Wednesday, February 27, 2008

Executive Privilege, the Case of Romulo Neri and Gloria's Radio Admission

oth the Senate leadership and the Catholic Bishops have joined in the call for President Arroyo to lift Executive Order 464--the gag order on all executive dept officials first imposed in connection with a Senate investigation into the Venable Contract and to stop the testimony of the Garci General Francisco Gudani about election fraud in Mindanao. Today, everyone is waiting with bated breath on how the Supreme Court might rule in the case of Romulo Neri's petition for prohibition against the Senate's arrest warrant for contempt, based on his claim of executive privilege based on EO 464 during that ill-fated Executive Session last year. Unfortunately for Senators, Bishops, and citizens alike, EO464 was already the the subject of a unanimous Supreme Court Decision in 2006, Senate v. Ermita in which the pith of the matter is all in the last paragraph--
WHEREFORE, the petitions are PARTLY GRANTED.
Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), “Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,” are declared VOID. Sections 1 and 2(a) are, however, VALID.
The basic effect of this unanimous decision of the PANGANIBAN COURT can be seen in the following color coded text of EO 464 in which the blue provisions are UPHELD while the red provisions are NULLIFIED:


SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

      1. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
      2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
      3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
      4. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
      5. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

      1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
      2. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
      3. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
      4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
      5. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)

Going by the headings of EO 464, the Supreme Court upheld the President's right to require permission of her department heads before attending Question Hour hearings in Congress. (Section 1). They also upheld her definition of the Nature and Scope of Executive Privilege (Section 2a) , but struck down her coverage of persons, as opposed to information (Section 2b and 3).

To me, Senate v. Ermita was a "mitigated win" for Ermita and the Palace, and a "mitigated loss" for the Senate and the People. Its unanimity gives it extra force, and the fact that it substantially upheld the most potent portions of EO 464, the difference between "win" and "loss" is unmitigated!

I don't see how the Court could allow the arrest of Romulo Neri when he has substantially complied with the High Court's own requirements on how Executive Privilege is asserted, even if he has not satisfied the Senate, or the Public's Right to Know. For the Court unequivocally declares in its Decision:
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of “executive privilege.”
They may ask him to return just to re-assert Executive Privilege with their Permanent Writ of Prohibition against a pusillanimous Senate...

One development that the Court may or may not take judicial notice of is the apparent admission by the President during a radio interview about corruption ("katiwalian") attendant upon the ZTE deal...
Transcript of Gloria Macapagal Arroyo's Radio Statement

PGMA: “Nasumbong sa akin the night before the signing of the supply contract, pero hindi pa naman kasi...oh that was only one of many pa paano mo naman makakansel the night before mayroon pang ibang bansang kausap...tinuloy yung signing pero sa unang pagkakataaon kinausap ko na agad yung pangulo ng china para sabihin sa kanya na kailangang kanselahin ang proyekto.”

RADIO ANNOUNCER: Naunawaan naman nila?

PGMA: “Sa umpisa hindi masyado, nagulat pero sa pangalawang paguusap ko sinabi na naintindihan niya, at ah at ah kaibigang kaibigan pa rin tayo kahit na kakanselahin ang proyekto. Eh hindi ko gusto ang katiwalian, ang taong bayan galit sa katiwalian, galit din ako..galit din ako sa katiwalian.”

It must be borne in mind that her husband lay possibly dying from a dissecting aneurysm when the President went to Boao, China for the signing of the ZTE supply contract. She does not say exactly what was told to her the night before the signing, but it's pretty clear that the reason the project had to be cancelled was KATIWALIAN, meaning corruption. The unavoidable conclusion is that what was told to her was about irregularities tainting the contract. Yet she signed the contract.

This is ground, in my opinion for the Court to rule that executive privilege cannot be used to hide possible irregularities or illegal activities by the Executive.

Fr Joaquin Bernas has his own thoughts on The Limits of Executive Privilege.

Ricky Carandang is reporting on a potentially explosive new flashpoint in the continuing saga of Gloria Macapagal Arroyo's slowly unreeling relationship with China. Did the President give away oil and gas exploration rights in the Spratley Islands in exchange for $2 billion a year in concessionary loans till 2010?

The latest Google Earth imagery of the Spratleys contain imagery of both permanent structures and what are tantalizingly labeled "Chinese warships?"

A previous Philippine Commentary on this topic was China's Greater East-Asia Co-Prosperity Sphere

Tuesday, February 26, 2008

Catholic Bishops Disappoint People Power Hopefuls

Father Willie Jones Ducusin of the Nueva Segovia Chancery has posted a copy of the Catholic Bishops Conference Pastoral Letter on the Current Crisis after a 12 hour emergency meeting in Manila today.

The Philippine Senate IS the Supreme Court of Public Accountability

Nowhere in the Constitution is the grand principle of the Separation of Powers through Checks and Balances in a tripartite government as clearly defined as a geological formation than in 1987 ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS. For here is described the sole and exclusive JUDICIAL power of the Congress over Constitutional Officers.
Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.
THE PHILIPPINE GOVERNMENT employs well over a million people, but a very special group of "Constitutional Officers" enjoys immunity from civil and criminal suits while in office and may only be removed prematurely by IMPEACHMENT under the 1987 Constitution (Art XI Accountability of Public Officers)—
15 Supreme Court Justices.
7 Comelec Commissioners.
3 COA Commissioners.
3 CSC Commissioners.
1 Ombudsman
1 Vice President
1 President
Note that the Congress has NO impeachable officers. All Senators and Congressmen are directly accountable to the people through regular elections and the Justice system.

THE PALACE was saying all day yesterday: "Leave it to the Courts and the Rule of law."

Well, I've got news for them. Under the 1987 Constitution the Philippine Senate IS the Supreme Court of Public Accountability—the Rule of Law for kicking out impeachable officers like the President before their time is up for high crimes and misdemeanors like knowingly signing corrupt deals disadvantageous to the government.

Since we are now talking about REGIME CHANGE again, it is time to review the basics.

There are five and exactly five ways under the 1987 Constitution by which the term in office of a duly elected President ENDS:

1. The President completes the six year term in office.
2. The President dies.
3. The President becomes permanently incapacitated.
4. The President resigns.
5. The President is impeached, convicted, removed from and permanently barred from public office.

Notice that the first four things just sort of happen. The Public does not really have to do anything for one of them to happen. The regular six year term will pass with time, unless Grim takes the President first or fries his brain. The President could also quit for any reason whatsoever (including people power, but wish again.)

IMPEACHMENT is unique. It is the only legal weapon provided by the Constitution for the enforced removal of a President by the People acting through their Congress.

IMPEACHMENT is a JUDICIAL power and process exercised by the POLITICAL Branch of the Government, the Congress, which is the only department without ANY impeachable officers.

IMPEACHMENT is the closest thing to a JURY system that we have. In IMPEACHMENT the People themselves become the jury through the Senator-judges. Unlike the secret processes of deliberation in the Judiciary (which is called Judicial Privilege), impeachment is a nationally televised affair.

IMPEACHMENT is the SOLE and EXCLUSIVE jurisdiction of the Congress, no particle of which is shared with either the Judiciary or the Executive Branch.

Nowhere does it say that the Supreme Court Chief Justice can appear like a Jack-in-the-Box from out of nowhere and suddenly swear in the Vice President without verifying that one of the five conditions above obtains, or an election has been held for a new president. In 2001, GMA became President on the false premise that Erap was "permanently incapacitated" a claim she made herself to them in a faxed message. The Justices knew this was NOT TRUE. Erap was NOT "permanently incapacitated" on Saturday, 20 January 2001. Davide had previously agreed to do it in a breakfast meeting with Cardinal Sin, Cory Aquino, Chief Justice Davide and Gloria Macapagal Arroyo, "in order to prevent violence." Actually it was to prevent the valid acquittal of Joseph Estrada at his Senate Impeachment Trial, which had not yet even heard the Defense. Despite the strenuous objections of then Justice Cecilia Munoz Palma, the Court allowed the swearing in and ruled on Monday, 22 January 2001 that the Chief Justice Hilario Davide had the authority to swear in the Vice President. Morally that is not any different than GMA signing the ZTE deal even if she knew it was flawed because by Saturday afternoon, a shell-shocked but self-evidently NOT permanently incapacitated Joseph Estrada was televised nationally leaving the Palace. Months later, in March 2001, the Supreme Court issued its historic decision, Estrada v. Arroyo, saying Erap had actually resigned despite the incongruity of his continuing denials [sic!]. They construed things based mainly on Ed Angara's diary hurriedly put together and published in a newspaper. Edsa Dos was actually a military backed judicial coup d'etat. So much for the Edsa Dos People Power Revolution. The Constitution is not a mere technicality that inconveniences moralists. It is a Machine that our liberal fascists just don't understand and is perilous to be fooling around with, like the Ark of the Covenant.

1987 ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS ought to be read and understood by all who stand by the Consitution in this particular time of crisis. Nowhere is the Principle of Separation of Powers made more clear than here because here the JUDICIAL function of initiating and deciding with complete finality, a case of impeachment, is seen to be the SOLE and EXCLUSIVE power of the Congress. The Supreme Court does not even have the power of judicial review over such a decision of the Senate Impeachment Court. Not even the Powers of Executive Clemency can touch the verdict in any case of impeachment. It is crystal clear to me that whenever it is convened, the Senate Impeachment Court IS the Supreme Court of Public Accountability.

The public debate and court cases over Executive Privilege and Congress' Right to Information in aid of legislation AND oversight should be informed by the Principle of Separation of Powers inherent in the concept of Public Accountability as enforced by the political branch of the government. Here it is crystal clear: the Political Branch is given supreme judicial authority over these very special and important persons who are the highest "public officers" of the land in the sense that they can only be impeached to remove them prematurely from office. A Senator or Congressman, on the other hand, can be arrested and tried by the ordinary courts for serious enough offenses.

Such a sole and exclusive power, as potent as impeachment is, would not be granted to the Congress if the implied duty of JUDICIAL OVERSIGHT over the Officers of the Constitution were not considered co-equal in importance to its main LEGISLATIVE function.

Monday, February 25, 2008

Institutions or Insurgencies: Choose!

RONALD REAGAN's Secretary of State, George Schultz reportedly said in 1982,
"The Philippines is a country of forty million cowards and one Sonofabitch."

Ninoy Aquino found out a year later when he came home in 1983 just how big of an SOB Marcos really was, but Filipinos seem to have proven in 1986 that the above was only half true, although it took them long enough to prove Schultz wrong. I think many people were prepared to die when they answered the call of Jaime Cardinal Sin on Radyo Veritas. To protect the military rebels of RAM's Juan Ponce Enrile and Fidel Valdez Ramos holed up at Camp Aguinaldo in those momentous days of February, 1986, many people were prepared to use their bodies to block the tanks and troops of the Marcos regime, already then more 20 years long in tooth and claw.

Now because Marcos was indeed America's sonofabitch in the Philippines those long years, it has been comforting legend that he is all their fault. But he did it almost all on his own with help from Imelda. And what was it exactly that the Filipinos did in 1986 that they could not possibly have done in 1983, or 1973. Was George Schultz right? Why don't revolutions seem to do Filipinos much good and on the contrary, seem to lead inexorably to more revolutions?

TIME MAGAZINE tells the story of Ferdinand Marcos' last day in power on February 25, 1986 and the historic conversation with Republican US Senator Paul Laxalt, unmistakeably conveying Reagan's message to Marcos:

"At 4:15 p.m. Laxalt called Marcos, who immediately asked whether Reagan wanted him to step down. Laxalt said the President was not in a position to make that kind of demand. Then Marcos put the question directly to Laxalt: What should he do? Replied the Senator: "Mr. President, I'm not bound by diplomatic restraint. I'm talking only for myself. I think you should cut and cut cleanly. The time has come." There was a long pause that to Laxalt seemed interminable. Finally he asked, "Mr. President, are you still there?" Marcos replied, in a subdued voice, "Yes, I'm still here. I am so very, very disappointed."

In Manila it was after 5 o'clock in the morning of the longest day of Ferdinand Marcos' life. Before it was over, he would attend his final inauguration ceremony, a foolish charade carried out in the sanctuary of his Malacanang Palace. That evening, a ruler no more, he would flee with his family and retainers aboard four American helicopters to Clark Air Base on the first leg of a flight that would take him to Guam, Hawaii and exile."

It is very little appreciated what a decisive and pivotal role President Ronald Reagan played at a crucial moment of the Edsa People Power Revolution of 1986. Suppose for example that the message from Reagan to Marcos was not cut and cut cleanly but something like: "Do whatever yo have to do, we'll back you up!" ?

We might not be celebrating any such a thing as the peaceful Edsa People Power Revolution. If Ronald Reagan had not "withdrawn support" for Marcos and told him to hang tough, there might have been a bloody massacre and carnage on Edsa. Moreover, it is also under-appreciated that despite Marcos' raving insistence that he be flown to Paoay, (whereupon he could begin a bloody civil war or establish the Ilocano Republic), he nonetheless awakened the next morning in Hawaii. Aloha!

Like certain index species of frogs sensitive to environmental changes, Marcos' fall is seen by some as heralding the beginning of the end of the Cold War, being the first of many client states ("puppet regimes") of both superpowers to collapse in the years to come, though more noticeably for the Eastern bloc that came with the implosion of the Soviet Union's "Evil Empire".

But the idea that Filipinos taught the world "peaceful people power" -- or even caused the collapse of worldwide communism -- is simply too much. Mabuhay Radio of Los Angeles reveals how Bill Clinton started that idea with a magnificent piece of flattery during State visit to Manila in 1994. It has morphed into amazing claims that we are currently exporting democracy on a global scale!

CALOY CONDE of the NY Times/International Herald Tribune emails:
There's so much hand-wringing since Jun Lozada came out about People Power. Many were wondering at the seeming apathy of the public. Some even went to the extent of asking whether people power remains relevant. At least one bishop went on record saying that, in the case of People Power 2, they made a mistake in installing Arroyo. What do you make of this?
Cory Aquino, many of the CBCP's top leadership, and almost all the major politicians who helped to unseat Erap in 2001, have indeed, publicly or privately apologized to the only honestly elected Philippine leader in living memory, seriously flawed as he is. Unseating Erap may have been right, in the moral sense of what ought to be, but it was also illegal, unconstitutional and therefore unfair, because only the Senate had that power. It is metaphysically impossible to be unfair and expect to be JUST. In a way, Justice IS fairness.

The vote on the Second Envelop (16 Jan 2001) proved that Erap was sure to be acquitted at the the Senate Impeachment Trial. That was why Joker walked out and Davide soon aborted the trial instead of reconvening it. They did not abide by the Rule of Law and violated their oaths. Who, in History's vast audience will believe Erap validly and voluntarily resigned four short days later without duress and the threat of violence on his person? What first year law student can narrate what happened juridically with a straight face or without puzzlement? Even if he deserved to be removed and convicted,
Under the rule of Law, we must often abide by the WRONG result if it is fair--else a greater injustice would result. Which of course it did in Gloria Macapagal Arroyo. The sins of the Father are visited upon the children!

They didn't make a mistake installing Arroyo, who was VP under Erap. The mistake was in aborting the Impeachment Trial and not allowing the Senate to decide Erap's fate. Instead Hilario Davide, Angelo Reyes, Cory Aquino, Cardinal Sin and GMA as the main beneficiary ditched the Constitution to get rid of Erap without bloodshed. (But, DID we get rid of him after all??)

History records that Erap Estrada was treated like a moral cancer on the body politic almost from Day One of his Presidency. (For good reason!) He became a deserving target of society's moral guardians with his drinking, gambling, womanizing and intentionally Bad English as President. But his popularity and trust ratings with the Public at large have only grown despite being convicted of plunder last year. So much so that when he was pardoned by PGMA two months later, there was no public outrage of any kind. One decisive factor was the fact that Erap NEVER ran away from the charges against him, despite well publicized offers from the Palace for him to leave, free and clear, with his money and his reputation. That means that Joseph Estrada not only took his medicine like a man, he bowed to the Rule of Law.

Verily, God works in mysterious ways!

That can't be said for former Chief Justice Hilario Davide, for example, or former AFP Chief of Staff Angelo Reyes, or the VP GMA herself. Together they conspired with Cardinal Sin and Cory Aquino (who later admitted it) , to overthrow Erap Estrada four days after the Second Envelope Vote because it proved that Erap was going to be acquitted in the Senate Impeachment Trial. The entirely illegal Edsa II People Power Regime Change was premised on Erap being "permanently incapacitated" when Gloria was sworn in at noon on Saturday, 20 January 2001, as she claimed in a fax to the Supreme Court that arrived at 11:26 AM of that same Saturday morning. Later the Supreme Court retroactively changed that reason to "constructive resignation"! It's architects forced Edsa Dos to its stupendous conclusion because they had to abort the impeachment trial at all costs. They achieved the removal of Erap, but little else. And it seems, not even that!

The very essence of People Power as a genre of revolution is its bloodless and nonviolent nature. But we must not forget that graft and corruption and many other high crimes and misdemeanors are also bloodless and nonviolent, yet despicable nonetheless.

There is no high order mystery in the people's disenchantment with people power. It has failed to live up to its promises despite the damage to institutions of the Law. We have not been freed of our metastatic social cancer despite the radical surgeries of People Power.

Seeing the hardcore Edsa Dos People Power Revolutionaries now turning on the Monster they created in GMA and urging another people power amputation as a cure for Brain Cancer, maybe the Public is not showing apathy but a disdainful schadenfreude.

It's slowly sinking in.
The System of checks and balances is more important than any particular result or contingency. Democracy anticipates the emergence of EVIL at the highest levels of the government, not with the fallacies of direct democracy inherent in the People Power concept, but in the engineering design of a tripartite government and its mutually counter-vailing institutions.

MLQ3 justifies the use of People Power as a last resort for "when our representatives fail." He describes a very politically correct People Power (peaceful, egalitarian, moral, gender-neutral, organized yet spontaneous!). People Power as an extra-Constitutional Skyhook in which "the People" are able to enforce the morally right result if the Justice System cannot. Pull the tooth instead of saving it if it hurts too much from inner rot since root canals take too long even if the tooth is saved thereby. Nota bene: My problem with MLQ3 here is that we are either a representative democracy or we are not. The ideals of a direct democracy, which are being offered as a last resort under the label, People Power, are essentially ultra vires under our Constitutional representative democracy, because they violate One Man One Vote and the Rule of Law!

So far, People Power has not resulted in any real bloodbath, and perhaps the enchantment with it among the very best of our thinkers will not pass until that happens.

Impeachment should be the final stage of Public Accountability, not some imaginary process in front of, or inside a religious shrine. What needs fixing is the imbalance in the tripartite system that was wrecked by People Power 2! The Congress of the People is the INSTITUTION that has the sole and exclusive power to bring Constitutional officers to account. Davide and the 2001 Supreme Court rearranged the Machine and gummed up the works with that silly impeachment rule. That's what needs fixin'.

The Outrage of Conrado de Quiros (none better in this genre) is positively Biblical today as "Yahweh sends lightning in the direction of Baal!"

But over at Ellen Tordesillas' blog, where the Military is usually pictured as the murderous Philistine minions of Baal, strange how today they are suddenly "protectors of the people" and "outrage" from the generals and the soldiers is being awaited with bated breath. Turns out even moral outrage grows out of the barrel of a gun too, and People Power needs their help to do another "peaceful" putsch.

TIMEOUT...Eye Candy (Hat Tip: The Ignatian Perspective).
"Secret...!" Erap's response to a question about whether he is in touch with elements of the Philippine Military. He claims to be ready to take over again as President...Uggh! Then again Gloria asserts she is the president and the only president. Double Uggh!

The Traveler on Foot presents a powerful retrospective on a friar-led revolt in 1717 that led to the assassination of Governor General Bustamante. Allegory? Worth a visit just to see Felix Resurrecion's masterpiece depicting the event.
JOSEPH ESTRADA has just called upon President Gloria Macapagal Arroyo to resign. This according to Pinky Webb, reading a statement of the former president made in an interview with Al Jazeera TV in Manila this morning.

Senate Majority Leader Francis Pangilinan brings up a good point: PGMA could be impeached immediately after the Supreme Court rules that a flawed impeachment complaint (Pulido) had been given due course by the House Majority last July just to innoculate Pres. Arroyo. He said if the Court rules tomorrow the House could impeach her on Wednesday! The other important point Kiko had on ANC's noon time news was on Executive Privilege. Since Romulo Neri's case is up for resolution at the High Court, the admission of the President that she signed the ZTE deal with China despite knowing it was accompanied by irregularities becomes important to the Court's eventual verdict in this case. Since they have not decided it, they cannot ignore the facts now being widely publicized because in Senate v. Ermita, the Court itself places strict limits on the exercise of Executive Privilege. It cannot for example be used to shield irregularities! PDI's headline has Senate President Manny Villar opining that the admission could impeach the President.

Wednesday, February 20, 2008

The Catholic Umma On the Move...and the Cuckold Congress

We will probably hear from the head of the Catholic Bishops all day today, as he is besieged by the Mass Media for "urging people power".

Reading Archbishop Lagdameo's Post (MP3)

Here is the BLOG POST that has become the subject of a front page banner headline and will be in all the prime time news casts for a while, I would think. There is something exultant about the title of MLQ3's post on these developments: Once more unto the breach my friends, once more upon the belief that, as Caffeine Sparks put it parabolically yesterday, the Catholic Umma are indeed mixing it up again between religion and politics as much as the radical Christianists are doing in the Bible Belt.

But I think the view of these events by the blogger who writes Deep Caring: People Power Now or Never? (new in the Philippine Commentary blogroll) deserves an extended hearing ...
The Anti-Arroyo bishops, religious and mixed groups (with various agenda) are desperate in reviving symbols and themes of Edsa people power to unseat the present president for alleged grand corruption of her administration. But they found their call for people power unheard by the people. So, they rationalize that this inaction of the people is part of the growing process towards an inevitable people power and efforts to awaken the people must be sustained.

Because of their desperate desire to unseat a corrupt president through people power, they are even willing to crown Jose de Venecia as hero for the Filipino people and to accept all the confessions of Jun Lozada as gospel truths. They cannot even trust the legal system in facilitating the search for truth, because obviously it takes time and slow down the momentum of the inevitable people power. Extra-judicial forum, which is prone to trial by publicity, is more preferred venue, not only to search of truth, but to heighten the agitation of the people to act now. The forthcoming Edsa anniversary adds power to this call. Archbishop Lagdameo and other religious groups are using all their resources to agitate more the people in order to gather them back to Edsa, with or without the CBCP.

Time is essential in this call for people power. The call for people power is urgent; it's now or never. For the Anti-Arroyo forces, who failed to inspire people to launch another people power at the height of the Hello Garci scandal, the testimony of Jun Lozado and the break-away of Jose de Venecia, both articulating the long tradition and culture of corruption in Philippine politics, the momentum for people power is inevitable. If this momentum is lost, we need another spark plug to ignite the people's rage. D0 we really need this sense of urgency and momentum to achieve long and lasting change?

However, because of this urgency and momentum, the Anti-Arroyo forces may have sponsored many prayer rallies but failed to pause and reflect in prayer. They may have rightfully identified all the negativities of the present administration but failed to reflect and identify a leader who will lead us to a better future. Because we are in haste to dethrone a president at the height of people's rage that we simply install any leader for the vacancy, like what happened to both Edsa I and II. This is our collective ningas-cogon mentality.

Are the Anti-Arroyo groups reading the sign of the times?

First, the CBCP is divided. Not only divided but an overwhelming majority of the bishops are not in favor for the resignation of the president. Only 6 out of 125 are for the resignation of the president.

The term "communal action" needs to be explained to avoid its immediate implication as a call for people power to unseat another perceived corrupt president. Archbishop Lagdameo is obviously more comfortable to define this "communal action" as people power.

We have yet to listen from Archbishop Lagdameo to say mea culpa in behalf of his brother-bishops who are grateful for the financial gifts of gloria to their dioceses.

To put simply, the divided voice of CBCP has lost its prophetic voice to denounce the evils of the present administration.

Second, people power failed to empower the people. The first president we installed after Edsa people power, Cory Aquino, has failed to institutionalize people empowerment. She was, however, successful in installing back the economic and political elites to the power-base. She betrayed the Filipino people.

No wonder there is no single personality today who is calling the people back to Edsa has the moral integrity that inspires people to express their collective indignation against the amoral governance of gloria.

Not that the people are not angry with gloria but they see no credible voice, even among their pastors, to paint a better future where people are truly empowered. What they rather see is another transfer of power from the hands of the elites as championed by Cory, their rallying symbol for change in Edsa people power.
I suggest that we simply allow the rule of law to facilitate our search for truth and be vigilant in the entire process. Let us see to it that the culprits are penalized and will not allow another mockery of presidential pardon for plunderers and corrupt government officials and their cronies. Let us use our time and resources in the formation of the political conscience of our people. This is where the civil society must focus its effort. Of course, while we still have no highly politicized people, we should be vigilant against the corruption of the government officials. But our program of communal action is geared towards a mature voters who will select leaders who are responsible and accountable to the people.
Read it all by clicking on the entire article link.

Archbishop Lagdameo today describes the once glorious Edsa Dos People Power Revolution in this wise--
"Came People Power II in 2001: we thought that history would automatically repeat itself. It did not. With the disappointment and doubts surrounding Election 2004, we now look at People Power II with mixed emotions and interpretations. Sadly, People Power II installed a leader who lately only has been branded as the “most corrupt” and our government is rated “among the most corrupt governments.” Is this the reason why many in civil society regard another People Power with cynicism and indifference? They are afraid another People Power might only bring the country from one frying pan to a worse frying pan."
From the frying pan to the frying pan.

There is something painfully accurate about this adaptation of the more famous aphorism involving frying pans and fire. It also unintentionally reveals the belief that there can't possibly be any improvement forthcoming from another People Power regime change, but that any change, even to a different, if equivalent frying pan would be preferable to the present tirisible situation with President Gloria Macapagal Arroyo. By parity of reasoning, the good Archbishop is also claiming that it can't possibly be worse, either.

From the frying pan to the frying pan.

Now despite the headline making claims for the good Archbishop, there is actually a lot of wiggle room to what he said. Indeed, the title of his post was actually:


I think he means "looking for"--and welcoming that spirit of discovery, I would urge reflection upon what the Catholic Church did at Edsa Dos, and go from there. Because while the Edsa Dos Diehards, would locate the beginning of disenchantment with Pres. Arroyo in the 2004 Hello Garci scandal, it was at Edsa Dos when the fundamental destruction of the separation of powers, of checks and balances between and among the three branches of the government occurred. In particular, it was at Edsa Dos when the Supreme Court usurped the sole and exclusive powers of the Congress to enforce 1987 Article XI Accountability of Public Officers. Anyone who passed English in High School can read this article and realize that the Supreme Court ought to have nothing to do with its subject matter since in fact it has the largest number of IMPEACHABLE Constitutional officers!

There is absolutely no comparison between Edsa 1986 which produced the present Constitution and Edsa 2001, which produced Gloria Macapagal Arroyo by the illegal acts of its Chief Justice in conspiracy with the Chief of Staff of AFP and the very same Catholic Church, who together aborted the impeachment trial of Erap and nullified what was sure to be an acquittal. In itss decision, Estrada v. Arroyo, the Supreme Court then blessed that singularly destructive act of Hilario Davide. When the House then tried to impeach Davide for financial mismanagement of the Judiciary Development Fund they got shackled with that silly Impeachment Initiation Rule that makes a mockery of the House's EXCLUSIVE right under the Constitution to initiate all cases of impeachment. The most cuckolded institution however is the Philippine Senate. It was its SOLE right to decide all cases of impeachment that was usurped. In fine there has been an unwritten doctrine of JUDICIAL SUPREMACY in which the High Court insists that all major POLITICAL QUESTIONS must now come before its Majesty.

I wonder how it will rule for example on the EXECUTIVE PRIVILEGE claimed by Neri for what he knows of Evil...

Tuesday, February 19, 2008

How Many Relatives Do You Have at the Fourth Civil Degree of Consanguinity or Affinity?

How the Supreme Court Vastly Increased the Right of Nosey Relatives to Know our Data!

An FAQ post at the Philippines E-Legal Forum by the prolific professor and blawger, Fred Pamaos, answers many questions about the writ of habeas data, including
Who may file a petition for the issuance of a writ of habeas data?

The petition may be filed by the aggrieved party. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.
But it also raises a fascinating problem in algebra, genealogy and combinatorics that inspired today's post.

How many people could there be within the fourth civil degree of consanguinity or affinity of a typical Filipino citizen?

Consanguinity refers to all the people your are related to by blood, a biological relationship. Affinity refers to civil relationships arising from marriage (your "in-laws").

Within the first degree of consanguinity are all the people YOU could be related to directly by blood (P=parents as direct ascendants; C=children as direct descendants, S=brothers and sisters as siblings).

Clearly the minimum number of relatives within one degree of consanguinity is two, since we all have two parents. Let us assume that the typical or average number of children for every person who raises a family in a given society is 5. This means the typical or average number of siblings is 4.

Then the typical or average number of relatives within one civil degree of CONSANGUINITY would be 2+4+5 or 11 (ascendants, descendants, and siblings). Assuming further that the typical or average number of spouses is 1, we get a nice even dozen (12) as the typical or average number of people within one civil degree of consanguinity or affinity.

Let us call this number N1==typical or average number of people within one civil degree of consanguinity or affinity in a given society or community.

We are interested of course in a number we could call N4, which is the same number out to the fourth civil degree of relationship or "relativity."

To see how we get to an estimate on the UPPER BOUND or MAXIMUM value of N4, (which is the number of people that the Supreme Court has just granted the right to file a Writ of habeas data on MY behalf) let me first make the following observation:

Since each of my relatives at degree ONE also has the same typical or average number of relatives at degree ONE, this means that my relatives (in-DNA or in-LAW) at degree TWO are all the degree ONE relatives of my degree ONE relatives.

N2=N1 times N1

By a process of logical induction, we may conclude that

N3= N1 cubed and that N4=N1 times N1 times N1 times N1 or 12 to the fourth power 20,736.

Thus, if the typical or average number of children in every generation is assumed to be FIVE (5) the MAXIMUM POSSIBLE number of my relatives out to the fourth civil degree of consanguinity is 20,736 persons.

But this number is not all for how many relatives do I have by affinity?

Well, these are all of the people that are my spouse's relatives out to the THIRD degree of consanguinity or affinity. A LOWER BOUND on this number are just her relatives by consanguinity, which by the same reasons used above would be the cube of the typical number of children or direct descendants in each generation.

For our typical number of 5 children, this means that in the fourth degree of affinity, we could have as many as 12 cubed or 1728.

There are thus 1728+20736=22,464 RELATIVES AND IN-LAWS that the Supreme Court has given the right of their Writ to Habeas My Data.

What a charming irrelevance the Supreme Court has made of the very provision they claim empowers them to establish such Rules of Court:
1987 ART. VIII Section 5. The Supreme Court shall have the following powers:
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
The SUPERNAL IRONY of all this is the amazing claim by the Court in its Rule on the Writ of Habeas Data (pdf) that it is protecting my RIGHT TO PRIVACY [SIC!] the blogosphere...

PDI Senior Editor John Nery (Newsstand Blog) proclaims a virtue: “...fairness in procedures for resolving conflicts is the fundamental kind of fairness, and ... it is acknowledged as a value in most cultures, places, and times; fairness in procedure is an invariable value, a constant in human nature.” Even in an inconstant Press I might add! Could PDI be turning towards the light and away from the darkness of Press Freedom Uber Alles? Will that great newspaper ever grow up and become an institution instead of an insurgency? Maybe with John's help...

AMADEO has The Ignatian Perspective ... Jesus Christ surveys the Blogosphere

The Warrior Lawyer points to an essay by Dean Raul Pangalangan in which he addresses institutions:

"Our Constitution was designed so that we can enforce public accountability through the mechanical working of institutional checks and balances. What Gloria Macapagal-Arroyo has done is to destroy those institutions and pervert just about all the agencies for public accountability. Impeachment? Just trigger the one-year bar with a bogus complaint, lock in the votes, and divide the spoils with pliant congressmen. The Ombudsman? No worry. It wouldn’t move against the Palace and, even under pain of contempt from the Supreme Court, it hemmed and hawed before it charged anyone for the fraudulent computerization of the Commission on Electins. And the Department of Justice? Oh, that’s just a misnomer.

Amid the debris of failed institutions, only the headstrong whistle-blower remains standing as the last check on presidential abuse. Gloria Macapagal-Arroyo should know the power of a witness who steps forward to tell the truth. That is how she came to power at EDSA People Power II and, should it come to pass, that is how she may be dethroned as well."
I think this misconstrues what happened at Edsa Dos. It was not Gloria Arroyo destroyed Checks and Balances then, but Hilario Davide and the Supreme Court--by aborting the Impeachment trial of Erap Estrada and nullifying the for-certain verdict of acquittal that the impeachment process was about to produce; by ignoring the explicit provisions on presidential succession and the warning of Justice Cecilia Munoz Palma; by calling Mutiny and Treason "withdrawal of support"; by usurping the SOLE and EXCLUSIVE institutional rights of the Congress over the Accountability of Public Officers ---thus did the Supreme Court destroy Separation of Powers and Checks and Balances!

Are we not utterly lost if the LAST check on presidential abuse is the headstrong whistleblower?

JEGO notes that there are no dinosaurs on Saturn's moon Titan but an awful lot of petrol. No SUVs on Mars, either, despite its steadily shrinking polar ice caps.

Just imagine the poignant photoblography of Senor Enrique in say, the year 2108.

There is even more evidence now that IVAN ABOUT TOWN is really a foodie blogger, not a backpacker. He treks to EAT! (I'm ready. Let's go!)

Groundhogtech reports on the launch in North America of China's first CELL PHONE: the ZTE C88.

The unit will retail for between $129 and $149 and is described as being similar to the highly popular Motorola Razr --- except it's a lot THICKER!

I suppose it's just like the ZTE National Broadband Deal-- no corruption, unless you look under the hood.

I'm writing my 22,436 relatives to moderate their greed. Buy Motorola. It's thinner.

FRED PAMAOS (Philippines e-Legal Forum)
examines how the processes at the Ombudsman affect the Senate investigations into the ZTE NBN deal. He cites the conflicting cases of Bengzon v. Blue Ribbon Committee and Standard Chartered Bank v. Enrile. Read it all.

IS DULMATIN DEAD? ABSCBN NEWS in Manila is reporting on its noon day newscast that Federal Bureau of Investigation (FBI) agents have arrived in Zamboanga City to perform forensic and DNA examination on a cadaver said to be that of the suspected Bali Bomber, the Indonesian Jemaah Islamiyah fugitive with a TEN MILLION DOLLAR reward on his head. The report said this "Dulmatin" may have been killed in an encounter between Philippine Marines and Abu Sayyaf terrorists last January 31 in Tawi-tawi, Mindanao Island.

The link to the Rewards for Justice Program is one of the oldest on my blogroll.

SYMBIANIZE has a lot more of this kind of stuff...I call it Lozadiana, pop art being spawned by the scandal.

SOME SENATORS are embarrassing themselves on national TV. For example PIA CAYETANO claims to be interested in the production of methane biogas from sump pumps as an alternative source of energy. What a ditz! Methane IS "biogas". She chairman of the environment committee. I guess she's never heard of Malampaya! Susmaryosep! Here's Wikipedia for you Senator Pia, Your Honor. "When methane-rich gases are produced by the anaerobic decay of non-fossil organic material, these are referred to as biogas."

Ayala Corp.'s slick 3D animation presentation of the Glorietta 2 basement did reveal the space between an old floor and a new floor above the basement, in which a deadly miasma of methane and diesel fumes accumulated and later ignited and exploded.

An earnest and honest question did come from SEN. RODOLFO BIAZON of the Senate Defense Committee. He wondered how "lighter than air gases" like Methane could accumulate in the basement when that space was not strictly speaking air-tight since the basement space communicates with the outside through an open stairwell.

The simple answer is that a lighter than air gas will be trapped in any pocket or subspace of the larger basement space which is HIGHER than the opening to the outside.

Juan Ponce Enrile was good though with: "Maleleche!" as he scolded the Ayala and Makati Supermarket reps.

Marvin Acerson (La Vida Lawyer) made a rare but worthwhile public appearance today on the The Explainer which tackled the hot topic of the week: the Truth.

Monday, February 18, 2008

Invoking Executive Privilege is like Taking the Fifth Amendment

FOUNDING FATHER JOAQUIN BERNAS, S.J. has suddenly realized he doesn't like Senate v. Ermita, the unanimous Supreme Court decision on EO 464. (In my original Commentary when the decision was promulgated, I likened it to a Decision that King Solomon would never have made in which He offers to cut the Baby of Justice in half. And does!) But the good Fr. Bernas only obliquely expresses his displeasure in the last line.--
"In conclusion, the President would do the nation a great favor if she were to withdraw Executive Order 464. Because it is justifiably seen as a serious obstacle to the discovery of truth, it is a major cause of the growing outcry of the public against the current administration."
Why does Fr. Bernas beg the President to do the nation a great favor and withdraw the gag rule EO 464? Isn't it because the Supreme Court in Senate v. Ermita actually upheld the Doctrine of Executive Privilege as detailed in EO464?

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

      1. Conversations and correspondence between the President and the public official covered by this executive order
      2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged
      3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements
      4. Discussion in close-door Cabinet meetings
      5. Matters affecting national security and public order
To be sure, the implementation of EO464 was heavy handed and clearly intended to obstruct the Right of Congress to inquire into Executive Dept. shenanigans. And the Supreme Court embellished its criticisms of these imperfections, while extending the kindliest attitude of judicial construction and advise for the next time it needs to be invoked. I early on got the impression that Senate v. Ermita is an advisory opinion and judicial tutorial for present and future Presidents on how to invoke the privilege, when, where, by whom and while bending over backwards to "construe" the innate constitutionality of EO 464. In my opinion, the Supreme Court in Senate v. Ermita has elevated the Arroyo Doctrine of Executive Privilege to the status of a Right Against Self-Incrimination by the Executive or her alter egos in Congressional inquiries.

Invoking Executive Privilege is therefore equivalent to "taking the Fifth Amendment." It is a kind of institutional right against self-incrimination. When an individual citizen for example, "takes the fifth" and refuses to answer questions, (say in a Congressional inquiry), that may tend to incriminate him, that person is exercising a sacrosanct Right to Privacy, the right not to speak. In the context of the Garci interrogations in the House, I have opined that The Right of the Public to Know Ends at the Right Against Self Incrimination. "Taking the Fifth" is clearly a boundary limit on the Public's Right to Know. In Senate v. Ermita, the Supreme Court established the point for the public that executive privilege is a right to control confidential executive information. Can the Executive and her alter egos "take the fifth" in a similar manner and refuse to answer questions by invoking executive privilege?

In the coming days, the Supreme Court will be issuing another historic decision on Executive Privilege when it rules on the petition of Romulo Neri to stay his arrest order for Contempt of the Senate. How will they rule? Well, lookit. The Supreme Court itself won't allow Newsbreak to inspect its Public Guest Logbook at Padre Faura in connection with bribery gift allegations, claiming Judicial Privilege of conidentiality similar to Executive Privilege.
A BLOW TOO SOON? Chief Justice turned paper pundit, Artemio V. Panganiban, hails the Supreme Court for Chavez v. Gonzales, the new decision on public airing of the Garci Tapes. He keeps a very straight face while agreeing with his successor and ponente that
G.R.No. 168338 Chavez v. Gonzalez. "... in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late."
Well, to be kind, this judgment came long before the Last Judgment. But certainly too late for the Garci Recordings to have been used in the Congressional processes of impeachment, which were frustrated no less by the force of numbers and Davide's rigid Once Per Year Rule, as by the UNSETTLED LEGAL STATUS of the Garci recordings. Verily, the real power of the Supreme Court is in deciding WHEN to decide a case, if at all. After Virgilio Garcillano led the House on a merry go round wild goose chase and filed for a petition to bury the Garci Tapes as Poisoned Fruits, the Supreme Court has inexplicably left them in the Deep Freeze for two years. If indeed the challenged acts of the Justice Secretary and NTC were PATENT INVASIONS OF A CONSTITUTIONALLY PROTECTED RIGHT, why so long before striking a blow for freedom? If the Court had said, "Better late than never." there would have been less self-serving gracelessness than claiming they strike a blow for Press Freedom now, years later, at risk of doing so TOO SOON [sic!].

Reaching deep into ancient Rome and modern France, Manuel L. Quezon III quotes Titus Livy's marvelous explanation even of our current predicament:
"We reached these last days when we could endure neither our vices nor their remedies. The result of such a paralysis is neither the extermination of vice nor the institution of any actual remedies. It results in no real peace, but instead, mass migration."
It's the lament of every failed ruling class, but one has to admire MLQ3's mournful, but infinite optimism. Read it all.

Mon Casiple has such a touching faith in the Middle Class. Jessica Zafra ("Mistress of the Universe") is a lil more disdainful.

BUTCH DALISAY (The Pinoy Penman) names the newest seedlings of Philippine letters...
ON BEHALF of the University of the Philippines Institute of Creative Writing (UPICW), I’m very happy to announce the names of the 12 fellows who will be joining us in Baguio this April for the 47th UP National Writers Workshop. The fellows are: (Fiction in English) Tara Sering, Luis Katigbak, Ian Casocot; (Poetry in English) Ana Maria Katigbak; Vincenz Serrano; (Creative Non-Fiction in English) Rica Bolipata Santos; (Drama in Filipino) Nicolas Pichay, Rodolfo Lana Jr.; (Poetry in Filipino) Roberto Añonuevo, Frank Cimatu; (Fiction in Filipino) Abdon Balde Jr., Allan Derain.
Guess how many are bloggers?

Manilenyo in Davao posts the whole Harapan episode on YouTube.

Bruce over at Finance Manila has a nice picture of the Balimbing (as the patron fruit of politics.)

The Deep Caring blogger doesn't like the planned "Edsa-dification" of the ZTE scandal, especially by the Jesuits. I agree with his cautionary tone about "religious militants" who have agendas beyond the immediate crisis. Jesuits have a lot to answer for...ever since they mishandled another one of their own in 1896. Animo La Salle! (Oops, let's just not mention Ricky Razon!)

Neil at A Simple Life pens a personal note to Jun Lozada, ang probinsyanong instik.

The Spy in a Sandwich reminds budding writers of a literary contest open to all being sponsored by the UP Institute of Creative Writing. Check out the categories and the prize money:

NOBELA o KOLEKSIYON NG MGA KATHA (sa Filipino) P200,000.-
POETRY in English P200,000.-
TULA sa Filipino P200,000.-
CREATIVE NONFICTION in English P200,000.-
MALIKHAING SANAYSAY sa Filipino P200,000.-

Deadline for submission is March 31, 2008 5pm. Still time to write that great Filipino novel or poem you've been working on since...

A Catholic Umma?
Caffeine Sparks is showing off her wicked sense of humour!

There is always so much nostalgia and deja vu over at the Philippine Free Press Online, whose retrospective publishing of articles from a bygone era is invaluable and much appreciated. Here the real Dean Jorge Bocobo and Manuel L. Quezon struggle with Independence.

Sunday, February 17, 2008


While I am gone, you might want to read The Good Manoling Morato. It seems to have had the intended effect. I expect as many Ateneans as Lasallians at La Salle Green Hills High School in Mandaluyong City today, as well as most other intelligent and compassionate people from all Schools. St. John Baptist de La Salle. Pray for us! Live Jesus in our hearts. Forever.

Friday, February 15, 2008

Supreme Court Decision on Garci Tapes and Press Freedom

The Supreme Court decision on the Garci Tapes has been posted on Padre Faura's Website. G.R.No. 168338 Chavez v. Gonzalez.

CAVEAT 1: The Supreme Court proclaims the swiftness of its decision with a straight face, so don't be giggling in the gallery or you may be cited for contempt. So what if "swift" means TWO YEARS LATER!--
The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late.
Well if the Court had struck any sooner perhaps freedom would've come with the Second Coming. It is not of course the indignity of King Solomon thus seen to be wearing no clothes, but seeing him so hurriedly, yet way, way belatedly, donning the disguises of Swift Alacrity and Deep Concern for almighty and sacrosanct Press Freedom. Ah but wait, here is the gist of the Decision..."The clear and present danger rule applies to content-based regulation of print and broadcast media" ... WHOA! But I thought the Antiwiretapping Law was content-neutral...

CAVEAT 2: Petitioner Frank Chavez prays for certiorari and prohibition against Respondent Justice Sec. Raul Gonzalez and the NTC so as to allow the free airing of the recordings. The following passage in the disposative portion of Chief Justice Puno's ponencia is undoubtedly the gist and the heart of the Decision.
We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a person’s private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.
I am frankly amazed at the above reasoning, which amounts to a risible, obsequious and idolatrous position towards Press Freedom that it simply does not deserve. Organized journalism is the commercial right to buy and sell information. We must revere it as we do Free Enterprise Capitalism itself. But should we be willing to IGNORE clear violations of the Antiwiretapping law because the High Court thinks we would end up suppressing Press Freedom by taking full cognizance of those violations? There is however no detailed discussion in the main decision of which violations the Court has chosen to ignore.

I concur entirely with the result that the airing of the Garci Tapes cannot be restrained or prevented by government. They became ineradicably and irreversibly a part of PUBLIC KNOWLEDGE once they had fallen into the vast digital public domain of the Internet. Once that happened, all attempts at suppressing them amounted to crying over spilt milk and trying to get the toothpaste back into the tube by legal fiat.

Since the ability to suppress them had been made MOOT and ACADEMIC within hours after Ignacio Bunye allowed the Palace Press Corps to make copies of the CDs containing the Garci recordings, the Supreme Court decision itself is futile, or should I say, SUPERFLUOUS.

Press Freedom was already guaranteed by the World Wide Web and hundreds of backroom CDRom replicators who made thousands of copies of the Garci recordings. All this decision serves to do is to juridically DENY that there WAS a violation of National Security by whoever did the wiretapping, such denial being done under the sanctimonious guise of defending Press Freedom!

CAVEAT 3: The Court noted the fact that the Broadcasters of the Philippines (KBP) had actually agreed to comply with the respondent NTC's call for "responsible broadcasting" and decided NOT to side with Petitioner Frank Chavez in his suit. But the Court would force Press Freedom even upon those more concerned with jealously guarding their lucrative and job-sustaining Franchises on the electromagnetic spectrum!

The following statement reveals a disturbing lack of appreciation for the plain and simple meaning of NATIONAL SECURITY:
"There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State."
If the illegal wiretapping of the cellphone conversations of the President and Commander in chief (and apparently of anybody else with accounts at Globe or Smart!) does not constitute clear and present dangers to national security, I don't know what does! That such an obvious violation of the national security laws occurred in the wiretapping activities that produced the Garci tapes is what the Supreme Court is tiptoeing around and trying to ignore by bombastic obeisances to Press Freedom.

CAVEAT 5 The Court argues, correctly of course, that respondents have not passed the "clear and present danger rule" which would justify even the takeover of broadcast networks as stated explicitly in their Franchises. Why the Court undertook no discussion of these laws can only be explained by the cavalier attitude that they can pick and choose when to recognize violations of the law. Har har. In fine, by waiting those two long years in which their passionate devotion to liberty of speech must have had to remain stifled, they had indeed made amply sure there is no longer any "clear and present danger" from the recordings. JUSTICE DELAYED was PRESS FREEDOM DENIED, if not for the Internet! But I am sure they've got the adulatory HEADLINES tomorrow from a grateful if pusillanimous Press.

CAVEAT 6: Is there anything in the Decision that restrains radio, tv or print from now freely airing the Garci Tapes? Obviously not. What about any other wiretapped material? Press Freedom right? And supreme casuistry.

CAVEAT 7: Now we really get to the meat of the matter. The Court asserts that for all "content based regulation" the test of Constitutionality is the clear and present danger rule, which means, the challenged acts must be justified by the existence of a clear and present danger. I would agree there was nonesuch, and the Court said respondents failed to give evidence of it. But isn't the Antiwiretapping Law a "content-neutral law"?? In other words, what makes a wiretapped conversation illegal is not the subject matter of the conversation, but the mere act of unauthorized wiretapping itself. It does not matter WHAT the conversants are discussing, the FACT of surreptitious recording is what makes it illegal. Therefore, the attempt by the NTC to suppress the airing of these wiretaps did not rely on what they contained but on how they were obtained. This attempt at suppression was spectacularly futile anyway, for reasons I've already pointed out, so there could not have been any diminution in the public's right to know about them even if the broadcasters were prevented from doing so. Thus, the Court is unconvincing on its main point of "content-based regulation" applying to this material.

CAVEAT 8: Ironically, this decision will be hailed as another brave defense of human rights by the Puno Court, this time as a defense of Press Freedom. Yet has the Supreme Court not been a part of the wiretapping coverup all along? After all the greatest power of Court is in what it decides NOT to decide. But okay the Supreme Court upholds press freedom in this case, even if the main beneficiaries of the decision -- the enfranchised media outfits of radio and tv -- neither wanted nor needed their protection in this case. They left poor Frank Chavez all alone to fight for their rights. But the Court was not to be denied its brownie point, no matter how superfluous the decision now is. The message, ominously, is that Press Freedom allows Mass Media, including broadcasters, to freely air even allegedly wiretapped material, all for the sake of the Public's Right of Information of course. Habeamus data!

The Supreme Court's two year delay is inexplicable except as part of the wider coverup. Else, why did they put to sleep for two years what they call a PATENT VIOLATION of the Constitution involving PRIOR RESTRAINT in the challenged acts of respondents Justice Secretary and National Telecommunications Commission? By delaying, the Court has denied the Garci Tapes any substantive role in the investigations of Congress, in particular into matters of National Security at the Senate, and no less than three impeachment attempts in the House. During the time the Supreme Court was cogitating on the matter, the physical evidence in despicable crimes against the Antiwiretapping Law, the election codes, and illegal use of the Military for partisan political purposes, has been in an official LEGAL LIMBO.

That is the service the Supreme Court performed for the Palace throughout this whole sorry affair. An Act of OMISSION that deprived the Constitution and the people of Accountability from its public officers. Do they now expect laurels for ruling so belatedly on this issue. Their upholding of Press Freedom in this decision is SUPERFLUOUS and TARDY to the point of being DEVIOUS. Hours after Bunye allowed media to make digital copies the material had fallen into the public domain, the well of PUBLIC KNOWLEDGE from which neither law nor decision can rescue it. If the Constitutional violation of the challenged acts were PATENT, then why did they wait until after three impeachment attempts had been frustrated for lack of juridical guidance on the probative value of the recordings. The Court takes ZERO judicial notice of the processes that occurred in the House and Senate. Nothing speaks more of their disdain for the coordinate Branch of the Congress, a lethal habit learned from Hilario Davide.