‘Sword of Damocles’ condemned after Philippines judges oust chief justice

Ousted … Philippines Chief Justice Maria Lourdes Sereno waves to supporters the day she returned to the Supreme Court on May 9, 2018, after two months on leave. Image: Maria Tan/Rappler

By Ralf Rivas in Manila

After the ousting of the Philippines’ Chief Justice Maria Lourdes Sereno, the six justices who voted against the quo warranto petition have claimed the decision has made the Office of the Solicitor-General more powerful.

The justices raised their concern in their separate dissenting opinions following the Supreme Court’s 8-6 unprecedented and historic vote in favour of the petition – a prerogative warrant – on Friday.

Associate Justice Mariano del Castillo wrote in his dissenting opinion that the decision of the majority had granted the Solicitor-General (SolGen) powers to “remake the composition” of the High Court, “causing the removal of its members”.

READ MORE: Quo warranto v elected impeachable allowed, says Supreme Court

“With the SolGen wielding a quo warranto sword of Damocles over the heads of these officers, the Filipino people cannot be assured that they will discharge their constitutional mandate and functions without fear or favor,” said Del Castillo.

Without such assurance, there can be no guarantee that the primordial interest of the sovereign people is promoted.”

-Partners-

Del Castillo called the SolGen’s move a form of “constitutional adventurism”.

The quo warranto petition to remove Sereno from office was on the basis of an alleged invalid appointment.

The decision is “immediately executory without need for further action,” SC spokesperson Theodore Te said during Friday’s press briefing.

‘Violated requirements’
Nine of the justices said she violated requirements on the Statement of Assets, Liabilities, and Net Worth (SALN). The same number of justices ruled that quo warranto was the proper remedy in the ouster of Sereno.

This is the first time that the Supreme Court has removed its own chief, in a petition widely slammed for violating Sereno’s constitutional right to an impeachment process.

Sereno is the second chief justice to be removed from office after Renato Corona was ousted in 2012. He was found guilty of betraying the public trust and committing culpable violation of the Constitution.

Associate Justice Mariano del Castillo’s sentiment was echoed by the dissenting opinions of Associate Justices Marvic Leonen and Benjamin Caguioa.

Lawmakers, including Senate Minority Leaders Franklin Drilon, a former justice secretary, shared the same concern.

The others who voted against the petition are Senior Associate Justice Antonio Carpio and Associate Justices Presbitero Velasco Jr, and Estela Perlas-Bernabe.

Quo warranto or impeachment?
The six dissenters all agreed that impeachment was the only way to unseat an impeachable officer like Sereno.

Del Castillo stressed that allowing the quo warranto proceeding “impairs the independence of constitutional offices”.

Bernabe wrote in her opinion that the OSG should have questioned the discretion of the Judicial and Bar Council (JBC) to include Sereno in the shortlist of chief justice applicants.

Bernabe pointed out that the OSG “voluntarily admitted that the JBC’s grave abuse of discretion is not at all an issue.”

In his dissenting opinion, Velasco relayed the same sentiment.

“There was no attempt to assail and contest much less nullify the JBC’s findings that the respondent possessed all qualifications, the JBC’s decision must stand,” Velasco said.

Yes to quo warranto but…
Velasco said that the “remedy of quo warranto is available to unseat, in the extreme, even an impeachable officer”.

However, he clarified that the one-year prescribed period for filing such a petition had lapsed. He said that Sereno’s nomination and appointment “has not been timely challenged, much less nullified,” and that “the findings and qualifications should be respected.”

Velasco insisted that the OSG had to file a petition for certiorari against the JBC before seeking Sereno’s removal from office.

Bernabe also said that impeachment was not the sole move of removing impeachable officials as it would be “clearly absurd for any of them to remain in office despite their failure to meet the minimum eligibility requirements”.

She said that there “should be a remedy to oust all our public officials, no matter how high-ranking they are, or how critical their functions may be,” but after clear “determination that they have not actually qualified for election or appointment”.

Bernabe stressed that the JBC’s rigorous process was lenient on the Statement of Assets, Liabilities, and Net Worth (SALN) requirement. In fact, none of the applicants were able to submit all SALNs up to 2012.

Despite voting for the retention of Sereno, Bernabe said she made no claim that Sereno “is or is not a person of integrity.”

“In fact, if there is one thing that is glaringly apparent from these proceedings, it is actually the lack of respondent’s candor and forthrightness in the submission of her SALNs. Integrity must be threshed out in the appropriate case for certiorari,” Bernabe said.

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MIL OSI – Source: Evening Report Arts and Media

Review of laws passed by Parliament ‘not in Tongan king’s power’

King Tupou VI … 2010 Constitution “excludes” the King and Privy Council from “governing” the Kingdom. Image: Linny Folau/Matangi Tonga

By Philip Cass of Kaniva News

The King of Tonga has no right to judge the merits of legislation passed by Parliament, according to a New Zealand constitutional legal expert.

Dr Rodney Harrison said that under the 2010 Constitution, review and evaluation of the merits of legislation passed by the General Assembly did not fall within the scope of the king’s powers of sanction and signature.

Dr Harrison said the king had withheld or deferred his signature from a number of pieces of legislation because it was deemed to be inappropriate or unconstitutional.

He said the new Constitution excluded the King and Privy Council from the role of governing the Kingdom.

He said judgements about whether legislation was constitutional went against the doctrine of the separation of powers and the role and independence of the judiciary.

He said the Royal Assent Order 2011, under which the King and Privy Council purported to act, was therefore invalid.

-Partners-

Dr Harrison was asked to give an opinion on the legality of the Royal Assent Order 2011 by the Prime Minister’s Office.

Real problem
However, Dr Harrison said challenging the validity of the Order in court would not solve the real problem, which was the regular deferral or refusal of royal assent for legislation that had been approved by Parliament.

“The underlying problem is not the legal validity of the Royal Assent Order as such,” Dr Harrison said.

“The underlying problem is the view currently held by His Majesty or at least by the Privy Council and, in particular the Law Lords as His advisors, as to the extent of the King’s power to grant or refuse the Royal Assent conferred by Clause 56 of the Constitution.

“It is that in my respectful opinion erroneous view of the King’s constitutional powers that needs to be addressed, hopefully by reasoned persuasion or if not, by judicial ruling.”

Dr Harrison said the old Tongan constitution made it clear that the three arms of government had to be kept separate as a safeguard for the proper running of the country and the safeguarding of the liberties of its people.

The Royal Assent Order 2010 challenged the underlying assumptions of the Tongan constitution. The Order allowed the King to appoint privy councillors as advisers and a Judicial Committee had also been established by the Privy Council in 2011.

Dr Harrison said any powers and functions conferred on any such committee, must be consistent with the overall scheme of the Constitution and any other statutory or fundamental legal principle.

King’s signature
Clause 41 of the Constitution required that “Acts that have passed the Legislative Assembly” must “bear the King’s signature before they become law”.

He said that under the new Constitution the king did not have complete discretion to refuse to sign an Act that had been passed by the Legislative Assembly.

He said changes to the constitution in 2010 had shifted the balance of power from the king to Parliament. This meant that the king should exercise his veto on legislation only in “truly exceptional circumstances and for compelling reason.”

Problems had arisen because the king had deferred assent to legislation passed by Parliament on the advice of Privy Councillors and the Law Lords appointed by the king to the Judicial Committee.

Dr Harrison said the Law Lords played no specific constitutional role, other than that of providing the King with advice.

They could not be permitted to operate de facto as judicial officers and did not have any constitutional function or role as scrutineers of legislation or the legislative process.

“The most fundamental problem with the Royal Assent Order is that it purports to confer on the Judicial Committee and ultimately the Privy Council power to review Acts duly passed by the Legislative Assembly and ultimately to determine whether each such Act is an ‘appropriate’ or ‘inappropriate’ recipient of the Royal Assent; and whether any such Act is or even may be unconstitutional,” Dr Harrison said.

Merits of legislation
“Under the new Constitution, review and evaluation of the merits of legislation passed by the General Assembly do not fall within the scope of the King’s powers of sanction (and signature).

“The ‘inappropriateness’ assessment falls foul of the new Constitution’s exclusion of the King and Privy Council from the role of governing the Kingdom. The constitutionality assessment does likewise, and in addition offends against the constitutional separation of powers and specifically the role and independence of the judiciary.

“If the assessments which the Royal Assent Order purports to authorise fall outside the constitutional powers of the King Himself, it necessarily follows that they cannot be empowered by means of the Royal Assent Order, as a mere Order in Council purportedly made pursuant to Clause 50(3) of the Constitution. On that basis, the Royal Assent Order must be seen as invalid.”

Dr Harrison said the Royal Assent Order was also invalid because it purported to confer the ultimate power of decision and assessment on the Privy Council, when it was only intended to provide a mechanism for giving advice to the King.

Media academic Dr Philip Cass is an adviser to the Kaniva News website. This article is republished by arrangement.

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MIL OSI – Source: Evening Report Arts and Media

Nothing can stop Duterte extending Philippine martial law, says legal chief

MIL OSI – Source: Evening Report Arts and Media

Headline: Nothing can stop Duterte extending Philippine martial law, says legal chief

Martial law … Solicitor-General Jose Calida Calida says further extensions are possible “for as long as the Congress believes that the invasion or rebellion continues to exist.” Image: Ben Nabong/Rappler

By Lian Buan in Manila

Philippine Solicitor-General Jose Calida says nothing – not the Supreme Court (SC) and not even the Constitution – can stop President Rodrigo Duterte and Congress from further extending martial law.

“The Court cannot, in the absence of any express or implied prohibition in the 1987 Constitution, prevent the Congress from granting further extensions of the proclamation or suspension,” Calida said in his 99-page memorandum sent to the Supreme Court yesterday.

Calida said further extensions were possible “for as long as the Congress believes that the invasion or rebellion continues to exist, and the public safety requires it”.

READ MORE: Justice pushes for ‘broader criteria’ for declaring martial law

This is what the House minority bloc warned against.

In their petition seeking to nullify the re-extension of martial law in the southern island of Mindanao to the end of 2018, the lawmakers said the Philippines was heading towards a “martial law in perpetuity.”

-Partners-

Presidential Spokesperson Harry Roque said there was no need to fear this because the Constitution did not allow a perpetual martial law.

Calida does not share the same opinion.

“The period for which the Congress can extend the proclamation of martial law and suspension of the privilege of the writ of habeas corpus is a matter that the august body can itself define, unshackled by any predetermined length of time, contrary to the petitioners’ erroneous submission,” the Solicitor-General said.

If Calida’s line of argument is to be upheld, Edre Olalia of the National Union of People’s Lawyers (NUPL) said: “Congress can extend martial law until kingdom come and the SC cannot do anything but to genuflect and grovel. Preposterous!”

Supreme Court’s power of judicial review
Calida also insists in his memorandum that extending martial law is not within the Court’s power of judicial review.

“The determination of the length of the extension is a power vested only in the Congress. It involves the exercise of its wisdom. The issue is a political question that judicial review cannot delve into,” Calida said.

But oddly enough, when it came to addressing the fear of a perpetual martial law, Calida changed tone and said one of the constitutional safeguards against abuse of the executive was that the Supreme Court can always step in.

“The extension is subject to judicial scrutiny upon the exercise of any citizen of his or her right to question the sufficiency of its factual basis, as exemplified by the very action now before this Honourable Court,” Calida said.

The paragraph above contradicts Calida’s many statements within the same memorandum that insists SC does not enjoy that power.

For example, one of Calida’s main arguments is that “the extension may not be impugned on the ground of grave abuse of discretion amounting to lack or excess of jurisdiction”.

In fact, that argument is contained in his very first pleading to the SC, saying that proclamation is different from extension. SC had already ruled that it has the power to review martial law proclamations.

Political question
Petitioners said that one of the grounds to nullify the extension was that the Congress leadership approved it in undue haste.

In response, Calida said that the Congress’ approval is a perfect example of a political question. The doctrine of political question is invoked when the executive and the legislative resist being reviewed by the judiciary.

“The Congress has full discretionary authority to decide how to go about the debates and the voting. In other words, the issues that the petitioners raise are political and non-justiciable. The questions presented essentially go into the wisdom of the Congressional action,” Calida said.

Calida dedicated 3 pages of his memorandum to stressing that the judiciary cannot interfere in the business of the executive and legislative branches, if the business is a political question.

“This despite the fact that political question limitation has already been debunked and abandoned by Article VIII, Section 1 of the Constitution,” Olalia said.

Olalia was referring to the constitutional power given to the judiciary to review whether the two other branches of government exercised grave abuse of discretion.

A sub-committee at the House of Representatives is proposing to delete that provision once and for all, something that retired Supreme Court justice Vicente Mendoza warned against.

“It needs serious study because deletion of this phrase mght be used to render SC powerless,” Mendoza said.

  • Pacific Media Centre reports: President Duterte placed Mindanao and its nearby islands under martial law on 23 May 2017 in response to the Battle of Marawi against Islamic State (ISIL), including Maute and Abu Sayyaf Salafi jihadist groupsNon-Muslim indigenous Lumad people of Mindanao have opposed martial rule and many human rights violations have been recorded by independent human rights organisations.Duterte has threatened to extend martial law across the whole country. The Philippine Congress on 17 December 2017 endorsed Duterte’s request to extend martial law until the end of 2018.

Lian Buan is a journalist writing for Rappler.

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Indonesia losing only female top justice amid gender rights worries

MIL OSI – Source: Evening Report Arts and Media

Headline: Indonesia losing only female top justice amid gender rights worries

By Rieka Rahadiana and Yudith Ho in Jakarta

Indonesia is set to lose its first and only female constitutional justice, whose term is up next year, potentially dealing a blow to women’s rights in a country where they’re being challenged in the face of growing religious conservatism.

Maria Farida Indrati will end her second and final term in about eight months, leaving the nine-member board of justices entirely male on one of the two highest courts in the country — where cases on discrimination, domestic violence, early-age marriage and female political participation continually arise.

The constitutional court differs from the supreme court, where the top judges are all male and which determines final appeal in legal matters not deemed to be constitutional.

“The point of view I bring to the table is different from what my male colleagues present,” the 68-year-old judge told Bloomberg in an interview.

It’s not a certainty that Indrati’s replacement, who likely will be chosen by President Joko Widodo from a list of three candidates picked by a committee, will be male.

While her successor won’t be known for several months or even until after her departure, Indrati said there are several qualified women to consider. She herself was chosen by former President Susilo Bambang Yudhoyono in 2008 after decades of lecturing in law at the University of Indonesia and assisting lawmakers in drafting legislation.

-Partners-

In Indonesia, female law students prefer a career outside the courtroom rather than in it because “women don’t like to be seen as argumentative or to debate,” said Indrati, who plans to return to teaching full time when her term finishes. Quotas aren’t the solution to increasing women’s participation in public life, including on the bench, she said.

‘Be unafraid’
“It is important that women take this role and be unafraid to take this role,” said the judge, who suffered from polio as a child and walks with a limp.

Although when she was young she aspired to be a piano teacher, Indrati listened to the advice of her father, a journalist and former teacher who had wanted to complete his unfinished law degree.

He encouraged his daughter to study to become a law professor instead, according to her official biography.

When the constitutional court in 2015 declined a judicial review to raise the decades-old minimum legal marital age for women from currently 16 years old to 18, Indrati was the only justice with a dissenting opinion.

Raising the marriage age to 18 would allow girls more of a chance to secure their futures, Indrati said. The challenge was brought by a group promoting women’s health. Activists are again appealing, seeking to have the case heard again.

Last week, Indrati cast a decisive vote in the court’s decision rejecting by 5-4 a petition by conservative academics seeking to deem extramarital and gay sex as crimes punishable by prison terms.

She has also ruled in favour of other gender and minority-related cases such as pornography and blasphemy.

More difficulties
“It’s not always the case where the existence of a female justice means the law will take the side of women,” said Indri Suparno, a commissioner at the National Commission on Violence Against Women. “But the absence will give more difficulties to women to become more progressive.”

Southeast Asia’s biggest economy is considered a model of moderate Islam.

The president, known as Jokowi, has put more women into senior roles compared with other Muslim-majority countries — a record nine of 34 cabinet ministers, the most among the world’s most populous countries.

High profile officials include Finance Minister Sri Mulyani Indrawati, Foreign Minister Retno Marsudi — a first in the country’s history — and Maritime and Fisheries Minister Susi Pudjiastuti. Rosmaya Hadi became Bank Indonesia’s only female deputy governor this year.

The country also imposes gender quotas for political party candidates put forward for public office.

In 2016, Jokowi launched the first nationwide survey on violence against women and children. However, he’s been silent on calls from human rights groups to end virginity tests for women applying to the military and the police.

Polygamy app
Worries over women’s rights have increased as attempts to hamper equality have been made more openly. A Tinder-like app, AyoPoligami, or Let’s Do Polygamy, and a seminar called “The Quickest Way of Getting Four Wives” have sparked controversy.

Indonesia allows Muslim men to take up to four wives if granted by a court and approved by the first wife.

Some 26 out of 153 countries have women as chief justices, or 17 percent, according to a World Bank report in 2016 called “Women, Business and The Law.”

Outside court
It’s possible that the challenge to the law legalising the age of marriage at 16 may be heard again while Indrati is still on the bench.

Campaigners for women’s rights say that women who marry young will miss out on what’s being called a demographic bonus by 2030 — when the numbers of working-age people are greater than the numbers of elderly — by not being able to further their educations and embark on careers.

The government wants to improve its professional workforce, but allowing women to marry at 16 means they likely will have to stay home and raise families instead of being able to participate, said Zumrotin Susilo, chairwoman of the Women’s Health Foundation, who was involved in the first appeal of the marriage law.

A Central Statistics Agency census in 2010 found 6.7 million out of 78 million women age 15 to 64 hold a bachelor’s degree, or 8.5 percent. About 500,000 women have postgraduate degrees.

“Women have to fight for the presence of female justices and build strong communications and perspective at the constitutional court,” said Suparno of the women commission.

The Jakarta Post

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