Sunday, January 9, 2011

Appointing Election Losers After the One-Year Election Ban

CURRENT LEGAL CONCERNS

Elpidio V. Peria
10 January 2011

Appointing Election Losers After the One-Year Election Ban
– Who Loses, Who Wins?

Losing VP Candidate Mar Roxas recently figured in this weekend’s news cycle because President Noynoy Aquino recently indicated he is willing to appoint him as his “trouble-shooter”, what with the lackluster performance of some of his people in Malacanang, with the exception only perhaps of Sec. Leila de Lima, who, among all his appointees, had favorable approval ratings when 2010 ended.

The appointment of Mar brings to the fore a lot of issues, but given that this is already 2011, this will become a regular staple of news items eventually this year, as the lapse of the one-year election ban approaches, and we will more or less get to see what will eventually happen to those Liberal Party candidates or other allies of the President who lost in the May 2010 get appointed to positions in government.

To enable Juan and Juana dela Cruz make sense of where this election ban comes from, and whether will it really work for his or her own good or that of the losing candidate, it may be useful to examine again this ban item and assess who benefits or who loses in the implementation of this legal provision.

The one-year election ban derives from the Local Government Code, specifically in sec. 94 (b) thereof,which states:

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or -controlled corporations or in any of their subsidiaries

So, those who ran in the recent barangay elections in October 2010 and lost is not under a one-year ban from being appointed in Pnoy’s government.

The prohibition is from being appointed to (a) any office in government; (b) any GOCC or (c) any subsidiaries of these GOCCs.

My copy of the Local Government Code dating back from my law-school days show a notation in the provision from the my law professor on the subject, UP College of Law local government law expert. Prof. Samilo Barlongay, who indicated that such prohibition is unconstitutional. I can no longer recall the reason why but consulting the 1987 Constitution indicates that the relevant prohibitions on appointment relate only to : (a) the appointment of elective officials to appointive positions (art. IX, sec. 7); (b) appointive officials being appointed to more than one position (art. IX-B, sec. 7); and (c) members of the armed forces from being appointed to certain positions in government (art. XVI; sec. 5(4).

The one-year election ban appears to have no constitutional basis, though a specific law, the Local Government Code, has provided it. Searching the relevant law websites do not indicate that this issue has been questioned before the Supreme Court thus it subsists, and there is further interpretation on how it may apply given specific facts.

There are policy reasons, however, for the ban, since losing candidates in an election can be recycled immediately after election though the harsh fact is that the public has rejected the fellow for the said elective position, thus, the fellow’s consolation prize is an appointive position. In the US, if they have such an election ban, then Hillary Clinton would not have been appointed Secretary of State by then 2008 US Presidential election winner Barack Obama.

The rationale it seems is to let the losing candidates think twice about getting back to public service so soon, or perhaps not let the losing candidate use his perks from the appointive office to pay back his election debts so soon.

But perhaps the one-year ban may be too short; a ban of two years may already be futile as the year after is already an election year, and the losing candidate may, in all likelihood, just use his position to prepare for another run in public office.

The flipside of doing away with the ban is that the public may no longer be deprived of the sterling qualities of the losing candidates. But the fact that the candidate lost in an election is already an indication of the public’s perception of the person’s fitness to public office. In spite of what the public thinks, all these losers will be appointed anyway, and there are reports that some losing Liberal Party Senatoarial candidates are already throwing their weight in line agencies to which they are in line to assume office come July 1 this year. A year therefore is too short for the ban to be useful in attaining its policy objectives.

So, who wins in the one-year election ban? It seems nobody, except perhaps the losing fellow who eventually will get appointed anyway. But nobody also loses, as the public is not deprived of the services of a person who was already rejected in an election, though. Ultimately, however, this one-year ban should just be done away with, to be replaced by a permanent ban for the duration of the term of office of the appointee. This is to give the chance for all Filipinos to be appointed, and also to strengthen the civil service. It should not be littered by political has-beens and also-rans. No one can be a better judge of fitness for public office, except the voters themselves, for as long as their votes were not bought, but that’s another column, for another day. What will the losers do? Well, with their clout and connections, in the Philippine setting, they can always enter showbiz! In that way, they will be more visible come next election cycle…

oOo

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