Message Board
Friday, January 22, 2010
Tuesday, January 19, 2010
An end to Midnight Appointments
(Excerpts)
x x x x x
It is important to remember that the prohibition against appointments two months before apresidential election until the end of the incumbent’s term was inspired by the reprobation by theSupreme Court of President Garcia’s scandalous “midnight appointments” before President Diosdado Macapagal assumed office.
But the prohibition against midnight appointments in Article VII is general, whereas the command in Article VIII to fill the vacancy in 90 days is special to the Supreme Court. An accepted principle is that a special law creates exception to a general law.
But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive.
However, when laws are apparently in conflict, jurisprudence also says that efforts should be made to give effect to both when possible. Is reconciliation possible?
Yes, it is possible. The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until Aug. 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.
The original period proposed for filling vacancy in the Supreme Court was 60 days; it was extended to 90 days without debate. [See Constitutional Commission deliberations. ] Thus even the Constitution believes that the vacancy can wait 90 days. There is no rush to amend the Constitution now.
Moreover, according to the Aytona case (1962) and the Valenzuela case (1998), when the president-elect is known, the authority of the incumbent is only to ensure an orderly transfer of power. Call it an argument from morality or delicadeza. Under the automated elections, we should know who the next President will be by May 17 or soon after.
The power to appoint is activated only when a vacancy occurs. Vacancy will occur only on May 17. But by then President Arroyo will only have power to make temporary appointments in the executive department. (Speaker Nograles’ contrary view is a premature attempt to amend the Constitution. )
Appointment is a two-way street: it involves offer and acceptance. A justice who accepts a prohibited appointment is complicit in the violation of the prohibition and opens himself or herself to impeachment for culpable violation of the Constitution.
Appointment to fill an anticipated vacancy is valid only if the person making the appointment still has the power when the vacancy occurs.
The President can appoint only from a list given by the JBC. Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC.
The JBC is duty-bound to submit a list, but only when there is a vacancy, not necessarily sooner.
However, the JBC has no authority to decide whether Arroyo can appoint or not. The JBC can only prepare a list for whoever has authority to appoint. The JBC is not the Supreme Court.
In substantive issues, the chief justice has only one vote out of 15. In administrative matters, the CJ’s absence can be handled, and has always been handled, internally by the other justices of the Supreme Court through a designated temporary presiding officer. To say that the 14 remaining justices will not be able to temporarily run the Supreme Court properly without a chief justice is to insult all of them, one of whom will almost certainly be the next chief justice.
Problems that can arise during the coming elections do not necessarily need a chief justice. (1) Administrative matters go to the Comelec first. (2) Contests in local elections go to local courts first or to the Commission on Elections. (3) Contests in congressional elections go to the Senate or House Electoral Tribunals where a chief justice does not participate. (4) Presidential election contests go to the Supreme Court; but the Chief Justice is not the Supreme Court. At most his is only one vote out of 15. (5) The same can be said about appeals to the SC of election cases. The quorum of the Court en banc is only eight, not 15.
The only instance I can think of where the presence of the chief justice might be indispensable is when the President is on trial on impeachment. But I cannot see that coming any time soon.
What is dangerous for the nation is not the temporary absence of a chief justice but the possible conversion of the Supreme Court into a play-thing of political powers. The Supreme Court itself should resist this. The Supreme Court boat is already listing, weighted as it is by, among others, threatening endless reconsideration of decisions.
My suspicion arising from all of this is that the rush to appoint a chief justice before the swearing in of a new President is being orchestrated, out of unfounded fears or unstated political reasons, by forces in and around the Palace.
A final word. Those who want President Arroyo to appoint the next chief justice might attempt to persuade CJ Puno to retire much earlier than two months before the elections. That would not be a solomonic solution but an unwelcome political solution. I doubt, though, that CJ Puno would want to leave that as his legacy after a distinguished career in law.
Monday, January 18, 2010
Perron Campaigns Election Update: The election fever is on!
Dear friends, peers and colleagues
With the elections less than four months away, the election fever is definitely on. As all surveys indicate, Noynoy Aquino is the frontrunner for the presidential election. Voters like him and his family for their clean image. This being said, unless a candidate is running unopposed, everybody is beatable. Especially in a presidential election, three months is an eternity. Exactly six years ago, three months before the 2004 presidential election, FPJ was still the clear frontrunner in all the surveys and GMA had just overtaken Roco for second place. Also, in a way, the sudden arrival of Noynoy a few months ago also shows how volatile this race still is. Some of his supporters are probably joining a bandwagon and could still change their minds. The challenge for Noynoy will be to answer the questions about his record and readiness.
Since Manny Villar is running behind, he has to do something to change the dynamics of the race. An election campaign is about showing differences. But how do you show differences with somebody who has a skyrocketing approval rating? That’s Villar’s challenge. Ironically, Barack Obama’s campaign could be an inspiration to both, Aquino and Villar. On the one hand, Obama ran against somebody much more experienced and had to answer questions about his readiness. On the other hand, he also ran 20% behind Hillary for a long time. It was only a few weeks before the first caucus in Iowawhen he started to pick up.
Joseph Estrada clearly has a very loyal base of supporters who would swim to China with him. In 2007, many candidates endorsed by Estrada won. Once the disqualification issue is resolved, it will definitely give some momentum to the campaign as it fits the Robin Hood image of Erap. His challenge is to convince the broad middle class to give him a second chance.
I would not write off Gilbert Teodoro and Dick Gordon entirely, but they need big, bold steps to get into the game. The challenge for Teodoro is clearly that he has to defend the incumbent administration in a way that is not turning off voters. Also, local machinery has a limited impact, especially in a nationwide campaign. It is necessary to protect the votes but it can only generate votes to a limited extent. Remember the 2007 elections? Only three Team Unity candidates made it to the Senate, while Honasan and Trillanes also made it. So much for the wonders of local machinery in a nationwide campaign (in fact, even at the local level, the capacity of machinery to generate votes is over-estimated. It can mostly protect votes only).
Don’t underestimate the forums and debates!
In 2004 and 2007, the big new thing in Philippine election campaigns were the paid tv ads. Candidates who made smart use of it, could improve their standing dramatically.The big new thing in 2010 are the televised forums and debates. Since the media is not only showing them live but also reports about the outcome of the debates, they reach a broad audience. Voters appreciate it because it’s the only opportunity to compare the candidates and to see them next to each other. It works best for candidates who are young and articulate. In my opinion, the debates are the reason why Gilbert Teodoro is slowly improving his standing. It is not yet enough to really translate into votes, but people become less negative about him. On the other hand, it hurts those who are absent or perform badly.
The same is true for vice-presidential and senatorial candidates. Once there will be debates for them, they are well advised to invest enough time into comprehensive debate preparation. Of course, this does not mean that the paid ads have become obsolete. The importance of the debates comes in addition to the ads. Also, as of now, we have not yet seen a knock-out ad. In terms of the message, all presidential ads are basically doing the same thing. This explains why none is getting a big boost out of the millions spent on them.
The race for vice president
Talking about ads that don’t connect with voters, Mar Roxas is an example. All the ads that he aired during the entire 2009 did not help him much. It’s much more the fact that he was giving in to Noynoy, the LP ticket and the way he played it out (and the tv coverage that came with it) that made him the frontrunner for the Vice Presidential run. This being said, Loren Legarda can give him a good run for the money. She has a history of coming from behind. In 2004, she started way behind Noli de Castro and was able to catch up significantly. Also, the typhoons of the past months have illustrated to average voters why the environmental issue matters.
The way I see it, Jojo Binay is running the best ad campaign of this election cycle: the campaign has a clear, appealing and believable message with content (namely his record as Mayor of Makati), the ads are well-executed and he is investing enough money into a serious time buy. This is the reason why he has improved a lot in all parts of the country. In most cases, a good ad campaign is enough to get a candidate to the Senate. So I wonder, why go for a difficult vice-presidential run if you are almost a shoo-in for the Senate?
The race for the Senate
The race for the Senate is even more volatile than the ones for president and vice president. Surveys that are taken months before the election usually have a bias in favour of established names. For many known names, the ratings reflect awareness much more than real support. At the end of 2006, Ralph Recto, Vicente Sotto and Koko Pimentel were all in the winning twelve, but ended up losing. Unless they take big, bold action, I expect Recto, Sotto and Lapid to lose ranks. Bong Revilla, Jinggoy Estradaand Franklin Drilon will make it back to the Senate, but the road will be harder than what it looks like right now. As for the new candidates, the strategy is to put together a well-researched ad campaign that communicates a credible and believable message. Carry it out with discipline and do well in the debates. In 2004, Mar Roxas,Jamby Madrigal and Dick Gordon were all outside of the winning twelve at the beginning of the year. They all made it on Election Day. The February and March surveys will be interesting to watch in this respect. Let’s look forward to exciting months in Philippine politics.
Do you find these points interesting? Let us know your opinion. Call, email (lperron@perroncampaigns.com) or txt (09173322900) us!
News about Perron Campaigns and Dr. des. Louis Perron:
· Perron Campaigns is becoming ever more global. We were involved in the last German elections (on the winning side!) and now have clients in the UK and Romania .
· I published a rather scientific article about Philippine elections in the German Journal for Political Consulting. If you wish to get a free copy of this article, kindly email us at (ktmayo@perroncampaigns.com).
Kind regards
Louis Perron
(C) Copyright, Perron Campaigns, Louis Perron, 2010.
Perron Campaigns
Dr. des. Louis Perron
Seefeldstr. 69
8008 Zürich
Switzerland
Phone: ++41 43 488 37 20
Fax: ++41 43 488 35 00
Cell: ++41 76 575 56 84
There are three simple steps to winning every campaign: 1) Decide what you are going to say; 2) Decide how and to whom you are going to say it; and 3) say it - Joseph Napolitan.
Sunday, January 17, 2010
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