Hopes and fears
A LAW EACH DAY (KEEPS TROUBLE AWAY) - Jose C. Sison (The Philippine Star) - November 30, 2018 - 12:00am

More and more people are now getting convinced that Duterte does not consider our Constitution as the basic law of the land by which the “fundamental powers of the government are established, limited and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise, for the benefit of the body politic” (1Schwartz, Powers of Government 1, 1963). Neither does he strictly adhere to constitutional law or the “body of rules resulting from the interpretation by a High Court of a written constitutional instrument in the course of disposing of cases in which the validity of some act of governmental power has been challenged, in relation to the Constitutional instrument.”

The most recent statement of Digong that has apparently caused people to become more convinced on this matter, involves the constitutional principle of the “Separation of Church and State which shall be inviolable” (Section 6, Article II). Of course there have been so many statements, insults and invectives he publicly uttered before against the Church, her leaders including the Pope and even God Himself which are in violation of this principle. But this time, he even claimed that “churches” are not necessary in the practice of his religion. Obviously he is referring here to the religious structures or buildings and shrines where faithful congregate to pray and worship God. As political leader, he should not have publicly made such statement because it violates the free exercise of religion. Religion must be insulated from politics in much the same way that the political process is insulated from religion. Freedom to believe or to adhere to religious organizations or form of worship should be insulated from politics. This is the essence of the principle of separation of Church and State. There must be a “wall of separation between Church and State.”

Indeed even his recent attack against a bishop of the Catholic Church whom he accused of spending Church funds or contributions to and/or collections made by the Church, clearly shows that he is disregarding this principle. As Head of the State, he cannot openly or secretly participate in the affairs of any religious organizations or groups. He should not have publicly made such statement. He should just have asked Church leaders to look into the matter and submit whatever proof he has in support of his charges. This is the constitutional stance of a President as the political leader of the country.

Another constitutional principle recently disregarded by Duterte, is Section 28, Article II which provides that “Subject to reasonable conditions prescribed by law, the State adopts a policy of full public disclosure of all its transactions involving public interest.” This policy has not been followed in the 29 Memorandum of Agreements signed between the Philippines and China, during the recent state visit of Chinese President Xi Jinping. People were left in the dark as to the contents of said agreements. Such lack of transparency raised a lot of speculations especially in connection with the oil and gas exploration at the West Philippine Sea regarding the alleged unequal sharing of 60%-40% in favor of China. It was only after their signing and when President Xi Jinping already left the country when their contents were disclosed. And people were somewhat relieved in finding out that the supposed sharing in the oil and gas exploration is not exactly an agreement but only an “understanding” between the two parties. As Foreign Affairs Secretary Teddy Boy Locsin aptly said, it was only an “agreement to agree.”

Then of course, some kind of controversy also arose in connection with the appointment of Justice Lucas Bersamin as the Chief Justice of the Supreme Court to succeed Justice de Castro. To be sure, the controversy is not about the ability and qualification of Justice Bersamin because he is really and evidently qualified for the position especially because of his length of service and extensive experience in the judiciary. Indeed all the Justices recommended by the Judicial and Bar Council (JBC) for appointment as Chief Justice are well qualified. But Duterte’s choice  however still raised some questions because he did not observe the long standing rule of seniority in appointing chief Justices of the SC. Such rule is actually not a Constitutional mandate but it is still observed to ensure the independence of the Judiciary as a separate and equal branch of government. Observing it erases all doubts about a Chief Justice being beholden to and dependent on, the President. This question becomes more relevant and crucial in this case because when Duterte appointed ex-Chief Justice de Castro, he himself said that he would observe the seniority rule. In the appointment of Bersamin, he disregarded this rule because the most senior among the JBC nominees is Justice Antonio Carpio and so a lot of people thought that he was a “shoo-in” for the position.

To be sure and to be fair also, it must be pointed out that Justice Carpio has already withdrawn and previously gave way to Justice De Castro in the appointment to said position. Apparently Carpio, who was then the most senior Justice, thought that Duterte will not appoint him as Chief Justice anyway because they were at odds regarding the West Philippine Sea controversy. Carpio would like to enforce the favorable decision of the UN Arbitrary Tribunal while Duterte did not want such move allegedly because it cannot be done in view of China’s overwhelming force. But when Duterte assured the people that he will follow the seniority rule in the appointment of the next Chief Justice after De Castro, Carpio believed him. Thus he did not withdraw this time anymore.

And so as we go on with this administration, doubts, uncertainties and fears continue to grow as hopes fade away.

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Email: attyjosesison@gmail.com

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