Pacquiao Makes History

Manny Pacquiao made history by defeating Puerto Rican Miguel Cotto on Saturday through a technical knockout (TKO) on the 12th round. Starting his professional boxing career at the flyweight level at 106 pounds, Pacquiao has defied conventional wisdom by moving up through six weight categories, victory after victory. Instead of weakening as he increased his weight (latest is 144 pounds), he proved even faster and a more skillful fighter. With his defeat of Cotto, Pacquiao now holds his seventh title.

If his critics weren't convinced of his abilities in his bouts with Diaz, Dela Hoya and Hatton, this time around Pacquiao's victory against Cotto leaves no room for equivocation. Cotto was a natural welterweight, holds height and age advantage over Pacquiao, is known for his power punches, and holds an impressive record (only one loss and ending most of his victories in knockouts). Saturday night's match proved that Pacquiao is truly a skillful, fast, powerful and strong fighter. To Cotto's amazement, Pacquiao landed punches after punches without him seeing - punches that knocked him twice, bloodied and bruised his face, and would have sent him on the canvass for a final knockout had not the referee stopped the fight on the 12th and final round.

Pacquiao also proved that he can take punches. Although Cotto landed a many good punches, jabs that jerked back Pacquiao's head several times, Pacquiao remained unperturbed and continued landing his firepower on the weary Puerto Rican, whose only move at the later rounds was to finish standing by running away from Pacquiao's fury - that is, until the disappointed Pacquiao caught up with him and delivered his final pounding.

Now that Pacquiao has shown who the true pound-for-pound king is, an ultimate match with undefeated Floyd Mayweather looms next year. It is reported that any time this week talks will be arranged between the fighters' promoters for this much-awaited fight. Assuming Mayweather doesn't become greedy and does not spoil (or perhaps avoid) the match-up by demanding an unreasonable sum, will that mean Pacquiao will have to temporarily shelve his political ambitions, considering that next year will be election year?

If this dream match unfolds, Pacquiao will definitely need all the time to concentrate on his training and preparation. The last thing Freddie Roach needs - and Pacquiao even more - is a boxer who will need to attend to his constituents' needs as he prepares for a big fight - probably the biggest fight of his career.

Legal Issues on Erap's Candidacy

Even before former President Joseph Ejercito Estrada's Wednesday announcement to claim the presidency again, his eligibility for the office have long been the subject of much debate. Legal scholars and laymen alike have given their two cents' worth on the issue. Once again, we will revisit the legal issues surrounding Estrada's second quest for the presidency or, as he calls it, the "performance of his life."

Let us start with a little background. Estrada was elected president in 1998, but his tenure was cut short when on January 2001 he was ousted from office during the so-called EDSA II revolution where the Supreme Court, in an unprecedented manner, made then Vice President Gloria Macapagal-Arroyo the president by administering to her, through then Chief Justice Hilario Davide, the oath of office for the president. The Supreme Court later on legitimized GMA's assumption of office by ruling in Estrada v. Desierto that Estrada resigned the presidency under the artful doctrines of "totality test" and "constructive resignation." In 2004, after serving about three years as president, GMA run for and was elected as president.

The constitutional provision dealing with the election and term of office of the president is Article 7, Section 4, which is pertinent to the eligibility of Estrada to run. The provision reads as follows:

Section 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter. The President shall not be eligible for any re-election. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

Those who support the eligibility of Estrada raise the following positions: (1) The bar on second election to the presidency applies only to the incumbent president and (2) Estrada served as president for two and a half years only.

The first position argues that in prohibiting the election of a person to the presidency for the second time, the second sentence of Article 7, Section 4 refers only to the incumbent president as evidenced by the use of the definite article "the." Thus, in saying that "[t]he president" is not eligible for re-election the phrase simply means the sitting president, which at present is GMA. This position is further reinforced by the use of the word "re-election." The proponents claim that re-election refers to one who has been elected to an office and is seeking to be elected to the same office immediately upon the expiration of his or her term.

Since Estrada is not the incumbent president he is not covered by the prohibition on re-election to the presidency. As former Supreme Court justice and DOJ secretary Serafin Cuevas said, Estrada is not seeking re-election but a new election.

This interpretation would, of course, mean that not only will Estrada be eligible to run for president again, but also Fidel V. Ramos and others who will become president later on - after they are no longer in office. It advances the view that the prohibition on second election to the presidency is not absolute.

The opposing view, on the other hand, states that the use of the definite article "the," before the word president, and the word "re-election" in Section 4 are not conclusive grounds in saying that the prohibition on second election to the presidency applies only to the incumbent president. It is argued that the adjective "any" before the word re-election dispels this. Thus, when Section 4 states that the president shall not be eligible for any re-election, it means that the president cannot be elected president again either immediately upon the expiration of his or her term or on any presidential election thereafter.

If the intention were that the ban applies only to the election upon expiration of the holder's tenure of office, the adjective "any" would clearly be out of place and useless. But the insertion of this adjective suggests that the ban on re-election is not limited to the election to be held at the end of the incumbent president's term but on any other presidential election. The phraseology of Section 4 looks forward which thus makes the ban on second election to the presidency apply now and in the future to the sitting president.

The adjective "any" clearly modifies the word "re-election" by giving it a non-restrictive meaning. In addition the dictionary defines re-election as to elect again. Thus, one can be considered re-elected to the same office even after the interval of one or more terms.

Proponents of Estrada's re-election also explain that the rationale of Section 4 in prohibiting re-election is to prevent an incumbent president from using the power and influence of his or her office to ensure electoral victory. Obviously this rationale would have no application to one who is no longer president, which argues for the non-application of the prohibition to a former president like Estrada. The contrary view, however, is that if indeed this is the rationale, then why is the same not true in the case of one who succeeded as president and has served as such for four years or less. The third sentence of Section 4 states that such person will be eligible for election to the presidency. Such person will be enjoying the same power and influence as president - as in the case of GMA after succeeding to the presidency in 2001 - and yet the Constitution does not prohibit him or her from running in the next presidential election. The incumbent's advantage, therefore, is not a very strong argument.

As regards the second point of those favoring Estrada's candidacy, they argue that Estrada did not finish his term as president since he only served two and a half years. This is, however, a long shot. The ban on re-election under Section 4 does not require that the president must complete his or her term before the prohibition is triggered.

A variant of this position is that since on the third sentence of Section 4 it prohibits second election only when one who became president has served the presidency for more than four years, Estrada would be qualified to run since he only served two and a half years as president. But the contrary view holds that said provision of Section 4 applies only to one who became president by virtue of succession, such as when the vice president becomes president because the president dies, resigns or becomes permanently incapacitated.

This claim is supported by the phraseology of Section 4's third sentence when it says that no person who has succeeded as president and has served under that capacity for more than four years shall be qualified for election to the presidency at any time. The provision uses the word "succeeded as president" instead of "elected as president" or "became president," which means that it refers to the rule of succession. Also, this interpretation is supported by the use of the word "election" on the third sentence of Section 4, to wit:

No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

Obviously, one who became president by the rule of succession is not elected to the office he or she succeeded. In contrast, the second sentence uses the word "re-elected" because it speaks of one who has already been elected to the presidency.

There is view to the effect that if GMA was allowed to run for president in 2004, having served as president immediately prior thereto for less than four years, there is also no reason why Estrada cannot run for president, considering that he also served for less than four years. This proposition, however, ignores the fact that GMA only succeeded to the office of presidency in 2001 while Estrada was elected thereto in 1998.

One other legal obstacle being thrust into Estrada's candidacy is his conviction for plunder, which carried the accessory penalty of disqualification. It would appear, however, that the absolute nature of the pardon granted him by President Macapagal-Arroyo has eliminated this legal challenge.

The Mercury is Rising: A Look at Global Warming

As early as 1896, Swedish chemist Svante Arrhenius predicted the warming of the Earth's temperature through an increase in the emission of carbon dioxide (CO2). At that time, however, given the rate of CO2 emissions then, Arrhenius was not alarmed by this possibility. More than a century later, Arrhenius's prediction has become a reality with global warming becoming one of the most pressing threats to life on Earth.

While the Earth's temperature passes through a natural cycle of heating and cooling, or what skeptics of climate change call natural climactic swings, scientists have found that human activity has contributed to much of the heating of the Earth for the past century. And studies point to so-called greenhouse gases (GHGs) as the major culprits.

The Earth's atmosphere contains concentration of gases (such as methane and CO2) which trap some of the heat coming from the sun. These trapped heat keeps the planet warm and makes it possible for life on Earth to thrive and be sustained. This process is called the greenhouse effect. But years of massive GHG emissions and buring of fossil fuels, brought about by industrial processes, vehicle use, and every other human activity involving the use of energy, has abnormally increased the level of GHG gases in the atmosphere (now much higher compared to 650,000 years ago), thus making the planet hotter. Per the latest estimate, the world's temperature has gone up by more than one degree Farenheit and even higher in the polar regions.

The atmosphere's natural alternating cycle of warmth and cold usually takes hundreds of thousands of years. In contrast, we are now seeing an abnormal increase in global temperatures. Eleven of the 12 hottest recorded years occured between 1995 and 2005 ever since the thermometer can gauge the temperature. As a result of this, we are now seeing the effects of global warming taking its toll on Earth: glaciers and sea ice are melting (sea levels have risen faster over the last century), precipitation patterns are shifting wherein snow and rainfall has been observed to be increasing in certain areas of the planet, and some animals have changed their migration patterns by moving farther north in search of cooler climate.

There is now a general consensus that the question is no longer whether there is global warming being caused by human activity, but the question is more on what can be done to prevent or stop global warming. The Intergovernmental Panel on Climate Change (IPCC), consisting of hundreds of leading scientists the world over, which was formed by the UN Environment and Development Program in 1988 in collboration with the World Meteorological Organization, has released a report in 2001 declaring unequivocally that humans have caused the rise in the Earth's temperature.

Unless action is taken by the world's leading industrialized nations, such as China (now the biggest emitter of GHGs) and the United States, the Earth's temperature will continue to heat up to abnormal levels, increasing to as much as 10 degrees Farenheit. This will be catastrophic because it will melt the polar ice caps and increase worldwide sea levels that will flood coastal regions; extreme weathers will beset us, such as stronger typhoons and hurricanes; crop yields will drop greatly as increased rainfall is followed by longer periods of droughts; many plants and animals will become extinct as their habitats are destroyed. These are but a few of the dangers of global warming if left unchecked.

Let us hope that the Coppenhagen Climate Conference on December 2009, which will be participated by 170 countries and several non-governmental organizations worldwide, will result in an effective and sustainable plan to combat global warming and climate change.

In the meantime, let us do our part in helping in our own small way in the overall effort to stop global warming, such as becoming more energy efficient and saving energy in our daily activities. We can, for example, replace our incandescent light bulbs with flourescent bulbs, lower the thermostat in our heating systems during winter, avoid using our cars whenever possible, unplug unused applicances, turn off lights when not in use, etc. We could also help by participating in information drive to educate the public about global warming or urge our political leaders to take action. These individual actions, when combined together, will have great impact on our environment.

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The Religious Exception

Just a little over a month after Republic Act No. 9710, otherwise known as the Magna Carta of Women, has been approved, the Catholic Church is already laying the basis for an exemption from the full application of the law. In a speech during the Catholic Educational Association of the Philippines (CEAP) national convention, Monsignor Gerardo Santos, the association's president, said the CEAP will seek exemption from the provision of the law outlawing the expulsion or non-readmission of women employees or the non-admission of women in schools, on account of pregnancy outside of marriage.

Monsignor Santos is asserting CEAP member-schools' right to academic and religious freedom and vows he will see to it that such exemption is inserted in the law's implementing rules and regulations.

If and when a case involving this issue reaches the Supreme Court it will be the second of its nature. The first that landed on the Supreme Court is the 2003 case of Estrada v. Escritor (A.M. No. P-02-1651). For the first time in Philippine jurisprudence, Escritor laid down the rule on exemption of religious conduct from the application of a generally-applicable law. Briefly, the case involves a court employee, Escritor, who has been living with a man for years without the benefit of marriage. This man also happens to be married, although separated, with another woman. When an administrative complaint for immorality was filed against Escritor, she raised as a defense that her cohabitation with another man is sanctioned by the tenets of her religion and was with the knowledge and approval of her congregation's religious leaders.

In a lengthy and exhaustive opinion that is more of a dissertation rather than a court decision, then Associate Justice Reynato Puno, writing for the majority, said that the free exercise of religion clause of the Constitution protects the rights of individuals to engage in certain religious conduct - even if contrary to the provisions of existing law (read as exemption) - as long as it is based on sincerely-held religious belief and the state has no compelling interest to burden the exercise of such religious conduct. Three years after remanding the case to the Office of the Court Administrator (Supreme Court office that investigates complaints against court employees) - to determine the sincerity of the belief and its centrality to the professed believer's faith and allow the government adduce proof of a compelling state interest to penalize the non-marital relationship - the Supreme Court found for Escritor by ruling that the freedom of religion or free exercise clause of the Constitution exempts her from the provisions of the Revised Administrative Code penalizing immoral conduct.

While the Supreme Court recognized the state's legitimate interest in protecting the institution of marriage and the family, it refused to accept the government's claim of compelling state interest on such broad and general principles; it wanted more narrow or specific interests of the government that will be subverted if the non-marital union of Escritor with another man is not penalized.

The Supreme Court laid down the following important criteria when courts can carve out an exemption from a law of general applicability based on religious conduct, namely: (1) the law burdens religious freedom; (2) claimant's sincerity in his/her religious belief; (3) there is no compelling state interest involved; and (4) the burden on religious freedom is the least intrusive means of achieving the government's objective.

It is clear from the foregoing criteria that the fact that a law burdens a religious belief and its exercise, and such belief is sincerely-held by a person, if there is a compelling state interest involved and there are no alternative means of pursuing that interest, the claim of religious exemption will fail. Thus, in the American case of US v. Lee the Supreme Court of the United States found a compelling state interest in sustaining the fiscal viability of the social security system through mandatory contributions when it denied the Amish religious group's claim of religious freedom in refusing to pay social security taxes. On the other hand, the need to maintain peace and order and punish violent crimes would be a compelling state interest that would defeat a claim of religious freedom in, for example, religious practices involving human sacrifices.

The compelling state interest test is, therefore, a check on pleas for religious exemption, while at the same time it guarantees religious freedom under the free exercise clause by requiring only the strictest scrutiny of regulations, although secular in nature and are of general applicability, that incidentally burden religious freedom.

CEAP will undoubtedly rely on the criteria enunciated in Escritor in seeking the exemption from the Magna Carta of Women. Whether or not there is a compelling state interest in burdening the Catholic Church's moral doctrine as applied to unwed mothers will be a question the courts will have to address. But what is clear is that Escritor has paved the way for religious groups in seeking exemption from a law which, although is religion-neutral on its face, has the incidental effect of burdening the exercise of religious freedom.

Defeating the Intent of the Law

With 11 justices concurring and three dissenting, the Supreme Court, in Roque, et al., v. Comelec, et al., G.R. No. 188456 (September 10, 2009), voted to deny the petition questioning the legality of the poll automation contract entered into between Comelec and Total Information Management (TIM)-Smartmatic to fully computerize the 2010 national and local elections.

On July 10, 2009, Comelec awarded the poll automation contract to TIM and its foreign partner Smartmatic. The purpose is to implement a nationwide automation of elections in May 2010 pursuant to R.A. 8436 (Poll Modernization Act), as amended by R.A. 9369. But UP Law Professor Harry Roque and the Concerned Citizens Movement (petitioners in the case) questioned before the Supreme Court the validity of the contract on the following grounds: (1) lack of a pilot testing for automated elections; (2) validity of the joint venture between TIM and Smartmatic; (3) failure of the Precinct Count Optical Scans (PCOS) machines to meet accuracy requirements; and (4) abdication by Comelec of control over the electoral process.

Since the interpretation of section 5 of R.A. 8436, as amended by R.A. 9369, is the most contentious, I will limit my discussion on this issue. The pertinent provision reads as follows:

Sec. 5. Authority to use an Automated Election System.- To carry out the above stated-policy, the [Comelec], x x x is hereby authorized to use an automated election system or systems in the same election in different provinces, whether paper-based or a direct recording electronic election system as it may deem appropriate and practical for the process of voting, counting of votes and canvassing/consolidation and transmittal of results of electoral exercises: Provided, that for the regular national and local elections, which shall be held immediately after the effectivity of this Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas, and Mindanao to be chosen by the [Comelec]: Provided, further, That local government units whose officials have been the subject of administrative charges within sixteen (16) month prior to the May 14, 2007 elections shall not be chosen. Provided, finally, That no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. The term local government unit as used in this provision shall refer to a highly urbanized city or province. In succeeding regular national or local elections, the AES shall be implemented nationwide.

Interpreting the above provision (particularly the highlighted portion), the Court ruled that the requirement that in the regular elections to be conducted immediately after the effectivity of the law automation shall be conducted in at least two highly urbanized cities and two provinces each for Luzon, Vizayas and Mindanao is not an indispensable requirement for full automation in 2010. It is not a condition precedent or a condition sine qua non for full automation in 2010.

The majority refused to characterize said provision as "pilot testing." But as Chief Justice Puno observed in his separate opinion, the intent to test an automated election system (AES) is evident from the amended text of Sec. 5 of RA 8436. There is no rhyme or reason why Congress would mandate Comelec to use the AES first after effectivity of the amendatory law (RA 9369) in at least two highly urbanized cities and two provinces for each of the country's major islands if it were the intention not to pilot test. This is clear from the following statements of Senator Richard Gordon, cited by the chief justice, during deliberations on the automation law:

Mr. President, this is precisely why we are starting the automation in two provinces and two cities so that we do not take a big bite right away. And I accepted the amendment of the Minority Leader precisely because we want to make sure that the bite is sufficiently enough for us to be able to run the automation. . . . Now, the sample is only two provinces and two cities, Mr. President, so that we would be able to get a gauge.

Now I don't know what the words "to get a gauge" means, as used above, if not to test, check, determine or judge.

The Court determined that a pilot test is not necessary by saying that (1) the limited application of automation to two cities and provinces, as provided by Sec. 5 of RA 8436, refers only to the elections immediately succeeding the effectivity of the amendatory law (RA 9369), which is the 2007 elections and (2) by holding that the last sentence of Sec. 5, as amended, stands independently of the rest of the section. The last sentence of Sec. 5 states that "[in] succeeding regular national and local elections, the AES shall be implemented ." The majority views this provision as a mandate for full automation in 2010, regardless of the holding of a limited automation during the 2007 elections.

The following words of the chief justice in his separate concurring opinion are illuminating:

The respondents’ reading of Section 5 disregards the tenor of the entire provision. A rational reading of the entire provision will show that the different parts isolated and then interpreted by the respondents are connected by the conjunctions provided, that and provided, further that and provided, finally that. These conjunctions signify that the clauses that follow the conjunction are a pre-requisite or a condition to the fulfillment of the previous clause. The words provided, that mean the same as “as long as,” “in order that,” and “if only.” . . . In this light, Section 5 should be interpreted to mean that the COMELEC is authorized to use an AES as long as the following requisites are complied with: (1) for the regular national and local elections, which shall be held immediately after the effectivity of the Act, the AES shall be used in at least two highly urbanized cities and two provinces each in Luzon, Visayas and Mindanao; (2) that local government units whose officials have been the subject of administrative charges within sixteen months prior to the May 14, 2007 elections shall not be chosen; and (3) that no area shall be chosen without the consent of the Sanggunian of the local government unit concerned. And, when the above conditions are complied with, the AES shall be implemented nationwide in succeeding regular national and local elections.

As regards the last sentence of Sec. 5, this is what he said:

The last sentence of the provision which provides that “[i]n succeeding regular national or local elections, the AES shall be implemented nationwide” may appear as not connected to the enumeration of requirements for the use of an AES. But this does not mean that it can be read in isolation and independently from the rest of the provision. Section 5 expressly declares that the COMELEC's authority to use the AES on a nationwide scale is contingent on the prior conduct of partial automation in two provinces and two highly urbanized cities each in Luzon, Visayas and Mindanao.

But the chief justice, while recognizing the necessity of a pilot testing before full automation is implemented, stopped short by siding with the majority in holding that with the enactment of RA 9525 on March 5, 2009, which appropriated Php 11 billion for the 2010 elections, the pilot test requirement has been dispensed with. The argument is that it is the congressional intent in enacting RA 9525 to make way for full automation in 2010 despite the failure to implement a limited AES (two cities and two provinces automation) in May 2007.

The argument, however, of the petitioners is equally persuasive, if not more convincing. According to them RA 9525, particularly Sec. 2 thereof - as relied upon by respondents, has not impliedly repealed the pilot testing requirement of Sec. 5 of RA 8436, as amended, but in fact reinforces it as can be read from from the following proviso of Sec. 2: "the disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws . . ." In other words, the utilization of the funds allocated by RA 9525 for poll automation shall be made strictly in accordance with RA 9369. As already discussed, Sec. 5 of RA 8436, as amended by RA 9369, mandates the two cities and two provinces application first of an AES.

A rational reading of Sec. 5 of RA 8436 shows the unmistakable intention of the law to pilot test first the implementation of an AES by limiting it to at least two cities and two provinces each for Luzon, Visayas, and Mindanao. There is no other purpose that can be gleaned from said provision but to see first how automation can be carried out with limited application, before making it nationwide in scope. And this is but proper, considering that it will be the first time that automation will be carried out in the election of national and local officials.

Since the initial requirement for full automation has not been complied with in the 2007 elections, that does not mean the same rationale is no longer applicable. Now, if the pilot test required by law was not implemented in the 2007 elections for practical reasons (due to time and funding constraints), there is no reason why, for practical reasons also, that said testing cannot be implemented first in 2010 before we embark on full automation. To be sure, the limited application of AES madated after the effectivity of RA 9369 was not just inserted there by Congress for no reason at all. It was meant to pilot test automation first, plain and simple. To repeat, just because automation was not undertaken during the 2007 elections does not mean that the purpose behind a pilot test no longer applies.

Applying the pilot testing requirement of Sec. 5 of RA 8436, as amended by RA 9369, in the 2010 elections would not violate the law anymore than its non-application during the 2007 elections violated the law. On the contrary, it will serve and implement the clear intent of the law.