2022 on my mind

Was it the Comelec extensions of voter registration? The year-end surveys of presidentiables that suddenly materialized? This week’s stunning announcement on the Marcos protest? The excitement of a GIBO sighting?

For all these reasons, it is clear that the electoral countdown to 2022 has begun. Whether we welcome it or not, these events have ushered in the fever. It will consume minds hungry for election news or starved for anything to elevate them from the pandemic.

May 2022 is far off but already we accept that only in the best case scenario do we vote old style. Best case means widespread vaccination, herd immunity, the discovery of a cure or the virus becoming endemic. Otherwise, the model of schools or government buildings as polling centers with classrooms as precincts will yield to the new normal. We will be voting in gyms or quadrangles, open air rather than enclosed spaces. Expect longest lines if no extension of voting times.

US style. Inevitably, we deal with the prospect of voting by mail. Given the serious doubts about the capacity of our postal system, the idea is a non-starter for many. Senate President Vicente Sotto III is right that the risk of voter fraud will be disproportionately high.

But there is reason to hope. At this Thursday’s Senate hearing, the Philippine Postal Corporation committed to full computerization by May of this year. This means that tracking systems can be deployed to trace ballots from the time sent to the voter until the same is received by the Comelec. In theory, at least, we will be ready.

The Comelec has also ramped up its credentials. Commissioner Guanzon and Co. have gone digital for voter registration, fielding up to 1.3 new voter applications. The target is 4 million by Sept. 30 with the senators moving to further extend the deadlines. According to PSA data, 15 million new registrants are coming of age by May 2022.

Comelec should be well placed to embrace the technological armor we need to engage with the new.

As for the campaign period, the press-the-flesh personal touch is also unlikely. No more conventional campaign machineries. No more door to door. Campaigns will be more like PR campaigns. The arenas: media and social media. Only the slick will click.

Tug of war. It was around this time last year when a Senate majority (of 13) adopted a resolution in the wake of President Duterte’s termination (his first) of the Visiting Forces Agreement. The tenor was that the same 2/3 vote needed to ratify an international agreement should be observed when abrogating the same. However, that was not the only “tenor” of the senators.

Instead of vehemently objecting to PRRD’s act, the resolution was merely a soft request for him to reconsider.

Semantic antic. Were they just being polite? Maybe so. But whatever their reasons, the tenor did matter. They did locate the gumption to later file suit for declaratory relief. However, as they did not object hard to the abrogation when it happened, the Court may conceivably wash their hands of having to decide, invoking non-justiciability. No need to resort to just the political question doctrine. Had the Senate expressed there and then against the legality of the presidential act, the same way Senator Panfilo Lacson has ardently done, then it would surely be a riper issue for resolution.

Sal loves his tête-à-tetes. At least, Senator Ping has spawned an academic debate that has allowed law professors Harry Roque and Salvador Panelo the opportunity to pontificate. Theirs is the affirmative position. And it is easier because the Constitution only mentions the Senate’s role in concurring in treaties or international agreements. Lacson has the more difficult, negative argument. No constitutional provision requires the same Senate concurrence when withdrawing.

There is actually no textual basis in the Constitution that limits the international relations power to the President. The President’s so called “architectural functions” in foreign policy we hear from the Jeffersons, Hamiltons, Montesquieus and not from the Constitution itself. By definition, the Executive does implement policy but the formulation of the same is really shared with the Legislative.

The President first. What the Executive has in its favor is the treaty making power. It is really his to exercise in the first instance. The classic framework may have both branches shaping foreign policy but the essential power to negotiate is conceded to the President. The Senate only concurs in what the President first endorses. It is not the other way around.

The counter argument for legislative scrutiny is that assuming obligations and exercising appurtenant rights under international agreements involve a matter of national policy. After all, they become part of the law of the land. Just like laws, they should only be undone with the participation of the Legislative chamber that created them.

Panelo doctrine. Prof. Panelo expertly cites even the indirect arguments that bolster the President’s predominant role in treaty making and unmaking. Notably, his is the office assigned to appoint and receive ambassadors. This means his alone is the power to recognize foreign governments and engage in relations with them.

Because of this pre-eminent role in the conduct of foreign affairs, the practice is that the President can opt out of treaties, by himself. The Executive’s functional advantage, as formulated by Justice Sutherland, is intuitive: “He, not Congress, has the better opportunity of knowing the conditions that prevail in foreign countries… He has his agents in the form of diplomatic, consular and other officials…”

In the US experience, the Anti-Ballistic Missile Treaty with the Soviet Union was abrogated by President George W. Bush and the Sino-American Mutual Defense Treaty (MDT) by President Jimmy Carter. Both withdrawals were without Senate concurrence. The US Supreme Court declined to rule on the Senate’s absence in President Carter’s MDT termination, invoking political question grounds.