case not only because he will be mostly benefited but also because he will automatically become the President because Arroyo will be deemed resigned as President as soon as she filed her COC for Congress. That is, if he succeeded in questioning the constitutionality of R.A. 9369.

But that will be a little bit too late right now as the Supreme Court ruled in favor of Quinto & Tolentino that tangentially affected the stand of De Castro in an obiter dictum-like ruling.

An obiter dictum (Latin for “said by the way”) is an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding. But because of the unanimous ruling held in the Quinto & Tolentino, it will be very hard for Mr. De Castro to secure a reconsideration of the Quinto & Tolentino ruling.

When President Arroyo was going back and forth to her hometown, it would not have been premature for Mr. De Castro to ask the Supreme Court to declare unconstitutional R. A. 9369.

If the Office of the Solicitor General that represented the COMELEC used the argument in Quinto & Tolentino against Mr. De Castro that they “have no legal standing to institute the suit” because they have not yet filed their CoC’s as of their October filing, hence they are not yet affected by the assailed provision in the COMELEC resolution, then, the Supreme Court will use the same reasoning in entertaining the Quinto & Tolentino in the hypothetical De Castro case because of the “transcendental nature and paramount importance  of the issues raised and the compelling state interest involved in their early resolution…” of the case.

Because Noli de Castro did not run for office, he would have automatically assumed the presidency as Gloria Arroyo is deemed resigned when she filed her certificate of candidacy for Congress as the Supreme Court will be compelled to rule for those who are less in life, not like Arroyo, who has obviously more in law. – Joseph G. Lariosa

DE CASTRO COULD USE QUINTO ARGUMENT

T he Supreme Court said, “the period for the filing of CoCs for the 2010 elections has already started and hundreds of civil servants intending to run for elective offices are to lose their employment, thereby, causing imminent and irreparable damage to their means of livelihood and, at the same time, crippling the government’s manpower—further dictate that the Court must, for propriety, if only from a sense of obligation, entertain the petition so as to expedite the adjudication of all, especially the constitutional, issues.”

Quinto and Tolentino asked the Supreme Court to rule on the conflicting provision COMELEC issued in Resolution No. 8678, which provides:

·        “SEC. 4. Effects of Filing Certificates of Candidacy.—a) Any person holding a public appointive office or position including active members of the Armed Forces of the Philippines, and other officers and employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

o       b) Any person holding an elective office or position shall not be considered resigned upon the filing of his certificate of candidacy for the same or any other elective office or position.”

In declaring “Section 4a” unconstitutional, because it violates the “equal-protection clause,” the Supreme Court said, “whether one holds an appointive office or an elective one, the evils (the use of a governmental position to promote one’s candidacy, or even to wield a dangerous or coercive influence on the electorate) sought to be prevented by the measure remain.

SC COULD HAVE TURNED TABLE ON ARROYO

U nder the present state of our law, "the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.”

Had Mr. Vice President De Castro sued and used the arguments above against President Arroyo, I’m sure the Supreme Court will be finding for De Castro because Arroyo will be accused of the “evils sought to be prevented by the measure.”

Because Mr. De Castro did not run for office, he would have automatically assumed the presidency as Arroyo is deemed resigned when she filed her CoC for Congress as the Supreme Court will be compelled to rule for those who are less in life, not like Arroyo, who has obviously more in law. (lariosa_jos@sbcglobal.net)

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