Right of minority representation in local Philippine legislative bodies

International Parliamentary UnionRight of minority representation in legislative bodiesImage via Wikipedia

By Rey Cartojano
After partisan politics was supposed to be settled in the last May 10 elections, the next order of the day especially for local officials is the process of formulating and passing ordinances and other legislative work.
Section 50 of the Local Government Code sets the tone of this process by requiring the concerned legislative body, or Sanggunian, to adopt or update its existing internal rules of procedure starting its first regular session and within ninety (90) days thereafter. The adoption or updating of the internal rules of procedure is a critical process in local legislative work as it prescribes assignments in chairmanships and memberships of committees where most legislative work take place.  In addition, the internal rules of procedure can decisively prescribe the manner on how local legislative business will be conducted especially to favor the dominant political party or grouping.
A question of controversial impression is whether the internal rules of procedure can prescribe the process of appointments of committee chairmanships and memberships to favor only a dominant political party or grouping.  Stated directly, is it legal and in accordance with parliamentary practice to limit chairmanship and membership of all committees to the members of a dominant political party?
In answering queries for legal opinions especially covering issues in the interpretation of internal rules of procedures, the Department of Interior and Local Government (DILG) has always outlined the hierarchy of sources of authorities as follows: (1) 1987 Constitution; (2) Laws, especially the Local Government Code; (3) Court decisions; (4) Internal Rules of Procedures of the concerned Sanggunian; and (5) Parliamentary customs, usage and authors.
Suffice it to state at this stage that in international parliamentary customs and usage, and even bolstered by multitude of scholars and authors, the rule is settled that in a parliamentary set-up working through many committees, apportionment of committee chairmanships and memberships is allocated in proportion to the percentage of minority representatives vis-a-vis the total elected representatives. In fact, this formula is even followed by the present Philippine Congress in the distribution of committee assignments, which means that a congressman coming from minority parties and groups is always assured of a committee assignment, with or without him asking for it.
If we follow the hierarchy of authorities stated in many DILG legal opinions, it seems that minority representation in local legislative committees is doomed if the internal rules of procedure will favor committee appointments of chairmen and members highly dependent on the will of the majority, as the Philippine Constitution, laws and court decisions which are supposed to occupy higher level of authorities on the matter on minority representation do not yet have a clear coverage and resolution.
However, the International Parliamentary Union (IPU), a global organization of various state parliaments of which the Philippines is a member, cited Article 25 of the International Convention on Civil and Political Rights, which the Philippines ratified last 1986, on the right of the citizens to be heard through their elected representatives.  The right of the citizens to be heard through their elected representatives is interpreted to include the right of the said representatives to be given fair representation in parliamentary committees, which almost all parliaments in the world already are adopting.
By the doctrine of incorporation found in Article 2, Section 2 of the 1987 Constitution (where the Philippines adopts by incorporation international laws as part of our domestic laws), the International Convention on Civil and Political is already part and parcel of the laws of the land.  As such, then, it is submitted that any internal rules of procedure of any local legislative assembly in the Philippines which infringe on the right of minority political groups to be represented in parliamentary committees, for that matter, is not only illegal but not in accordance with internationally accepted parliamentary customs and practices.
At the end of the day, representative democracy is not all about what the majority wills government to be as it is about giving the right of other elected representatives to be heard, participate and check the process of legislation. 
 

What happens to PNRC after Liban v. Gordon

Image via Wikipedia

Liban v. Gordon
By Atty. Rey Cartojano

The recent ruling of the Supreme Court in Liban vs. Gordon raises many problematic issues concerning the fate of the Red Cross movement in the Philippines.

The Supreme Court in a 7-5 ruling justified the holding by Senator Richard Gordon of the Chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC) by nullifying almost all provisions of Republic Act No. 95, as amended, otherwise known as the PNRC Charter.

Reversing its earlier position in earlier cases that PNRC is a government- owned or controlled corporation, the Supreme Court through Associate Justice Antonio Carpio found that PNRC is a “privately owned, privately funded, and privately run charitable organization”, and as such, the PNRC Charter passed by Congress suffers constitutional infirmity in the light of Article XII, Section 16 prohibiting Congress from passing a special law creating private corporations.

Had the Supreme Court found that PNRC is a public corporation, or a government-owned or controlled corporation as enunciated its earlier decisions, Senator Gordon could have forfeited his Senate seat in the light of Artice VI, Section 13 of the Constitution prohibiting members of Congress from holding office in government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during their term without forfeiting their seats.

But the majority ruling raises more questions than answers.

In a strong dissenting opinion, Associate Justice Antonio Eduardo Nachura, concurred in by four (4) other Justices, maintained that Senator Gordon violates the Constitution by holding the chairmanship of the Board of Governors of the Philippine National Red Cross (PNRC) as the latter is a government-owned or controlled corporation, if not a government instrumentality.

The dissenting opinion faulted the majority in its sole reliance of categorizing a corporation as government-owned or controlled through the literal control test, especially in the 51% control of capital stock in case of stock corporations, as defined in Section 2(13) of Executive Order No. 292, otherwise known as the Administrative Code of 1987, as the said provision provides further a qualification that a GOCC may be categorized “for purposes of the exercise and discharge of their respective powers, functions and responsibilities”.

In fine, the dissenting opinion said that “a GOCC may either be a stock or non-stock corporation, or that it ‘may be further categorized’, suggesting that the definition provided in the Administrative Code is broad enough to admit of other distinctions as to the kinds of GOCCs”.

The dissenting opinion said that PNRC is at the very least a government instrumentality, citing Section 2(10) of Executive Order No. 292, to wit:

Instrumentality refers to any agency of the National Government not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.
There is information that a motion for reconsideration is being considered to be filed with the Supreme Court. A change of heart of one Justice will reverse the tide against Senator Gordon, as there will be a deadlock in the High Court, thus paving for the possibility that the PNRC Charter will be upheld as constitutional, as there is always the presumption of the constitutionality of congressional enactments in cases of deadlocks in Supreme Court rulings.

Not only that, the appointment of two (2) additional Justices in the High Tribunal will change the voting alignments, as there is that possibility of another deadlock even assuming that the present majority of seven (7) Justices will stick to their positions.

Assuming that the present Supreme Court ruling will be sustained, we have problematic scenarios for the Philippine Red Cross movement.

First, the PNRC organization as defined in Republic Act No. 95 will be dissolved, as a necessary consequence of the ruling that its Charter is null and void.

Second, the Board of Governors as constituted under the PNRC Charter will also be dissolved, putting in a possible state of hiatus and confusion the management and operations of the PNRC.

An interesting question is whether or not the existing Board of Governors, as constituted, can continue governing the operations of the ‘un-chartered or unincorporated’ PNRC, especially in the light of the fact that some of its members are appointees of the President. Can the Chapters call an organizational meeting to reconstitute a new Board of Governors?

A new and recent twist is the pending Senate Bill No. 3285 and House Bill No. 6509 which both propose to amend Republic Act No. 95, or the PNRC Charter.

At the outset, the passage of the new Red Cross bill will suffer the same fate as Republic Act No. 95 if we assume the reasoning of the majority in the Liban v. Gordon case, as many will consider the new Red Cross bill as an exercise in futility. But on second thought, is it really an exercise in futility? There is the view that even with the affirmation of the majority ruling by the Supreme Court, it will take possibly years for the Supreme Court to declare again this new Red Cross law as unconstitutional, and there is always that possibility that the High Court may again change its position depending on the changes in the composition of the Justices.

Another complication in all these legal discussions is the effect of the scenarios on the fate of Senator Gordon as Chairman of the Board of Governors of the PNRC. Senator Gordon, a declared candidate for President in the 2010 elections, appears to be consolidating his hold on the PNRC through his open support of the proposed new Red Cross bill, but this has serious back lash on many Red Cross stakeholders who are not in conformity with how Senator Gordon has politicized an organization that is supposed to be independent, neutral and apolitical.

The final resolution of Liban vs. Gordon may still provide the chance to put an end to the perceived growing politicization of Red Cross if and when the Supreme Court will have a change of heart and consider PNRC as a government-owned or controlled corporation, or a government instrumentality.

The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs

Image via Wikipedia

“In this corner, Round 1:
The Cheap Medicines Act wins against the Special Law on Counterfeit Drugs”
By Atty. Ping Peria

The recent Supreme Court (SC) decision in G.R. 149907, in Roma Drug and Romeo Rodriguez v. The Regional Trial Court of Guagua, Pampanga, the Provincial Prosecutor of Pampanga, Bureau of Food and Drugs and Glaxo Smith Kline has shown the possibilities of the almost a year old Cheap Medicines Act (Republic Act 9502) in legitimating actions that will effectively bring down the prices of medicines in the country, this on the eve of the one-year anniversary of the said law signed by President GMA last 6 June 2008.

The SC decision has not yet been appealed by the losing sides and Marvin A. Tort of Business Mirror (May 15-16, 2009) opined this may result in unscupulous retailers directly importing near-expiry drugs or medicines that are cheap and pass this on to the public for profit. While the concern is valid though completely unsupported by proof that such had actually happened, there are broad implications of the Supreme Court decision that indicates the case may just be an opening round of what may eventually become a highly-contentious area of litigation between the general public and the pharmaceutical industry. Where are the government agencies in this dispute? They will be forced to choose between taking the side of the public and uphold the Cheap Medicines Act or side with the multinational corporations who will also fight hard to maintain their prerogatives promoted by the Special Law on Counterfeit Drugs, the law which was effectively sidelined but not nullified by the SC decision..

Justice Tinga, the ponente or the writer of the decision, was a gifted law student and a bar topnotcher and he was previously a Congressman before he was appointed to the bench in 2003. He was presented, at first glance, a most momentous of cases in a magistrate's life, on whether to invalidate a law on the ground that it violates the Constitution. Being more of a politician than a jurist, he was trying to be friendly to all sides while attempting to do his duty to do justice.

Had he been concerned with fostering clear guidelines to aid future litigation on these types of cases and cement his legacy as a remarkable Justice in the highest Court of the land, he could have ruled on the constitutional law issues raised by the drugstore owner, such as the following :
1) whether the Special Law on Counterfeit Drugs violates the equal protection clause of the Constitution, the legal principle which states that every one is equal before the law and there shall be no special treatment of subject matter which is not properly classified;
2) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 11, Article XIII which calls on the State to make essential goods, health and other social services available to all people at affordable cost;
3) whether the Special Law on Counterfeit Drugs violate the mandate of the Constitution in sec. 15, Article II which states that it is the policy of the State to protect and promote the right to health of the people and instill health consciousness among them.

Too bad, there is case law which says that if a court can decide a case avoiding the constitutional issues raised, the court will take the path of least resistance and go for the easier route. This is because courts are reluctant to overrule the will of the legislator, in this case, those who passed the law, as they are deemed to be full of wisdom, they being the representatives of the people and the laws they have passed are presumed valid and in accord with the Constitution.

In a legal sleight-of-hand, the SC here waved aside those weighty constitutional law issues and declared them moot as there is another law which must be taken into account, the Cheap Medicines Act, passed in 2008. Remember that this case got started in the year 2000, when the government agencies raided the store of Petitioner Roma Drug in Pampanga.

So, does this mean that being a social legislation at the same time, the Cheap Medicines Act can just look at certain acts, even if it had happened in the past, and declare such acts invalid ?The SC did not give such explicit guidance, but illustrated how a law protecting the rights of a broader set of people might be applied, by quoting the provisions of the law in the decision and saying all these provisions apply.

Thus, the Supreme Court avoided a messier result in constitutional litigation, that of nullifying the Special Law on Counterfeit Drugs, a law which was passed through the aggressive lobbying efforts of the pharmaceutical industry in the Philippines. Perhaps Justice Tinga was concerned about the howl that may result had he penned his valedictory ponencia differently, but he said quite a mouthful about the said law being a “heartless, soulless legislative piece”. Lawyers will not take this to heart even if it may please most public health advocates, as such statement is devoid of legal meaning, it is what is called in law school, obiter, or an aside. It sounded more like playing to the audience or the gallery, this populist piece of rhetoric in the SC decision.

What happens now with this result? This establishes a precedent which, if it does not get modified and further qualified after the motion for reconsideration which in all likelihood may be filed by the losing side in this case, will most likely affect the following :
1) the prosecution and trial of similar cases under the same provisions of the Special Law on Counterfeit Drugs which face possible dismissal based on this decision, if their counsels would find it fit to identify and use the precedent of this case;
2) the 2001 case filed by the grouping of multinational drug companies in the Philippines, the Pharmaceutical and Healthcare Association of the Philippines (PHAP), against the Department of Health on parallel importation, still currently undergoing litigation in a Makati trial court, should now be dismissed with the legal principle enunciated in this case though it is up to the Office of the Solicitor-General to make such assertion in such a way that may not contradict its position in cases involving the Special Law on Counterfeit Drugs which it may have also sought to uphold;
3) The current debates in Congress on the pending BFAD Charter amendments, where the concept of “misbranding” is undergoing deliberation - there are those who argue that “misbranding” should also refer to intellectual property rights (IPR)-related cases which will bring back the problem of linkage where the BFAD will resolve IPR-related cases which is outside its competence; advocates for the Special Law on Counterfeit Drugs might just explicitly state in this BFAD Charter amendment that the law on parallel importation which has been liberalized by the Cheap Medicines Act, might just have to take into account what are “counterfeit” drugs, which in effect will limit the reach of the Cheap Medicines Act, using the procedural justification used by Justice Tinga in this case, which is the what happens when a law on a similar topic is passed affecting a previous law also dealing with the same topic.

Just the same, this emerging area of litigation for public health advocates bears close watching in the years to come and the key question is : on whose side will our government agencies be in the future ? The answer to this will be revealed in the next set of cases around these issues.
oOo