Purging the (party) list

This week I retire this column upon assuming my new responsibilities as Inquirer publisher. I wrote Passion for Reason every week over the past eight years, and was always surprised at how much more Filipinos preferred to find solutions in laws and institutions rather than in themselves. What should make me exalt as a law professor would make me grieve as a citizen. When we abdicate our prerogative to make hard choices, we empower others to decide for us. A free, robust and intelligent press should help the Filipino everyman reclaim the public sphere and, happily for the youth and their computer-savvy elders, recreate that sphere in print and just about every new digital medium that empowers readers to talk back and shout out.

The “counter-majoritarian” tendency is nowhere more evident today than in the Commission on Elections’ purge of bogus party-list groups. In democratic politics, that cleansing should have been carried out by the people themselves seeing through the charade and choosing only bona fide groups to be represented in Congress.

The ultimate perversion of the system was when we allowed Juan Miguel “Mikey” Arroyo, elder son of former President Gloria Macapagal-Arroyo, to represent the security guards of the country. Fortunately for us, the Comelec has now corrected that historical anomaly. Unfortunately, however, the rectification process itself shows us another perversity: the recourse to technicality rather than substance to disqualify the group. It turns out Arroyo’s group, Ang Galing Pinoy, lost by default; the group didn’t show up for the accreditation hearing!

We must confront the fact that we the sovereign people have failed to maintain quality control over the party-list system, and that we are asking the Comelec to perform for us a task it is ill-equipped to do. Given the scale of the cleansing needed, what the party-list system needs is not a purge but a colonic.

We stretch the law to the limit when we pretend that what the Comelec is doing is the technical application of the rules rather than the subtle weighing of value judgments. Of course the law provides some standards for what is a bona fide party-list group. Indeed, Comelec Chair Sixto Brillantes was careful to say that he was merely applying the Supreme Court’s guidelines on which groups are “marginalized and underrepresented.”

But the law doesn’t answer all the questions. For instance, some Bicol-based groups have been excluded yet, if one would not inquire behind their façade, they would comfortably qualify as a “regional political party” under the Party-List System Act. Conversely, the one time the previous Comelec carried out its homophobic bias against Ang Ladlad, it actually invoked a technical, legal ground, namely, that Ang Ladlad was not truthful when it declared that it did not espouse immorality! That is why it is interesting that, thus far, the best explanation for the purge is that the Comelec now applies the rules strictly rather than liberally as in the past.

Moreover, we also confuse the marginalization test as pertaining to a quality of the party rather than of the group it purports to represent. For instance, party-list groups need enough numbers to be viable, and yet some protagonists now say that if those numbers rise too high, they are disqualified. This is a fundamental misunderstanding of the party-list system. Remember that even mainstream political parties are allowed to field candidates in the party-list system! The two systems of district and party-list elections are supposed to exist parallel to one another.

The fact, for instance, that Akbayan members are now well-positioned in government should not disqualify Akbayan as a legitimate party-list group. The real test is whether they have faithfully represented the marginalized groups identified in their party platform. The fact that these groups have consistently given them a mandate in Congress shows that they meet both the quantitative and qualitative requirements for party-list groups.

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I welcome my colleague John Nery’s response to my critique of the Framework Agreement for peace with the Moro Islamic Liberation Front. John rightly says that my concern is, at its core, about language and power. I have spoken of “fudge words” that didn’t really mean anything but which must have been inserted there for a purpose (e.g., “asymmetrical”). He offers alternative interpretations of the Framework’s text that would align it closer to the Constitution and uphold its validity. But in finding yet a newer meaning in the same words, in the exact same text, he only proves my point: The language of the Framework indeed is “slippery,” elastic and disingenuous—so malleable that the words “conceal rather than reveal.”

I recognize that negotiators need some elbowroom to be deliberately ambiguous if that is what peace requires, but they cannot use words too loosely to circumvent what the Constitution mandates. Sure, there are many meanings to which the Framework is susceptible, but how sure are we that, when the time comes, the government’s and John’s preferred reading will prevail over the MILF’s? And if the MILF’s version is the one that is eventually codified into law, the courts can easily defer for as long as that version is not so far-out and outlandish that it amounts to “grave abuse of discretion.” May the Bangsamoro block grants from the central government? Given the Framework’s text, believe me, a court will allow it.

In other words, if indeed there was a language trap here, it is the Filipino people that unwittingly just got snared.