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Mar 26

A perfect trap

Whoever expected them to cash in so soon? See Palace: Many items in ZTE deal confidential. But then, cash in, they must, since Puno ‘disappointed’ with SC majority decision.

I myself am surprised the Chief Justice has gone beyond his dissenting opinion and made the rounds of the media outlets. But then again, with nine of his colleagues retiring next year, he is in the unenviable position of having his name attached to what might end up being called a puppet supreme court.

See SC ruling on Neri shows a Palace-controlled court: sources:

It was a case where Malacañang worked overtime lobbying with justices who could provide the swing vote, abs-cbnNEws.com/Newsbreak gathered from court insiders and observers who requested no attribution for fear of reprisal or jeopardizing their pending cases in the Tribunal.

We learned that just before the oral argument last March 4, the justices were evenly divided on the issue, a situation that did not favor Neri since he had to get an absolute majority for his petition to be granted.

 

It was in the two-week gap that followed that the Palace applied pressure on some justices. One justice reportedly was promised something in exchange for voting for Neri, while the loyalty check was applied on the others.

A justice known to be close to Arroyo was reportedly instrumental in the appointment of newly-named associate justice Arturo Brion, a move that assured the President that Brion would vote for Neri.

Brion, who was appointed only last week, participated in the voting.

 

One of the sources said the Palace learned its lesson from the Feb. 12 “Hello Garci” decision where a majority of nine justices, against six, ruled that the warning of the National Telecommunications Commission and the Department of Justice against the playing of the controversial tape is illegal.

In that case, the Palace apparently did not exert pressure on its appointees in the SC.

One of the sources said Puno was aware that the initial stalemate would not hold, and that the numbers will tilt in favor of Neri. This was why he proposed the compromise solution that would have allowed Neri to testify in the Senate but without being confronted with the three contentious questions where he invoked executive privilege.

 

The Senate, however, rejected the compromise solution, took the risk, but paid a heavy price.

Simply put, the Neri ruling implies that “the SC is under the control of the President and that Puno does not seem to have the majority of the justices,” the sources said. “9-6 will be the configuration for the rest of the year.”

 

It is one clear sign, they said, that the SC will be Malacanang’s rubber-stamp in the last two-and-a-half-years of her term. Arroyo is supposed to step down in June 2010.

One source, who has intensive background in the SC, said that from a short-term standpoint, Malacanang may control the Tribunal, but her hold could loosen in the long-term.

 

The justices, who are her appointees, might see the need to finally exert independence as the end of Arroyo’ term nears. “There will be a change of feelings shortly before she steps down.”

And so, if he is to be the lone warrior left in the high court, perhaps the Chief Justice wants the public to know that he won’t be tied down.

Chief Justice Puno penned a dissenting opinion with history, with posterity, in mind. It’s a dissenting opinion with future generations of lawyers, perhaps, in mind, and to this end, I find the comments of soliloquyboy, a law student, interesting:

On TV, Biazon was wondering whether or not the case would be applicable for all members of the Cabinet, or only for Romulo Neri. Sadly, that’s not exactly something that can be answered on its face. As part of our country’s jurisprudence, the case has become technically, a part of our legal system, thanks to Article 8 of the Civil Code. As my ObliCon professor Sir JJ Disini would say, time will tell whether the case is good law or not.

Think of it this way: this case, to me, is a case of Ermita-Malate Hotel vs Manila Prince Hotel. It’ll either be Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila , where it can become one of the most oft-quoted cases in Philippine history, especially since it’s the first or one of the few where you have two branches of government really duking it out, on the basis of executive privilege (Senate vs Ermita doesn’t count). Or it can become Manila Prince Hotel vs GSIS , where it’s a legal punchline, according to my Legal Method professor.

Back to the Chief Justice. Read his dissenting opinion, the whole thing. But for now, some extracts from what he wrote, and which gives the gist of what he was trying to argue:

The doctrine of executive privilege is tension between disclosure and secrecy in a democracy. Its doctrinal recognition in the Philippines finds its origin in the U.S. political and legal system and literature. At the outset, it is worth noting that the provisions of the U.S. Constitution say little about government secrecy or public access. In contrast, the 1987 Philippine Constitution is replete with provisions on government transparency, accountability and disclosure of information. This is a reaction to our years under martial rule when the workings of government were veiled in secrecy…

…A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. …U.S. v. Nixon, as well as the other related Nixon cases … as well as subsequent cases, all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case, quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications.

 

The statement in Senate v. Ermita that the “extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure” must therefore be read to mean that there is a general disfavor of government privileges …especially considering the bias of the 1987 Philippine Constitution towards full public disclosure and transparency in government. In fine, Senate v. Ermita recognized the Presidential communications privilege in U.S. v. Nixon and the qualified presumptive status that the U.S. High Court gave that privilege…

 

Throughout its history — beginning with its use in 1792 by U.S. President George Washington to withhold information from a committee of Congress investigating a military expedition headed by General Arthur St. Clair against Native Americans — executive privilege has never justified the concealment of a wrongdoing… the first U.S. President, Washington, well understood the crucial role he would play in setting precedents, and so he said that he “devoutly wished on my part that these precedents may be fixed in true principles.” (emphasis supplied) President Washington established that he had the right to withhold information if disclosure would injure the public, but he did not believe that it was appropriate to withhold embarrassing or politically damaging information.

 

Two centuries thence, the principle that executive privilege cannot hide a wrongdoing remains unchanged.

…Article VI, Section 21 of the 1987 Constitution provides for the power of the legislature to conduct inquiries in aid of legislation. It explicitly provides respect for the constitutional rights of persons appearing in such inquiries. Officials appearing in legislative inquiries in representation of coequal branches of government carry with them not only the protective cover of their individual rights, but also the shield of their prerogatives — including executive privilege — flowing from the power of the branch they represent. These powers of the branches of government are independent, but they have been fashioned to work interdependently. When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole.

It will take some time for legal scholars to digest the Supreme Court’s decision but some views have begun to emerge from lawyers and non-lawyers alike (see Brown SEO, and The Philippine Experience and Dissenting Opinion). Not being a lawyer, I’m having to read and reread the decisions. But I do find Philippine Commentary’s argument convincing: The Fallacious Heart of Neri v. Senate is a False Distinction About the Powers of Legislation and Oversight.

But then, as I’ve said before, I subscribe to Woodrow Wilson’s view that Congress’ oversight power is actually more important than its law-making functions.

Read, too, what smoke has to say.

As for lawyers, I asked Atty. Edwin Lacierda, who teaches constitutional law, what his initial thoughts were and this is what he said:

It’s a really bad decision. It pays lip service to the doctrines laid down in Ermita and expands executive privilege to the detriment of legislative inquiry and right to public information.

What is awful with the decision is that the majority took as gospel truth the claim to executive privilege. This ran counter to the actual oral arguments where Atty. Bautista could not even specify how diplomatic relations with China would be damaged. Parang hindi nakikinig… sa oral arguments. The explanation of Bote was pathetic… If you go to the transcripts of the oral arguments, you will find Bote wanting and was demolished by the questions and arguments of Carpio, Puno et al.

In his blog, The Warrior Lawyer opines,

Of course, CJ Puno did not have the numbers.

This will allow Secretary Neri, and Malacanang, to sleep better at night as, unless the Court reverses itself upon motion by the losing respondents (an extremely remote possibility),Neri and members of the President’s official family now have the full weight of the Supreme Court behind their refusal to testify at future Senate hearings. Even if they appear, they will not provide the answers the Senate and the people are looking for and simply hide behind the skirts of executive privilege. Neri was a big fish that got away, leaving Jun Lozada and party high and dry.

 

Unless the Senate has another “surprise witness” in the wings, its investigation into the ZTE scandal is bound to run out of steam.

In his blog, A Simple Life, using a chess analogy, suggests everyone should pack it up and go home:

Three weeks ago, the essential pieces for the end game — the black rooks (senators) were busy playing arrogant by rejecting the SC compromise, and the white rooks (Supreme Court justices) were simply choosing not to get into play right away by deferring their decision on Neri’s petition.

Yesterday, the white rooks made a decisive move that caught the black rooks by surprise, a blitzkrieg move that crippled the black rooks and rendered them irrelevant towards the end game.

 

Since the white rooks have now effectively flanked the white king (Arroyo administration), and since the white knights (military and police) are still strategically positioned at the center of the board, ably supporting the white queen (Pres. Arroyo), the game now appears to be winnable for the white pieces.

However, since the black pawns (Lozada, et al.) and the other black pieces (anti-Arroyo groups) are still in a relentless, but ineffective checking mode (coup attempts, calls for resignations, interfaith rallies, Masses “for truth”, Senate inquiries “in aid of grandstanding”, media offensives, etc.), the game could still end in a draw — due to perpetual checking.

 

The black pieces should now concede to the futility of a perpetual check. It could go on forever, but it could lead to nowhere. We all should accept a mandated draw. Nobody won. We all lost somehow. The ZTE-NBN game is over.

So here we have two perspectives essentially in agreement on one thing: that the Senate hearings have been so seriously undercut as to be useless, though Warrior Lawyer thinks another witness could give the hearings a second wind while A Simple Life thinks it’s game over, folks.

But could it be that all it is, is yet another stalemate: too soon to tell if the stalemate is permanent, because no new fronts can open up? Not that all previous fronts haven’t resulted in a stalemate. They have.

Last August, Randy David, in Hello Garci and Philippine democracy , observed:

Both the generals and the Comelec officials have dared their accusers to bring them to court. They know, and everyone knows, that you need solid evidence for this — the kind of evidence that precisely only an authorized and empowered investigative body can put together. But whom should we turn to for this? The National Bureau of Investigation under the Department of Justice headed by Secretary Raul Gonzalez? The Philippine National Police under the Department of Interior and Local Government headed by Secretary Ronaldo Puno?

No one trusts the independence of these government agencies, particularly when it involves Ms Arroyo. Together, Secretary Gonzalez and Secretary Puno have done more than any of their predecessors to undermine the autonomy and efficiency of the investigative and prosecutorial offices under them. This is the crux of our present institutional crisis. The imperatives of regime survival have assumed a higher priority over the integrity of our institutional system. The outcome of this has been the corruption of institutions. In turn, the weakening of our legal and administrative institutions has encouraged the politicization of almost all issues. This is what eventually turns the public against politics itself, paving the way for a government devoid of politics — a dictatorship.

What accounts for the Palace being able to hold the line?

The public insistence on constitutionality, when confronted by an unconstitutionally-inclined regime, requires those who oppose it to be in the situation of being in a boxing ring but fighting with one hand tied behind one’s back.

All the while duking it out with an opponent who is not only fighting with both hands, but who’s concealed horseshoes in both gloves. I explored this to some extent in A limited and limiting consensus last December.

I am continuously astounded by those who insist there’s no need to worry, because the present isn’t an exact duplicate of the past. Since Marcos isn’t being aped, the orangutangs in power must neither be Marcosian or up to Marcos’s tricks.

It is like saying, Marcos mugged democracy. Today, no one is bruised and bleeding, no one’s being mugged; everyone is walking around (within limits, but each limit is perfectly legal even if unprecedented!); therefore, there must be no mugging of democracy and if there’s no actual mugging, there’s no criminal, either. It ignores the changing nature of crime -and criminals. Why engage in mugging if you’ve perfected white collar crime?

It’s a perfect trap: if it doesn’t exactly act like Marcos, it can’t be a danger on par with that Marcos presented in the past; but even so: what is the alternative? The ultimate trump card. It justified the original sin -stealing the election in 2004 was excused as par for the course because it was preferable, anyway, to risking the defeat of the incumbent- and excuses every continuing crime on the basis of “I will wait ’till 2010!” And if, as I personally believe, 2010 finds her still in the saddle?

Well, that old trump card yet again: “Yes, but… who will replace her anyway?”

From my computer’s handy-dandy dictionary, comes what this perfect trap resembles:

Möbius strip /’mœ-be-as ‘strip/

noun

 

a surface with one continuous side formed by joining the ends of a rectangular strip after twisting one end through 180°.

Oh well.

Mon Casiple says the Supreme Court passed the buck -to the people:

The Supreme court decision further burdened the people with the responsibility of exercising sovereign direct democratic action in settling the political crisis. All the other power institutions have failed or are failing in enforcing the majority people’s will expressed time and again in surveys, street actions, and other fora of direct democracy.

People power is on the march but it will have to spread and broaden among the people even as it develops its leaders and constituency. It will not be a simple rally in EDSA or Makati but more of the same mobilization process reminiscent of the struggle against the Marcos dictatorship.

Given the required time for mobilization of the people, we are facing the real possibility of an extended political crisis in the coming months and years. The 2010 elections–far from a benign and normal democratic exercise–may be held within the context of tumultuous constitutional or extra-constitutional challenges. This may include attempts to force a constitutional change process designed to extend the power of the President, electoral machinations to have a pro-GMA presidential successor, desperate opposition moves to unseat the president, and a general political polarization.

It really depends, I suppose, on how serious one thinks the threat is, and whether the threat can be forestalled by playing for time, or playing to win. The Palace wants everyone to think that the country wins by playing for time; I think that the country loses if it plays for time, because the Palace is playing to win -and win big. But I also believe that most people want to think that the Palace wouldn’t -or won’t, or can’t- extend the game past the time limit.

Some people I talk to think that the minimum goal has already been met: that the President can’t stay in office past 2010. My response is if you believe that, well and good -then pack it up, right now, and hold your peace henceforth. the thing is, I can’t pack it up, because I’m personally convinced that the moment there’s a lull in the fighting, the trumpets will sound in the Palace and they will go on the offensive.

And part of me has the sinking feeling that those who claim they would be first in line the moment the President shows any inclination to stay on, won’t be hastening to the front.

Instead, they will shrug, and say…

“Well, she has a point. Who will replace her, anyway?”

A perfect trap. And a color of constitutionality is preserved throughout!

But then the color of constitutionality might be the only alternative for those unwilling to look down into the abyss.

A satirical look at the decision, courtesy of Uniffors.

Or, as Ricelander’s Blog puts it, satirically, too, it was a win-win:

 

Two souls are at stake, his and his President’s. He tells the truth, he damns his boss. He tells a lie, he damns his own. He can’t be too selfish taking care only of himself. His boss is such a nice woman.

How do you solve this dilemma, economist-style?

 

Well, throw the problem to an institution. An institution has no problem about souls. The Supreme Court is an institution; it has no soul… I mean, like that supposedly humans have. Perfect shield. He answers no question, he tells no lie, he tells no truth. Two souls saved - at no cost.

Speaking of souls, and so that I might as well close this on a more optimistic note, here is, first of all, a letter of endorsement from the Jesuit Provincial, Fr. Huang:Letter endorsing Guidelines, 3-25-08, final version.pdf

The letter serves as an introduction to the following, which makes for instructive reading:SJSA Commission Guidelines for Communal Discernment and Action.pdf I can say that it is an objective document that is worthy of widespread disseminationand consideration. Consider, for example, the following:

“How does one address the GMA problem?”

 

d. Call on GMA to resign. There are individuals and groups who have been calling for President Arroyo’s resignation since 2005 and continue to hold that position as a matter of principle. At that time, the CBCP itself recognized the call for the President’s resignation, as well as for a “Truth Commission” and impeachment, as legitimate options under the guiding principles of accountability, constitutionality, non-violence and effective governance. While the bishops did not call on President Arroyo to step down, they asked her to discern “to what extent she might have contributed to the erosion of effective governance and whether the erosion is so severe as to be irreversible.” Therefore, those who in conscience have made a decision that the President should not remain in office deserve respect. Their call for her to resign voluntarily is one of the options provided for in the Constitution. However, it also needs to be pointed out that while this position is one of principled moral conviction, it ceases to be a real political option if GMA remains resolute that she will not resign voluntarily.

 

e. Cabinet declaration of incapacity of the President. The Constitution provides that a majority of Cabinet members can declare in writing to the Senate President and the House Speaker that “the President is unable to discharge the powers and duties of his [her] office” (Article VII, Section 11). This is a constitutional way of removing a President who is seen to be physically or mentally incapacitated, but the meaning of this provision may be interpreted more broadly. This is one scenario for an “internal or Palace coup” within the GMA regime. But such decisions on regime change tend to be elitist, as they are dependent on so few people. This declaration can be challenged, however, by the President, in which case Congress may confirm the Cabinet decision by a two-thirds vote of the two houses of Congress voting separately. Note that this requirement is even more stringent than the one-third percentage required for the House of Representatives to send an impeachment complaint to the Senate for trial.

 

f. Oust GMA. When faced with the President’s refusal to resign voluntarily, those who are willing to push the demand for her to step down to the point of employing even extra-constitutional means must be reminded that democratic institutions may be harmed in the long-term, especially if a political vacuum is created for groups with an anti-democratic, adventurist or power-grabbing agenda to try to seize power and hold on to it indefinitely.

 

g. People Power. People power is a precious legacy from the struggle against the dictatorship and the restoration of democracy in the Philippines. EDSA I was the culmination of a long process of political education, organization and mobilization throughout the martial law years and especially during the nearly three years after the assassination of former Senator Benigno Aquino. Active nonviolence was a defining characteristic of EDSA People Power. It is enshrined in the Constitution, which values initiatives from below as a way of harnessing the direct participation of the people in politics and governance. In its current usage, however, it is problematic because it is often equated with popular insurrection and takeover as a method of regime change. This creates a dynamic where crisis situations continue to be resolved through extra-constitutional means which are not predictable, weaken democratic institutions and install leaders with questionable mandates. Thus an endless series of EDSA’s spells serious instability.

 

h. Snap elections. Any call for “snap elections” would be extra-constitutional, since there is no such provision in the present charter. What the Constitution provides for is the holding of “special elections,” should vacancies arise in the offices of both the President and the Vice President. Therefore, those who are advocating this option presume that both the President and Vice President will step down or will be made to do so. Moreover, special elections before 2010 without meaningful preparation and electoral reforms will only lead to a contest between those already entrenched in power and thus will not produce genuine change.

 

i. Military intervention. Some have called for an interventionist role of the military to effect regime change. While recognizing that there are reformminded members of the military who have a genuine concern for the good of the country, military intervention in whatever form must be eschewed, especially in the present context of a weak Philippine democracy. Allowing the military to become the arbiter to resolve political conflicts and stalemates undermines civilian supremacy, long-term democratization and political stability.

j. An Independent Counsel. Some have called for an independent institution with the credibility and capacity for investigating and prosecuting government corruption at the highest levels. This proposal has been made because some see the Senate investigations as partisan, while the Ombudsman is overloaded with corruption cases and is perceived as partial to the government in power, given its recent track record. For this option to prosper, however, three difficult issues need to be addressed: (i) creating such a body through a law approved by Congress, (ii) defining the scope of its power and responsibilities, especially in relation to the Ombudsman, and (iii) giving it real autonomy, particularly from the President, who would be the appointing official.

 

k. Impeachment. This mechanism is provided for by the Constitution to exact accountability from the President. It is also a way by which allegations can be verified, thus giving the President a fair hearing and an opportunity to defend herself. However, impeachment will only work if people are willing to participate actively in pushing for and making sure that this process is effective (e.g. sustained lobbying, pressuring their representatives in Congress to prioritize the search for truth and accountability). Thus, it can provide excellent opportunities for active political participation, especially for citizens outside Metro Manila.

And its nine-point action agenda (along with the whole document), merits our attention, too:

Action Points

 

7. It is precisely during times of great upheavals and crises that the call to hope becomes more urgent. Desperation and cynicism cannot be allowed to eat up people’s inner resources. To move forward from this crisis means identifying and pursuing specific forms of action, such as: (a) joining circles of ongoing reflection and discernment, and efforts at political education and organization, including training in anti-corruption advocacy (Ehem) and active nonviolence; (b) supporting institutional efforts to get to the truth and creating a broader climate of truth-telling which encourages and protects whistleblowers; (c) joining activities that promote accountability; (d) articulating long-term ideals and policies for national political reform; and (e) establishing sectoral and multi-sectoral organizations and networks to promote dialogue and concerted action.

 

Concretely, eight action areas fall within the range of options which are consistent with the principles identified above, especially the need to build strong democratic institutions and promote engaged citizenship for socio-political reform:

a. Support for the ongoing Senate investigation of the ZTE-NBN case not only to bring out the whole truth on matters of public interest but also to strengthen the institutional system of checks and balances that seek to prevent the abuse of power.

 

b. Creation of a credible Independent Counsel, in order to ferret out the veracity of various allegations and promote accountability within the judicial system, in which unfortunately many of the official institutions are seen as severely compromised politically. Thus there is a need for an institutional venue and mechanism that will be viewed as autonomous of the government currently in power and free of the antics of traditional politicians.

c. Initiation of a genuine impeachment process, particularly by pressuring Representatives in the House to hold the President accountable for serious violations of public trust if there are sufficient bases for doing so.

 

d. Pursuit of reforms towards government transparency in all its transactions, especially in processes like procurement, decisions on loans, development projects, social reforms, and on issues such as mining, energy and land use that have a profound impact on poor communities and the environment. There is a need to ensure rigorous implementation of laws and policies, the institutionalization of a culture of social accountability, free access to information, and the enhanced participation of civil society in governance decisions at all levels.

e. Promotion of electoral reforms to ensure the conduct of clean, honest, and credible elections in 2010, including the revamp of the Comelec, beginning with the appointment and confirmation of commissioners of unquestioned integrity and competence; the modernization of the electoral system; the eradication of warlordism; the monitoring of campaign finance and expenditure; and the continuing political education of voters.

 

f. Search for worthy candidates and potential leaders, parties/coalitions and platforms for 2010, through positive preparations, planning and strategizing. This would mean clarifying political values and development priorities, candidate selection and recruitment, resource mobilization, and political organizing.

g. Organization of and support for basic sectors, to enable them to have a real say in democratic processes and to address the urgent needs of economic development and social justice.

 

h. Engagement of the youth in current issues, through political education, organization and mobilization for democratic institution-building, lobbying for transparency and accountability, policy reform, and involvement in electoral politics.

8. These specific and concrete calls for action are not isolated and discrete but are precisely interconnected in a framework that seeks to promote truth, accountability and reform. They address gross injustices in the country through active citizen participation that will support and be supported by efforts at political education, organization, mobilization and network-building in order to strengthen and transform democratic political institutions under the Constitution.

 

Responding to the Call for Communal Discernment, Conversion and Action

 

9. We offer these guidelines as a response to the call of our bishops for “circles of discernment” to “pray together, reason together, decide together, act together.” We trust that these reflections help clarify the context, principles and options for people — especially the youth — who seek to respond in action to the current crisis rather than succumb to the temptations of despair. For as Pope Benedict XVI has said, “All serious and upright human conduct is hope in action” (Spe Salvi 35).

 

193 comments

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  1. aurum

    A 120-page dissenting opinion? Wow! Maybe Chief Justice Puno had the numbers right after the oral argument, assigned himself as ponente, and wrote an exhaustive draft majority opinion. But then Brion came along and at least two other justices changed sides so Puno’s majority vanished and Justice de Castro’s much shorter dissenting opinion gathered nine votes. So the Chief Justice had to do some quick editing and change the title of what had been initially a majority opinion into a dissenting opinion. Maybe that explains why Puno’s dissenting opinion is that thick. Just maybe. But then it gives us a sense of judicial drama, right?

  2. mindanaoan

    There is a point when the system is unable to fix itself and starts to harm its environment i.e. the Filipino people.

    exactly, cvj. it’s the system we need to fix.

  3. mindanaoan

    cvj, it’s the how where we disagree. we want to use system tools, you just want to whack it.

  4. UP n student

    can an “internal code of ethics” become codified, or is wishing to find “it” an act for Diogenes the dog man with lamp searching for an honest man?

  5. cvj

    An ‘internal code of ethics’ may or may not be codified, but that is secondary. What matters is its practice.

  6. bw

    THe tought of Noli de Castro taking over in event of Gloria resigning gives me the frigging shivers. It’s bad now but if Noli takes over it will be chaos for sure 🙁

  7. UP n student

    Abe Margallo may like Diogenes… who when captured by pirates and sold away, Diogenes lived in Corinth (away from his motherland) and the rest of his life he devoted entirely to preaching the doctrines of virtuous self-control.

  8. UP n student

    @bw: there will be no chaos; the transitioning will be exciting but matter-of-fact and the country will be none the worse if Noli de Castro were to become President before 2010 if GMA leaves via impeachment.
    The issue is the one who holds the 6-year presidency after GMA.

  9. mindanaoan

    an “internal code of ethics” has to be codified to matter. as the supreme court said, you have to publish the rules. otherwise, anyone can claim there is such and such ‘code of ethics’ and we will all be debating till kingdom come.

  10. UP n student

    @bw: Of course, there is risk that Noli de Castro’s internal code of ethics is closer to Erap’s, not Fidel Ramos.

    or matches BongBong Marcos, not Among Ed.

  11. cvj

    mindanaoan, it’s not the publication but the practice that matters. For example, ‘Moderate the greed’ which is the code of ethics advocated by Neri and enforced by Jun Lozada, was not written but is nevertheless practiced within the government procurement system.

  12. UP n student

    Actually… I have no mental image (other than by association) of what bongbong’s code of ethics is. Now what I sense is that Imelda Marcos does believe that her internal code of ethics is not only judicially defensible but that her code of ethics is why her constituencies keep re-electing her.

  13. mindanaoan

    cvj, ‘Moderate the greed’ is not a code of ethics but a strategy to conceal their work. btw, if lozada was neri’s enforcer, was neri already on the take? then why still offer 200M?

  14. vic

    I still suggest that there will be a complete Accountability Law that will define in details, conflict of Interest during the tenure and for how long after leaving the office.

    Clearly define the relatives, degree by blood and by marriage and common law (minimum cohabitation)and the nature of dealing that will be considered Conflict…

    Also somewhere in the Act the provision that will Protect Whistle blowers and rewards for the results of their whistles…

    That would also cover in details the Accountability of Candidates under the Electoral Law…The Penalty and Enforcement..But also remind the Congress that these and all shall be in conformity with the provisions of the Charter, otherwise they will be thrown out by the courts (assuming time will come that the courts will be impartial)at the first challenge.

  15. d0d0ng

    Amazing!

    Without realizing, the Supreme Court had made a self-inflicted wound in the 9-6 decision. In short, by its decision it institutionalizes BRIBERY (the focal point in the Senate Blue Ribbon investigation) in presidential discussion is covered within executive privilege.

    In opposite direction of US Supreme Court in Nixon’s Watergate Scandal, the Philippine Supreme Court held executive privilege to conceal wrongdoing (bribery).

    Pathetic!

  16. cvj

    Mindanaoan, to us on the outside, ‘Moderate the greed’ does not look like a code of ethics. Perhaps that is because we possess a sense of morality that is alien to the code of behavior practiced within government procurement system.

    Niklas Luhman has warned against moral codes that originate from outside the system.

    In Luhmann’s view, morality also operates in society as a communication steered by a binary code – good/bad, articulated in terms of approval or disapproval. But whereas the other codes Luhmann analyzes (government/opposition, profitable/unprofitable, true/false) are housed, so to speak, in the institutional structures of social systems (the state, the capitalist marketplace, the university and academic publishing industry), and whereas the legal system has taken over the function of determining social norms (along the axis legal/illegal), the moral code has detached itself from its premodern locus in religion and has become a self-replicating parasitic invader of the various modern, functionally differentiated, social systems. Luhmann actually writes of morality as a bacgterial infection, and concedes that ‘like bacteria in bodies, morality can also play a role in function-systems’. But if it is not to destroy the system it inhabits, it must orient itself toward ‘the structural conditions of the respective function-systems’ and not according to some ‘metacode’ that aims at totalization – William Rasch, Immanent Systems in Observing Complexity

    In a system that cannot operate corruption free, Neri understood that ‘Moderate the greed’ was the only way for government projects to push through, for the system to remain workable. He appreciated Luhmann’s advice:

    Ethics, therefore, described from this systemic perspective, is seen as a kind of immune system or on/off switch and we are advised that ‘perhaps the most pressing task of ethics is to warn against morality – William Rasch, Immanent Systems in Observing Complexity

    Neri also anticipated that Abalos’ immoderate greed is a violation of that code which would risk inviting the attention of alien morality (i.e. the anti-corruption advocates) that would threaten the operations of the system.

  17. maginoo

    In summary, we Filipinos just screwed up (big time!) in nation building. The state is hostaged by a few. There’s massive corruption. The institutions are not at synch.

    Its not all the government’s fault. Our collective history and belief system brought us this.

    Whether its damaged culture, unclear social contract between the rulers and the governed, unpreparedness of the bureacracy and the institutions, greed gone berserk, etc.

    Indeed, the OFWs are our lifeline. As Romy Neri has said, our safety valve. But they are both our national pride and shame.

    We won’t be a failed state. But the Philippine ship will be drifting in the sea of global development as well as uncertainty. It is almost a systems failure.

    Continuing from CVJ and Mindanaoan, what do you when the system hangs? Reset. Hard boot. Or reformat the whole thing.

  18. d0d0ng

    “Moderate Greed” is an admission that Philippine political system and infrastructure is running under greed culture -PATONG or COMMISSION. From simple permits to big projects, there is always the mark of greed in PATONG.

    And the Filipino taxpayers ultimately paid the price. Marcos had his Bataan Nuclear plant $1.06 billion loan fully paid in 2007. Estrada had his commission on GSIS/SSS purchase of Belle Corp in plunder case. According to New York Times dated 8/16/2006, China granted $2 billion loans to Philippines each year in return for various projects. Since then from North Rail to ZTE projects the “patongs” had been in the front pages.

    The Supreme Court earned the distinction of recognizing executive privilege to cover “patongs” in presidential discussion or communications.

  19. mindanaoan

    ahhh, so that’s our disconnect! i was talking of laws and government and you were talking about social systems. indeed, society is a complex adaptive system composed of men, but it’s not man-made. it’s not designed. that’s why i asked earlier if your were talking about a natural system like an ecosystem (which is like a social system). natural systems don’t have goals. man-made systems need to have goals from the very start. nobody builds anything without having an idea what it’s for.

  20. cvj

    mindanaoan, i see. sorry i missed that question.

  21. cvj

    In Luhmann’s view, there are no people within Society or within a social system. Instead, people form the environment in which Society operates. The basic building blocks of society according to him is Communication which is defined as the indivisible unity of information, transmission and comprehension.

    Conversely, society is the environment in which people operate.

  22. mindanaoan

    maginoo, reset, hard boot, reformat are for lamers. if you’re a sysadmin worth your salt, when you suspect an exploit, you follow vulnerability management policy. find a fix, apply the patch. no reset in a 85-million-user system.

  23. mindanaoan

    cvj, ok. im going to read luhmann.

  24. cvj

    Neither do we just ‘wait for 2010’. Our system may just consists of viruses by then.

  25. d0d0ng

    Maginoo on, “Its not all the government’s fault.”

    That is how Filipinos are brought up – “not government faults”. Evidently, the wealthly family political clans had been running the government (local to national) like their fiefdoms and milk the country like a cow (if you get the analogy). Government pay, tenure and power are among its incentives. Padrino system can easily get you into one. But the best part is the share of largesse from pork barrel to “patongs” which is the main staple of high government officials and paid by future generations of Filipinos through loans.

    System failure? Hardly the case, “Patongs” and “Patronage” ensured continuous government projects regardless the benefit to the public, say the historic $1.06 billion Bataan nuclear plant. The greed “Patongs” and “Patronage” is not to serve the public but support the clannish families and friends to continue running the government throughout its history. While the majority voting public is always available for sale or entertainment during election time.

    Unfortunately, those who can’t compete with the clannish families just went abroad and get satisfaction of earning a decent way of earning a living.

  26. maginoo

    Jeeez, cvj! Why do you have to beat me on the virus thing?

  27. mindanaoan

    cvj, if you have a scheduled backup-restore tomorrow, why risk corrupting files with a reset today?

  28. d0d0ng

    cvj on, “Our system may just consists of viruses by then”

    Actually, we have been in virulent system eversince. Ages ago, Dr Jose Rizal predicted the Philippines in a cancer state (the only irony, a cancer without dying). We had the chance of a cure in 1986 when Marcos was removed. But the clannish families were quick to grab congress and government positions. A housewife (Cory) survived by a dead husband was no match against countless military coups financed by clannish families ensured we are back to the cancer state.

  29. Pedestrian Observer GB

    There is no doubt that the despicable SC decision is a blow to check and balance & public disclosure which encourages people in high places and those well connected a license to commit fraud conspiracies…. so what can we as bloggers do to effectively voice out our concern and disgust over this wanton disregard of the rule of law?

    I suggest a concerted organized approach such as setting a date where everyone can protest the perversion to show these maniacs we have enough of the charade.

    Check out the evil trio unleashed image at POGB for everyone to grab and post in their blog.

  30. maginoo

    @ d0d0ng:

    My point. Like the Catholic Church is a big part of the problem. With its stand on population control. Of course, you’re aware that with more agressive population control, a large part of poverty in the Philippines could be alleviated.

    Like the long lasting conflicts perpetuated by the NPA/CPP and the rebels in the south. Of course you realize that these are legacy problems/issues for any Philippine government.

    In conclusion, I was trying to point out that there are many unfinished business/problems that we could just not allocate the responsibility on. As I said, our collective history and culture brought us to this situation.

  31. d0d0ng

    The problem with reset button is that:

    1. We do not know the tipping point like 1986.
    2. Very infrequent similar to one in a generation.
    3. If it happened, the reset is short in desired results and viruses are quick to repopulate the hard drive.

  32. mindanaoan

    to remove a virus, use an anti-virus. don’t whack the cpu.

  33. cvj

    mindanaoan, because there’s the possibility that the virus will corrupt the backups as well. in my work, i’ve encountered a situation where i discovered a file that was corrupted. i tried to retrieve the last good backup but found that it has long been corrupted. there were no good copies anymore.

    in any case, i don’t favor a ‘reset’ if by that you mean violence.

  34. mindanaoan

    cvj, a backup-restore immediately detects bad backups. why, you do just backup and backup and no restores to check if it’s good? fire your system designer!

    no violence, good. no violence.

  35. cvj

    It was only a year after that i found out the file was ‘talking to Garci’ so to speak. My bad.

  36. d0d0ng

    Maginoo – in short, there is no getting out of cancer state.

    But let me tell you of Catholic church. We had the real chance in Cardinal Sin. The progressive late Cardinal Sin who was behind 1986 was less known about his position in birth control. In fact, he voted in 1978 for a progressive Pope John Paul I (Albino Luciano), the shortest pope to reign in 33 days who was murdered (unofficially since no country has jurisdiction over Vatican) by the conservatives over Albino’s investigation of Vatican Bank and his radical change of catholic papacy choosing to start from Vatican Council 2 (progressive) than to continue the conservative direction under Vatican Council 1.

    Under John Paul I, the catholic church would have pragmatic solution for the third world languishing in overpopulation.

  37. d0d0ng

    mindanaoan on, “to remove a virus, use an anti-virus. don’t whack the cpu.”

    Anti-virus program is designed to get rid of current nuisance in the system. It is as good as the designer. Arroyo and her clans were once anti-virus to Estrada. Now, she and her families and friends are the viruses.

  38. d0d0ng

    maginoo on, “Like the long lasting conflicts perpetuated by the NPA/CPP and the rebels in the south.”

    The Berlin Wall and communist Germany is gone and yet Communism in Philippines is still around. Why is that?

    Reason: In 1986 with removal of dictator Marcos, the clannish families with military support secured the government and the legislature that created the laws. The clannish families are big landowners and passed the CARP law ensuring its traditional hold of the big family landholdings via corp loopholes. In addition, clannish families through local government have choice in military commander assignment. Feudalism barely changed except for the makeup.

    In the south, separate government is anathema to clannish families controlling national government who will be deprived of revenues and foreign loans.

  39. hawaiianguy

    dodong, cvj, mindanaon,

    A defective or infected CPU can be likened to a social system up to a certain point, using an organic analogy of the sheme of things. If the viral infection is in such a state that known anti-virus software is no longer effective, I find it useful to reformat the hard disk as the best option.

    Unfortunately, one can’t do that to a social system when it becomes dysfunctional. Except for a few such systems in history (Maya, Inca, Egypt’s age of pharaohs, etc.), most don’t reach that stage of complete dysfunction. Rizal’s pinas as a cancerous society might still be benign, not enough for society to snap out. The revolution of 1890s, repeated somewhat in 1986 (it’s not exactly a revolution in the sense of being violent and transformative), suggests corrective solutions to an ailing society that was and is still functioning.

    From a functionalist perspective, the system can still continue (and will likely to do so until a sharp break happens along the line) so long as those parts that make the system are fixed, replaced or modified. Hence, pinas can still survive without the need for a revolutionary change if those dysfunctional institutions can be repaired. One quick way is to replace the leaders behind it. Then, repair the system as soon as the right people are in place.

    An analogy that comes to mind is the Comelec. It’s hard to install an honest-free elections if those notorious guys are still there. Commissioner Melo may not be able to do anything much by himself by acting like a crusader, if the system is not weeded out of those scrupulous people.

    For the political system, the remedy is this: replace Gloria by ouster, impeachment or some other legally approved means on or before 2010. She is at the center of a system that is still cancerous or sick.

  40. maginoo

    @d0d0ng:

    I hear you. But as I said, you cannot assign the blame to any one particular Philippine government, neither from Aguinaldo nor to Arroyo. But to ‘clannish families’ Oligarchs?

    Determinist history at fault? Maybe particular events were crucial. I’m not sure.

  41. d0d0ng

    Maginoo on, “I was trying to point out that there are many unfinished business/problems that we could just not allocate the responsibility on. As I said, our collective history and culture brought us to this situation.”

    There is no unfinished business, it is the design of greed “patongs” and “patronage”. The clannish families will NOT give up landholdings and private ownerships. Likewise, they will NOT give up control (separate government) to lose national revenue and foreign loans. Their selfish family history and elitist culture (entertainment for the people) continue to dominate the majority poor and disenfranchised Filipinos.

  42. maginoo

    So d0d0ng? Are you for a RESET? HARD BOOT? Or REFORMAT? At least we know what ColdKing wants.

  43. d0d0ng

    hawaianguy on, “One quick way is to replace the leaders behind it. Then, repair the system as soon as the right people are in place.”

    That is doable. But the clannish families are way ahead than educated Filipinos. They practiced what they believed. They sit as lawmakers to ensure that the next president will execute their laws and the supreme court will interpret the law according to their versions. In fact, they can always insist that we are governed by rules – their laws on us.

  44. d0d0ng

    Maginoo on, “Are you for a RESET? HARD BOOT? Or REFORMAT? At least we know what ColdKing wants.”

    This question is very appropriate for a person dying of cancer. “Whatever it takes” is always the 1st answer. But once you go with radiation treatment, most will simply accept their fate -“whatever it is.” In battle of attrition, the most resources wins.

  45. hawaiianguy

    dodong,

    I know what you’re saying. Those powerful clans are there to rule, even if you do something. But better do something than do nothing, else we leave society to its own pitfalls – sink to the abyss as the “iron law of oligarchy” takes its toll (Robert Michels). Improving polity and bureacracy is the only way to avert this law from becoming.

    I will start by voting out those corrupted ruling families from politics. Isabela’s lady governor (Padaca) has demonstrated its possibility, as do other neophytes in Philippine politics. Let’s campaign in 2010 to do the same.

  46. d0d0ng

    I like your courage, Hawaiianguy.

    We urge Filipinos to take the government one at a time. Start regaining the government from clannish families. Be like Father Ed Panlilio. We need more governor Panlilios so Philippines can start a different direction away from greed of “patongs” and “patronage”.

    Nobody can bought Ed Panlilio. He received the “tongs” and spent it on the people. If more Filipinos like Panlilios, the Philippines has a real chance against cancer battle.

  47. hawaiianguy

    We certainly need more Padacas, Panlilios and other honest newcomers to cleanse a corrupted, cancerous political system. Meanwhile, there’s a more pressing need to start from the top. That’s the nerve center responsible for the other system parts to go awry.

  48. Bencard

    mindanaon, cvj, let me weigh in on your running debate about morality and code of ethics, “social systems” and “viruses”.
    i think any discussions on morality and ethics must never lose sight of the fact that these two norms spring, not from man, but from a higher(est) authority outside of him. they are not “man-made” but, in the exercise of free will, man may choose to, or not to, abide by them (of course with consequences, good or bad).

    having said that, i agree with you, mindanaoan, that social systems are not supposed to be man made nor designed. the idea is so diametrically opposed to freedom and the exercise of free will. social engineering is only possible in a totalitarian state ruled by force rather than reason. a society of free men adopts just and reasonable rules or codes of conduct based on standards handed down by the ultimate Lawqgiver.

    cvj, i don’t agree with your theorem (apparently from miklas luhmann, a social scientist rather than religious or legal scholar) that “there are no people within Society or social system”; or that “morality that originates from outside the social system” is dangerous. in the same way that the mafia’s “code of honor” is not derived from true morality or ethics, “moderation of greed” is not a moral or ethical standard – greed is greed, moderated or not.

  49. anthony scalia

    judges are not allowed to make up their own interpretation of the law…

    according to a former US SC member – we (the SC) are under a Constitution, but the Constitution is what we say it is

  50. anthony scalia

    to maginoo, dodong, and all others using the ‘PC metaphor’:

    you’re missing one important player – the PC user!

    whatever happens to the PC is because of the user. to borrow words from a famous phrase – a PC user gets the PC he deserves (context is the user is assigned a brand new PC all to and for himself)

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