Senators as judges

THE RULING that Sen. Grace Poe is a natural-born Filipino trains the spotlight on the government body that issued it: the Senate Electoral Tribunal (SET).

The nature of the SET should be examined in the context of our form of government, whose main feature is the separation of powers among its legislative, judicial and executive branches. Under this framework of government, lawmakers create the law, judges interpret the law, and executive officials implement the law.

As a general rule, a public official belonging to one branch cannot exercise powers belonging to another branch; otherwise, the official will be declared to have acted without jurisdiction. In fact, even if a public official acts within the powers of his or her branch, but if the use of such powers is gravely wrong, the official may be declared as having committed grave abuse of discretion amounting to lack of jurisdiction.

But there are instances when public officials permanently belonging to one branch are assigned to serve an additional position in a different branch. Hence, we have government bodies with “hybrid” members belonging to different branches of the government.

To illustrate: The Chief Justice and a member of Congress, along with officials of the executive branch and representatives of the private sector, are members of the Judicial and Bar Council, performing largely executive functions of screening and nominating to the President

appointments to the judiciary. And a senator and a congressperson are performing essentially executive functions as members of the University of the Philippines Board of Regents.

The SET is another government entity with hybrid members consisting of six senators and three Supreme Court justices. Then there is the House of Representatives Electoral Tribunal (HRET) with six congresspersons and three Supreme Court justices as members.

While it has a mix of members from the legislature and the judiciary, the SET is tasked by the Constitution to exercise judicial functions by deciding all cases pertaining to the “election, returns, and qualifications of the Members of Senate.”

In all government entities with hybrid members, each member must act pursuant to the nature and powers of the hybrid entity. The members will be declared to have acted without jurisdiction if they act pursuant to the powers of the different branch to which they permanently belong. A public official who occupies multiple public positions cannot discharge his or her duties in one position by using the powers belonging to his or her other position.

The case of Pia Cayetano provides a perfect illustration because she wields legislative powers as a senator, discharges executive duties as a member of the UP Board of Regents, and exercises judicial functions as a member of the SET. She cannot perform her legislative duties by using her judicial powers as a SET member, nor can she discharge her judicial functions as a SET member by using her legislative powers as a senator.

In the case of Lerias vs HRET (1991), which involved allegations of tampered election results, the Supreme Court clarified the role of politicians in electoral tribunals (SET and HRET). Five congresspersons voted in favor of candidate Roger Mercado, while all three Supreme Court justices and one congressperson voted in favor of rival candidate Rosette Lerias. The voting pattern in the Lerias case is eerily similar to the voting pattern in the Poe case.

When the Lerias case was elevated to the Supreme Court, it reversed the ruling of the five congresspersons by declaring that there was grave abuse of discretion amounting to lack of jurisdiction in the majority decision. The high court adopted the dissenting opinion of the three justices and one congressperson, and declared that “[p]oliticians who are members of electoral tribunals must think and act like judges, accordingly, they must resolve election controversies with judicial, not political, integrity.” It declared Lerias the duly elected congresswoman of Southern Leyte.

The senator-members of the current SET are Vicente Sotto III, Pia Cayetano, Loren Legarda, Cynthia Villar, Paolo Benigno Aquino IV and Nancy Binay. When they participated in the SET proceedings to hear the disqualification case against Poe, they had to metaphorically remove their legislative hats and don judicial hats. In other words, they were mandated to act as judges by interpreting the existing law, and not as lawmakers who discretely create a new law disguised as a judicial ruling.

Using that framework as guide in analyzing the SET majority decision and the concurring opinions, we can examine if the senator-members indeed donned their judicial hats, or if they continued to wear their legislative hats when they decided the case in Poe’s favor. We can also examine whether the senator-members, as judicial officials, acted within their jurisdiction, acted without jurisdiction, or acted in grave abuse of discretion amounting to lack of jurisdiction.

The justifications of the five senator-members who voted in Poe’s favor can be classified into these four categories: First, it is unfair to deprive foundlings of natural-born Filipino citizenship; second, the voice of the people as expressed when they elected Poe to the Senate validated her qualification as senator; third, Poe enjoys the presumption of being a natural-born Filipino, and no contrary evidence was presented to overturn the presumption; and fourth, both constitutional law and international law that were applicable when Poe was born consider foundlings to be natural-born Filipinos.

Next week, we will examine the ruling justifications under the framework we have discussed.

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