Sad day for the poor

April 2, 2013, is a sad day for the poor and powerless. On that day, our Supreme Court in Atong Paglaum vs Comelec decreed that the party-list system may now be invaded by the privileged and powerful. It is no longer the sacred domain of the marginalized and underrepresented.

Reversal of doctrine. The Court reversed its 12-year ruling in Ang Bagong Bayani vs Comelec (June 26, 2001) that “the law crafted to address the peculiar disadvantages of the Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park.”

This decision—which I had the honor of writing for the Court—rhapsodized, “The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them… Thus, allowing all individuals and groups including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize this social justice mechanism into an atrocious veneer for traditional politics.” Notably, Chief Justice Hilario G. Davide Jr., a member of the Constitutional Commission, concurred.

Nonetheless, the Commission on Elections was spotty and mindless in enforcing this clear ruling. It allowed several unqualified groups to participate and win in the party-list elections.

This Comelec spottiness reached the Supreme Court in Banat vs Comelec (April 21, 2009) after I had retired. But my successor, Chief Justice Reynato S. Puno, took up the cudgels: “Today, less than a decade after [the Court decided the first case], there is an attempt to undo the democratic victory achieved by the marginalized… in Ang Bagong Bayani.”

Arguing that “[w]e stand on solid grounds when we interpret the Constitution to give utmost deference to the democratic sympathies, ideals and aspirations of our people,” he won the battle for the marginalized but only with the slimmest margin at 8-7. He warned:

“If we allow major political parties to participate in the party-list system electoral process, we will surely suffocate the voice of the marginalized, frustrate their sovereignty and betray the democratic spirit of the Constitution. That opinion will serve as the graveyard of the party-list system.”

Decision and dissent. I am afraid this April 2 decision is the graveyard dreaded by CJ Puno. Senior Justice Antonio T. Carpio, writer of Atong Paglaum, convinced the majority of his colleagues—something he failed to do four years ago in Banat—that the “the party-list system is intended to democratize political power by giving political parties that cannot win in legislative district elections a chance to win seats in the House of Representatives.”

In other words, the party-list is not a social justice tool, but only an electoral measure to enable losers in district elections to sit in Congress via a national poll. Hence, he said it should be open to all, including giant political parties that already dominate elections.

Justice Carpio relied on the “discussions among the framers of the 1987 Constitution,” which did not expressly and indefinitely reserve the party-list to the marginalized and underrepresented. Moreover, the Party-list Law (RA 7941) mentioned “marginalized and underrepresented” only once in its declaration of policy.

Chief Justice Maria Lourdes P. A. Sereno dissented, saying: “Ang Bagong Bayani should be upheld, not reversed.” She argued that the Carpio  ponencia  “may have further marginalized the already marginalized and underrepresented… The party-list system… is not about mere political plurality, but plurality with a heart for the poor and disadvantaged.”

Citing revered Justice Cecilia Muñoz-Palma, president of the Constitutional Commission, CJ Sereno stressed that the noble goal of the 1987 Charter was “to establish a just and humane society… to reach out to the underprivileged, the paupers, the sick, the elderly, the disabled… social justice was the underlying philosophy of the drafters.”

Great divide. The clash on the party-list shows the great divide in interpreting constitutions and laws. Should they be read according “to the letter that killeth or to the spirit that giveth life”? Should they be construed on the basis of their text and words, or on their underlying rationale and philosophy? Should the Constitution be understood strictly on what its framers originally intended, or liberally taking into account the ever changing economic, social and political milieu?

The textualists or originalists interpret according to the original intent of the framers, regardless of the dire consequences on current and future events. They rely on “dura  lex  sed  lex.” Their self-imposed duty is “to apply laws faithfully and desist from engaging in socioeconomic or political experimentations,” which they denounce as “judicial legislation.”

On the other hand, the liberals or progressives believe in a living Constitution; one that grows with time, solves the vagaries of the present, and anticipates the needs of the future. Chief Justices Davide, Puno, Sereno and I belong to this latter group who believe that jurists are not mere social technicians and legal automatons. Rather, they are social engineers who courageously fix their gaze on the underlying principles and overarching aspirations of the Constitution to nurture a free and prosperous nation.

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