S1L49 – The “Political Question” Doctrine
Miss Carla Nalukay-nalipit?”
“ADDAAWAN, SIR!!!”
“I’m sorry, Miss Addaawan. I keep forgetting…” This is my student from Tabuk City, Kalinga whose name is structured after the Korean ethos of “yin-yang” –her name connotes both presence and absence. Unfortunately, it’s only the “yin-yang” trait of her name that stuck to my mind. I’ve been calling her all kinds of wrong variations of her name, ever since. But at least they’re all “yin-yang” in structure. My bad.
“Miss Carla, have you been reading the news? Your Kalinga province is in the headline lately,” I asked, just to check if Facebook is fulfilling its other role in social media, which is to serve as news informant.
“Is this about our province’s P1-BILLION loan that was stopped by the court, sir?”
Ah, she knows! So Facebook DOES have other content besides shopping promos and obituaries.
“Yes, that issue Why don’t you tell your classmates what that controversy is all about, and let’s see if we can jump off from that and talk about local government autonomy.”
“Well, sir, our governor negotiated with the Land Bank to obtain a loan of roughly ONE BILLION PESOS, payable in—I forget how many years, sir…”
“But beyond the term of office of the incumbent governor?” I clued her in.
“Yes, sir, definitely beyond. That’s why a former governor filed a case in court to stop the loan. He says it’s illegal for any set of public officials to speak and act in behalf of future officials and to create obligations today that must be fulfilled by others in the future. He said that would be unfair to those future officials who have no ‘say’ on the matter right now.”
“Alright. Let’s suppose, class, that those are all the facts, nothing more yet. Can an LGU enter into a loan contract like that? Juan Dimacaawat…”
“Yes, sir!” said Juan, “local government units are municipal corporations. Like all corporations, an LGU has the power of succession and can enter into contracts.”
“Alright, let’s begin with ‘power of succession.’ What is that, Miss Kata Ngahan?”
“Sir, an LGU has a separate personality of its own which is continuing and is unaffected by changes in the personality of its officials.” Kata recited in perfect English diction.
“And why is that significant, Mr. Jack Makataruz?”
“It’s a blitzkrieg,” Deema whispered to her seatmate Hannah Maala, “sir is doing a blitzkrieg, he’s going to call everybody tonight!! Be ready…”
Jack answered, “Sir, power of succession is significant because without it, LGU’s cannot pursue any long term projects. The term of office of local officials is only three years. Some projects take longer than 3 years to implement.”
“So how does ‘power of succession’ enable an LGU to do projects that take longer than 3 years to implement, Mister Hilong Talilong?”
“Sir, it binds officials of the LGU to honor all obligations created even before they became officials of the LGU, and those obligations shall continue to bind the LGU even if its incumbent officials are replaced by newer ones.”
“State that principle in your own words, Mister Jack Makataruz.”
“Uh…sir…kwa…officials come and go, but the LGU stays the same?” Jack launched a ‘hail Mary’ guess. Lucky for him his prayer was answered.
“That’s really how it is, excellent summary, Jack “ I rewarded his derring-do answer.
“So what’s all the opposition to that Kalinga loan about, if the law apparently allows LGU’s to enter into long-term contracts, Miss Nataba-nakuttong”?
“ADDAAWAN, SIR!!!”
“Oh, yeah, right. Miss Addaawan. Is the length of the contract the only point of objection?”
“No, sir. There’s also the question of what was used to collateralize the loan. The Land Bank gets hold of Kalinga’s 20-percent IRA for the next several years, in effect stripping the local legislative body of their power of fiscal management!”
Almost immediately her classmates started softly chanting “Brain bleed! Brain bleed! brain bleed…!”
“Listen to that. I don’t blame your classmates,” I said, “that’s quite a mouthful, so we need to go through that again one element at a time, Miss Nalaka-nangina…”
“ADDAAWAN, SIR!!!”
“Yah, Right, Miss Addaawan. So take us through the basics here…”
“Well, sir, out of all the national taxes collected by the BIR in Kalinga during a year, 20 percent automatically goes to Kalinga’s treasury. That’s our ‘internal revenue allotment’ or IRA. If this loan pushes through, our IRA will now automatically go to Land Bank for the next several years, until the 1 BILLION is fully paid.”
“How much is Kalinga’s annual IRA on average, Miss Dangkaw-bansot?”
“ADDAAWAN, SIR!!!”
“Right, Miss Adaawan. How much would Land Bank’s ‘captive collection’ be if the loan pushes through?”
“Sir, last year our IRA was around P240-MILLION.”
“So it would take Kalinga at least five years to pay that loan…”
“Maybe more, sir, because the loan is interest-bearing. And if our IRA falls below P240-MILLION during a bad collection year, for example, we could even be assessed some penalties.” Miss ‘Yin-yang’ said.
“But at the minimum, that’s five years of not getting any IRA. What can you see wrong about that, Mr. Cabo Buhan?” I’m flipping through their classcards like typhoon Odette on steroids!
“Well, sir, since the term of local officials is only three years, then I can see that at least one batch of officials would be reduced to lameduck officials. They have no budgeting to do. Their main source of revenue is already pre-allocated.”
“Why would that amount to stripping these officials of the power of fiscal management, Miss Palindrome?” Hannah’s eyes lit up, I think she likes the name I gave her even better.
“Well, sir, because the loan will fund most, if not all the spending programs and initiatives of the LGU. But in everything from livelihood projects to new infrastructures, the spending priorities of Kalinga for 2026 is bring determined by conditions in 2021. So at best, the present officials are only guessing, not really planning.” Said Miss Hannah Maala.
“Do you agree, Ms. Joanna Cream-O?”
“PIS-O, SIR!!!”
“Right, Miss Pis-O. Does the loan deprive the LGU of forward planning?”
“No, sir. The loan itself IS the forward planning, and by definition all planning involves guessing, anyway, because you are saying already today what you will do tomorrow. Who knows what tomorrow brings.” The girl from Barlig said, drawing almost an instant reaction from Miss Julyrain Arpeggio.
“Joe Cocker and Jennifer Warnes, sir.”
“I’m sorry, what’s that Ms. Arpeggio?”
“That line ‘Who knows what tomorrow brings’ is from that duet of Joe Cocker and Jennifer Warnes entitled ‘Up where we belong’ sir,” said the class’ prodigious instant composer.
“Riiight…” I said slowly, pretending like I knew the song, “everybody loves those two, Joe-what’s-his-name and Jennifer-somebody. We all miss those days of disco.”
“Actually it’s R-and-B, rhythmn ang blues, sir,” Miss Julyrain Arpeggio corrected my warward music trivia “but I agree with Miss joanna Pis-O that tying up the hands of future officials might be a dangerous precedent. Just look at what happened with this COVID-19 pandemic. The whole country had to scramble for money because nobody saw the pandemic coming. It forced the government to realign priorities.”
“I agree with Miss Arpeggio,” I finally took my own stand. “Who can argue with the fact that COVID-19 overshadowed all previous government planning. Of course, it pays to look ahead, but not too far ahead. In just 2 short years, COVID humbled all our planning, and showed us that the ability to face present crises is just as important as dreaming of rosy futures. So I doubt if the court will miss that very important lesson we all learned. THAT ONE BILLION PESO LOAN IS DOOMED,” I declared confidently.
“Maybe not.”
Everybody’s eyes turned to the person who just disagreed with the professor!
As usual, it was Miss Deema Niwala—the girl of a thousand surprises.
“I think that loan is in the bag, would you like me to explain , sir?”
“I would LOVE to hear your explanation, Miss Deema!” I said sarcastically.
“Well, sir, the Local Government Code gives LGU’s the power to contract obligations…so check! The governor, as local chief executive, was authorized by the provincial board to negotiate with Land Bank…check! The contract once finalized was ratified by the provincial board… check! And the programs to be funded by the loan are all contemplated in the provincial development plan…check! So procedure-wise everything checks. Those are the only things you can challenge in court—those are the only JUSTICIABLE questions.” Deema rattled off her checklist of validation criteria for laws and contracts.
“And what about the emasculation of the LGU’s fiscal management, Miss Deema?”
“It’s too subjective, sir,” Deema said definitively, “you would be forcing the court to examine the WISDOM of the present provincial board in setting as their priorities all those programs that will be funded by the loan. Maybe they’re wrong, maybe they’re right. But that’s what the voters elected them into office for—to make wise POLITICAL decisions like that. No court would want to mess around with a political question like that.”
Come to think of it, this girl is correct. That’s why one must always look at every legal question from all sides. I and the rest of the class were looking at it from the perspective of administrative law. Miss Deema was attacking the question from the constitutional approach.
Of course, from the teacher’s perspective, I MUST always sound like I always knew THAT.
“Well, class, I hope you heard all that your classmate Miss Deema said because I couldn’t have said it better myself. Courts will hesitate to resolve a POLITICAL question,” I decided to concur with my smartest student, “courts are really best equipped to resolve only JUSTICIABLE questions, or those that would only involve determining legal violations or procedural omissions. It cannot override the policy-making discretion of an LGU. And this is the reason why that 1 BILLION loan will most likely be ultimately greenlighted, right Miss Deema?”
“No, sir.” Deema said.
Maybe I should have said ‘a girl of a thousand AND ONE surprises.’
“Uh…Miss Deema, I just agreed with you. Are you changing your opinion? Do you now think that loan is doomed? Again?”
“Oh, no, no, no, sir—oops!”
“It’s okay, go ahead,” I said, but I also rolled MY eyes.
“It will still be approved, but on a practical level, because of ANOTHER reason, sir.”
“Oh? What reason would that be, Miss Deema?”
“Sir, once a bunch of LGU and bank officials think they can get their hands on ONE BILLION PESOS, it would take a miracle to make them let go!”
I call that the ‘COVID point.’
I didn’t see that coming!
About the Author
The author is a writer and lawyer based in Baguio City, Philippines. Former editor of the Gold Ore and Baguio City Digest, professor of journalism, political science and law at Baguio Colleges Foundation (BCF). He is a photographer and video documentarist. He has a YouTube channel called “Parables and Reason”
About Images: Some of the images used in the articles are from the posts in Atty. Joel Rodriguez Dizon’s Facebook account, and/or Facebook groups and pages he manages or/and member of.