Supremes’ Folly

Let’s begin with a quote from the Vice-President, not usually considered an authority on anything, but who knows his public pulse. In the news article Inquiries barred by SC ruling?, which focuses on the Palace’s emerging effort to limit public criticism by bringing up the possibility of the Supreme Court citing people by contempt (a dangerous road, considering even lawyers are incensed: can you imagine hundreds or even thousands all being jailed for contempt of court?), the Veep was quoted as saying:

 

Vice President Noli de Castro urged those who disagree with the Supreme Court to respect and accept the ruling.

“Kapag hindi pa natin ginalang ang decision ng Supreme Court, sino ang igagalang ninyo after the Supreme Court?” he said in an ambush interview at the Philippine National Police Academy graduation rites in Silang, Cavite.

And really, this is the crux of the problem. Because, indeed, if the Supremes have disgraced themselves then the unthinkable has to be confronted, and that is, going back to the drawing board. But that point hasn’t been reached, at least, not just yet: at the very least it would have to wait until the Supremes have received a motion for reconsideration and then denied it with finality; or possibly, even further down the line when the 9-6 majority continues to hold even in cases, say, like another People’s Initiative scheme. Then the country would no longer be able to ignore the reality of a Puppet Court.

Unless of course, without waiting for a Puppet Court to hand down one decision after another, the justices in the minority, led by their chief, decide to simply resign if the court upholds Neri v. Senate. That would be unprecedented; but would it be wise? It would only give the President a free hand to appoint not just six, but seven Justices in one fell swoop. But then again it would have been an act of self-preservation for the resigned Justices.

Would we then be faced with a situation more similar to the Japanese Occupation than even, say, Martial Law? Though at the heart of the New Society were ideas first explored during the Japanese Occupation.

Even when the Supreme Court disgraced itself (while saving the jobs of its members) by adorning the New Society with “a color of constitutionality,” the critics of Marcos still went to the Supremes to argue their cases, even though they weren’t particularly confident of a fair hearing. It was just that court remained one of the few venues where people could exercise a semblance of free speech. There was still a residual respect for the high court, but I have to wonder if it was an institutional respect or respect for its membership; just as during the Japanese Occupation the Supreme Court tried to do as little work as possible, knowing it was viewed as just another illegitimate institution of a government viewed as illegitimate by the people.

But then the public didn’t scoff at Jose Yulo, who assumed the position of Chief Justice after the legitimate Chief Justice, Jose Abad Santos, was executed by the Japanese, the way the public scoffed Chief Justice Enrique Fernando during the Marcos years. But in the end when the entire Marcosian apparatus came crashing down the Supreme Court he’d appointed went with him. The Japanese Occupation and Martial Law still remain national traumas within living memory: and with continuing ill-effects as Alfonso Aluit once pointed out.

But then, what do you do, Puppet Court or no? For example, De Venecia son seeks SC help over wiretapping. And while Manuel Buencamino, in his column Play them loud, can properly distinguish between the Garci tapes and those Sen. Juan Ponce Enrile has in his pocket -and which has led JDV3 to run to the Supremes with a Habeas Data petition- the long and short of it is that the reason people have to run to the Supremes is they’re the court of last resort -but what happens when resorting to that court can only hasten not justice, but the closing of a government trap?

Which brings us back to the Vice-President. Who -or what- would be left to respect, once respect for the high court is gone? Which explains why disappointment in certain quarters -and I am specifically referring not to critics of the President, but those who believed that the President’s sins of omission or commission, as alleged by her critics, could be amply attended to by institutional means, whether Congress or the courts- is running so deep, and why the response, as invoked by Fr. Bernas (see link below) is basically this: storm the high court at Padre Faura with prayers, of the legal and spiritual kind.

And why great pains are being taken to dissect the high court’s ruling, to point out the Supremes’ folly, and to remind them that once respect for them is lost -what, indeed, will be left?

Let’s move on to a portion of the decision, before tackling what some lawyers told me yesterday. Here is the portion from the main decision as written by the ponente, Justice Teresita Leonardo de Castro:

 

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit:

 

1) The protected communication must relate to a “quintessential and non-delegable presidential power.”

2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

 

3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

 

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

 

The third element deserves a lengthy discussion.

United States. v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

 

The foregoing is consistent with the earlier case of Nixon vs. Sirica, where it was held that presidential communications privilege are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government “in the manner that preserves the essential functions of each Branch.” Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted.

 

Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon[48] that “demonstrated, specific need for evidence in pending criminal trial” outweighs the President’s “generalized interest in confidentiality.” However, the present case’s distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to “limit the scope of its decision.” It stressed that it is “not concerned here with the balance between the President’s generalized interest in confidentiality x x x and congressional demands for information.” Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

At yesterday’s Mass for Cory Aquino at the Ateneo Rockwell, I asked lawyer Carlos Medina (who was part of the Senate’s legal team and was part of One Voice’s legal team) his views and to the best of my understanding, he believed the portion above was the most objectionable part of the entire decision.

In the past, executive privilege applied to the President and individuals consulted by the President. When invoking executive privilege, the burden of proof was on the one invoking the privilege, and not on those making inquiries resulting in the invoking of privilege; the decision reverses things and now puts the burden of proof on those making inquiries, therefore turning what was once something that could only be rarely invoked and with difficulty, at that, into a shroud of secrecy almost impossible to pierce.

Before the decision, it would have been, “I invoke executive privilege, because what you want me to tell you, deserves to be superdupertopsecret because of reason A, B, C…” with reasons A, B, and C subject to strict limits on their appropriateness.

After the decision, it becomes “Tell me why I should answer you when everything is presumed to be covered by executive privilege so tell me your reasons A, B, and C and I’ll see if I think your reasons justify my giving you an answer.”

It turns the assumptions that executive privilege is exactly that, a privilege, and one that’s strictly circumscribed, on its head.

Besides that, the privilege once applied to two people: the President and whoever talked directly to the President, about confidential matters; the decision expands coverage to include those with “proximity” to the President -including when those enjoying that proximity consult each other, in turn, on matters involving the President.

Before the decision, it would have been, “I invoke executive privilege, because what the President and I talked about on the phone is superdupertopsecret.” After the decision, it becomes, “I invoke executive privilege because what Sec. A and myself, Sec. B, talked about had something to do with the President, although neither of us were talking to the President at the time, nonetheless, since it was about her, it’s superdupertopsecret.”

smoke, in her blog, noticed this, too:

 

All this conclusion does is bolster the fact that Neri can claim privilege. But that was never at issue. The issue is whether the claim is justified. Again, the justifiability of the claim seems to have been taken for granted.

The third conclusion is the linchpin, and it is based on the fact that

“The case of Senate v. Ermita only requires that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified. The enumeration is not even intended to be comprehensive.”

 

In other words, the claim actually need not be justified. In cases where the Senate thinks the claim is unjustified, it can take the case to the SC. But that remedy is, in fact, illusory since, when it receives the case, all the SC will look for is whether the allegation was properly made – it won’t even look into the reasonableness of the claim. For instance, Midas Marquez – the Court’s spokesman – is now emphasizing that the reason the Court ruled for Neri is actually because the Senate was unable to show any compelling need for the information. This line of reasoning implies that if a need was shown, the privilege would have been denied. BUT that implication is contradictory to what the Court itself said when it declared that a mere allegation of privilege, properly made, is all that is needed. How can any enumeration of “compelling need” be validated without measuring those claims against the justifications for keeping the privilege intact? How can you say that the justifications for disclosure are more ‘compelling’ than the justifications for secrecy when the secrecy need not even be justified?

 

That all looks kinda circular to me.

A perfect trap!

The decision also closes off executive agreements from public scrutiny, because they become essentially immune to legislative inquiry.

And the decision essentially defines the ability of Congress to inquire so narrowly as to make oversight over the executive impossible; and that includes finding probable cause for prosecuting executive officials (or even the President) in the courts. For the Supreme Court says that while indeed, a limit on executive privilege is that it can’t be invoked to cover up a crime, it says the the only place that invocation won’t work is before the courts -which ignores how things can even get to court, if nothing fishy can be uncovered in the first place.

The whole thing makes a news story like this, otherwise heartening, disheartening: House body OKs bill facilitating access to state information.

Yesterday and today’s Inquirer editorials focus on the Supreme Court and its decision in Neri v. Senate Committee. Yesterday’s editorial, Divided court, began by pointing out,

 

We join the many who find the majority decision to be gravely disappointing. In striking a balance between the competing interests of two coordinate branches of government, the high court in Neri v Senate Committee et al seems to have decided to enable an Executive department with an inglorious record of evading accountability. That record includes the remains of Executive Order 464, the “ashes” of which, Justice Conchita Carpio Morales wryly noted in her dissenting opinion, “have since fertilized the legal landscape on presidential secrecy.”

The editorial went on to focus, first, on the dissenting opinions and what they argued were not at stake:

 

In his exhaustive and magisterial dissent, Chief Justice Reynato Puno devoted several pages to prove that the three questions are pertinent to the legislative inquiry the three Senate committees are conducting and to actual bills pending in the Senate. “The three assailed questions seek information on how and why the NBN-ZTE contract–an international agreement embodying a foreign loan for the undertaking of the NBN Project–was consummated,” he reasoned. Declaring the three questions as covered by executive privilege, therefore, is to effectively undermine the work of legislation.

 

Justice Antonio Carpio, in his separate opinion, also makes short work of the three questions: These, “if answered by petitioner, will not disclose confidential Presidential communications. Neither will answering the questions disclose diplomatic secrets. Counsel for petitioner admitted this during the oral arguments …”

 

We find it of no small import that, in a landmark case (a case of first impression, as Puno noted) where alleged diplomatic reasons are used to justify the exercise of the so-called presidential communications privilege, Neri signally failed to support his argument that the fate of our diplomatic relations with China was in fact at stake.

The editorial was referring to Bautista the Hutt’s inability to explain any diplomatic wrinkles that might arise from pursing the line of questioning intended by the Senate. The editorial then proceeded to focus on the main decision and its flaws (referring to the passage from the decision I reproduced above, in the context of another lawyer’s views on the decision):

 

Strip the ponencia written by Justice Teresita Leonardo de Castro down to its basics, and we find that it can be used to justify wrongdoing.

 

The three Senate committees, the majority decision notes, “argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this.” But the decision then draws what seems to us to be an unnecessary but most consequential contrast between the Neri petition and the landmark US v Nixon case. “Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry.”

 

What do our honorable justices mean? That when information about an alleged crime is elicited in a legislative inquiry, the claim of executive privilege can be used to make the information irrelevant? This strikes us as absurd. What are our lawmakers to do, if evidence of criminal activity surfaces during an inquiry in aid of legislation? Look the other way? Unfairly as it may seem, the ruling in Neri v Senate Committee et al will be summed up by many of our most law-abiding citizens as suggesting exactly that.

 

The majority decision makes much of the assertion that the “petitioner is not an unwilling witness.” That seems to us to privilege Neri’s one day of testimony, as against the numerous other instances when he failed to honor the Senate’s invitation. Again, context tells us that this did not occur by happenstance; the Arroyo administration, by the admission of its own officials, has helped potential witnesses to avoid the Senate hearings on the NBN deal.

And yet today’s editorial, Not absolute, says hope springs eternal and while slim, there’s always a chance the Supreme Court, upon a motion for reconsideration, may indeed reconsider (as Fr. Joaquin Bernas, S.J. pointed out). On what basis? The editorial says,

 

Allow us to hazard a guess. In his lengthy dissenting opinion, Chief Justice Reynato Puno summed up the doctrine of executive privilege as the “tension between disclosure and secrecy in a democracy.” If we accept this phrasing of the problem, then our prayer is that enough justices in the majority may be moved, on reconsideration, to favor disclosure over secrecy.

 

That, it seems to us, is what this landmark case on the limits of executive privilege amounts to: A decision, by the justices of the high court, about which is more important, which is more in keeping with the public interest, at this particular juncture in our history.

 

There is no question that the Executive enjoys what is called the presidential communications privilege. In her dissent, Justice Conchita Carpio Morales disposed of the matter succinctly. “Underlying the presidential communications privilege is the public interest in enhancing the quality of presidential decision-making. As the Court held in the same case of Senate vs Ermita, ‘A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.'” (It bears noting that Carpio Morales wrote the 14-0 ruling in Senate vs Ermita.)

 

This privilege, however, is not absolute.

 

There is also no question that the Executive enjoys what is called the diplomatic, military or state secrets privilege. In his dissent, Puno noted that these content-based categories of executive privilege are subject to judicial determination, “without forcing a disclosure [he quotes from the jurisprudence] of the very thing the privilege is designed to protect.” But again, this privilege is not absolute.

 

(It bears noting that Romulo Neri’s inclusion of “impairment of economic relations” was dismissed by Justice Antonio Carpio, in his separate opinion, as “not even a recognized ground” for the claim of executive privilege, and that Neri’s inclusion of “military matters” was derided by Carpio Morales as a mere afterthought, and therefore “need not be seriously entertained.”)

The editorial then tackles the proposal made by the Chief Justice at the time of the oral arguments on the case, and says that while it tried to head off a constitutional crisis, the decision, unless reconsidered, makes one inevitable:

 

The proposed compromise made a virtue of necessity.

Unfortunately, the majority position that ended up deciding the case may have only rendered the very constitutional crisis the justices sought to avert inevitable. Why? In favoring the Executive’s claim of secrecy, the Supreme Court pushed the Senate into an untenable position. Essentially, the ruling in Neri vs Senate Committee asks the Senate not to probe evidence of criminal activity that surfaces in a legislative inquiry if the Executive may be implicated. How can the Senate possibly acquiesce?

 

In the end, the majority decision in Neri vs Senate Committee strikes us as being based on a fundamental mistake: It takes the Executive at its word… Today, when the choice is between disclosure and secrecy, can we still afford to give this Executive the benefit of the doubt?

See the Malaya editorial, Promoting concealment of wrongdoing, too.

Lawyer Jose C. Sison, in his Philippine Star column “External and internal justice” (useless linking to it, because the paper’s site doesn’t have permanent links), helpfully put in bold the important parts of his column and that’s what I’m reproducing below:

 

In other words Neri won because the justices perceived that his position is the lesser of two evils…

 

…But at least some facts have already been established by the SC in this case that brought us nearer the truth.

 

Thus the SC found that on April 21, 2007, the Department of Transportation and Communications (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of US $329,481,290 (approximately P16 billion) to be financed by the People’s Republic of China; that on September 26, 2007, Neri testified for 11 hours and disclosed: that then COMELEC Chairman Benjamin Abalos offered him P200 million in exchange for his approval of the NBN project; that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe; that originally the project was under a Build Operate Transfer (BOT) or any similar scheme, but when the contract was signed it was already by means of a loan from China although he was not privy to the changes anymore; that he had further discussions with the President regarding the bribery scandal involving high Government officials but could not divulge them anymore on the ground that they are covered by executive privilege.

 

If these facts are woven into the publicly known and openly admitted events… then the conclusion is quite clear and indubitable that some “katiwalian” amounting to a crime or violation of the Anti-Graft Law has been committed by the named officials and other brokers still to be positively identified.

 

And this is the vulnerable aspect of the decision… It still recognizes executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrongdoing by public officials and other influential persons…

 

…”Law” here refers to “man-made rules and methods by which society compels or restrains actions of its members; the general rule of external human action enforced by a sovereign political authority”. Conformity of our actions to this law serves the ends of what we call external justice only.

 

…a broader all embracing law that treats of what is right and wrong or distinguishes between good and evil. If our will and actions conform to this law we have what is known as internal justice.

 

…internal justice is the object of morality while external justice is the object of jurisprudence or the science of giving a wise interpretation to man made laws and making a just application of them in all cases as they arise. Obviously internal justice is more important in the search for truth because our duty here is dictated by conscience unlike external justice where the duty is dictated by imperfect human laws. A combination of both internal and external justice is of course the best…

Another lawyer, Florin T. Hilbay, 1999 Bar Topnotcher and a professor of law, in When law is politics says:

 

…the Supreme Court’s decision in Neri v Senate… I believe is deeply flawed for a host of reasons: by default, President Macapagal-Arroyo (or her alter ego) has minimal proprietary rights over information generated in the exercise of her public functions; the questions the Senate asked can barely be said to have an impact on the President as a private person and on national security or foreign affairs; and the need of the public to elicit concrete information on allegations of office-related crimes involving high public officials surely trumps any speculative defense.

 

The 1987 Constitution may be insanely verbose, but its effusiveness is narrowly focused on the need to have a vibrant speech environment and on preventing misuse of public office. By now we ought to realize that behind claims to privileged information, done in the name of the public, is usually a crook who wouldn’t show his (or her) dirty hands. Citizens have the right to raise their eyebrows at every invocation of “national interest” or “official privilege” because rights claimed in the name of the public have almost always been exercised at its expense.

 

The Neri v Senate decision is all the more unfortunate considering that it effectively suppresses information crucial to opinion-formation essential to citizen feedback, at a time when it is most needed. What the Court has done is to discount from the public sphere knowledge that may be used by citizens in deciding whether they should use the force of public opinion to force Romulo Neri and/or GMA to resign, or to impeach her, or to prosecute Benjamin Abalos and Jose Miguel Arroyo; or in concluding that Jun Lozada is a fraud and his statements are hogwash. The wisdom of the masses doesn’t come cheap; it is a social capital available only when the marketplace of ideas is free. Today the Court engages in reverse expropriation, taking what is otherwise public property and preventing citizens from treading a path that might lead to enlightened public opinion.

Among bloggers, [email protected] says lawyers should weigh in but laymen should, too; a lawyer, Red’s Herring, does weigh in, pointing out the Supremes have already neutered impeachment:

 

In an earlier entry, I have submitted that the Supreme Court in Francisco, Jr. v. House of Representatives has practically crippled the impeachment process by adopting the Bernasian reading of “initiate” under Article XI, Section 3 of the Constitution in lieu of the interpretation of the House of Representatives, and taking up what it supposed as its “activist” role, declared such interpretation of a coordinate branch, contained in the House Impeachment Rules, unconstitutional. Under the impeachment gun then was Hilario Davide, Jr. and so the robed gang huddled together and quite expectedly hailed their Chief – at the expense of the Constitution. Francisco, I concluded, is therefore the father of Lozano and Pulido.

 

Now, Senate v. Ermita can also say, “Here, have a cigar, we have sired a son … in Neri v. Senate Committee.”

 

Because the father had misspoken, the son lost its way, and unabashedly acknowledged being befuddled.

 

…Very clearly, executive privilege can only be invoked by way of exception. So when the executive officials fail to show that the privilege is “of such high degree as to outweigh the public interest,” as Senate v. Ermita ruling describes it, in the disclosure of the supposedly privileged information, congressional oversight, as a general rule, will trump an appeal to the supposed privilege. In that event, contumacious defiance and refusal to disclose the information sought or needed by Congress for legislative purposes renders the withholding official liable to its contempt process and the attendant punitive measures. Indeed, Congress, acting through its committees, need not rely upon the all-too-measured judicial pace to exercise the ultimate power of oversight and thereupon employ the necessary enforcement tools.

Non-lawyers Strawberry Fields Forever and Scarlet Sky and Ricelander’s Blog are aghast. The Marocharim Experiment calls for resistance. Dean Jorge Bocobo over at Philippine Commentary is very excited over the fact that Justice Corona (of the spouse who signed that manifesto in support of the President fame) is still taking his doctorate in law while already serving on the bench.

Speaking of Cory Aquino, a beautiful passage in Scriptorium:

 

With her persevering courage, born of prayer and piety, she helped lead us of the Marcos kleptocracy amid coups and crises and the infighting within her coalition; and considering that Aquino for a time (1986-1987) had revolutionary powers exceeding even those of Marcos himself and yet did not abuse them, her example of self-control and liceity makes her a steadfast pillar of Philippine reformism.

 

Admittedly, the Aquino administration had its share of serious problems, but her achievements are too strongly buttressed by the facts of history to collapse from administrative or other imperfections. Even if she erred in Edsa Dos–as I think she did not (for there is nothing illicit in removing a corrupt leader who abused the Constitution, and the evil of the next one can be blamed on herself alone)–it was through sincere desire for reform and no other. This is indeed well-known to the Autocracy, hence its illegal effort to block Aquino from joining the protest of the ill-fated marines in Fort Bonifacio; for nothing else would have stopped her.

 

Therefore the news of her illness comes as a terrible shock. Corazon Aquino is a woman of faith and valor, a Philippine ashet chayil in the line of Deborah, Matilda and Dorothy Day who even now leads the cause of reform; she has earned not only our gratitude but our enduring love; and so the nation owes her all the prayer and support we can muster.

My column yesterday was Testimonial of a matriarch.

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Manuel L. Quezon III.

266 thoughts on “Supremes’ Folly

  1. “As for high society, which took much of my time in the past, I must say that its days are over. Finished. Society, as we knew it in the 1950s till the 1980s is dead. It has been killed by new contending forces and has sunk without a trace. The rise of new classes, a drastic change in public ideology and the social contract, the expanding economy have done it in. It’s almost as if there had been a revolution. The detritus is the new cafe and club society we see parlayed and hyped up in the lifestyle sections of the press today.” – Madrigal

    Just like most things dished out by the Philippine media, stuff featured on the “Lifestyle” pages of newspapers are usually outcomes of deals made between the publisher and the publicist of any of a number of businessmen who are marketing their “lifestyle” products or services.

    Nothing wrong with that of course. It’s all business.

    Tough luck to those who are on the wrong side of the economic equation, is what I say. 😀

  2. Didn’t the justices vote on a specific issue and not on the principle? – BrianB

    Maybe you should broaden that question and direct it to people who focus on trivial posturings of PEOPLE and fleeting EVENTS rather than identifying the underlying simplicity of a handful of unifying PRINCIPLES. 😉

  3. Manolo, what I mean is if the senate goes to the supreme court again challenging an executive privilege cclaim, would they necessarily have to respect this ruling, which seems a little specific to the case.

  4. b:

    i understand they will file a motion for reconsideration. if that is denied, then i suppose what remains is to pursue their investigations and then see if the president’s people will invoke executive privilege even to absurd lengths; or at least to an extent that makes the choice for the senate a stark one: to pursue investigations in defiance of the both the executive and the supreme court. for example, summoning slithery nery and then citing him in contempt and detaining him, forcing the supremes to do something -such as asking the executive to send troops into the premises of the senate to “liberate” the captive slithery nery. there are times when a constitutional crisis is not only justified, but necessary.

  5. AT which point–just to simplify–can the supreme court say that executive privilege is UNjustified. After this ruling I mean. I take it from your writing it means, at no point at all.

  6. Question for lawyers: Does this ruling cut the balls off any impeachment trial for the president too? Witnesses can invoke executive privilege on anything? Im aware that in a proper criminal trial against the president, you can’t do this since a criminal trial is, well, criminal. But an impeachment trial is different.

  7. b: in the context of a legislative inquiry, always justified because almost impossible to justify a challenge to the privilege.

  8. Is this the beginning of a perpetual-motion machine?

    Bernas says (if the blogspot poster can be believed)…. Bernas says “loser” asks for re-consideration. So… what is to prevent Bernas (or a Bernas-clone but for “other side”) to say to the loser of the re-consideration to ask for reconsideration? And what is to prevent the loser of the reconsideration of the reconsideration to ask for a reconsideration?

    Is there any such entry in the Constitution? Double-jeopardy, maybe?

  9. I wonder at what point will enough people realize naglolokohan lang tayo and when that point is reached , will people really care?

  10. Will the reconsideration of the reconsideration of the reconsideration be defensible, or will be sneered at in Plaza Miranda?

  11. upn, i believe the rules are: the loser in a case can appeal a ruling. in the case of the sc, you can only make the appeal once, and after that the ruling is final.

  12. hindi sana nagkakaganyan kung ang mga senador na iba ay hindi mga arogante at stick lang sa isyu. ang kaso eh, pati pag-utot mo noong 2006 kakalkalin. isasabuy kung ano ang kasarian mo.

    ….hay naku.

    yan ang napala.

    kaya hinay-hinay lang!

  13. Article 8 of the Civil Code that “Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.”

    In other words, such judicial decisions assume authority as the laws enacted by the Congress. The product of their interpretation is a law. Hence Neri vs. Senate is now a law unless reversed by the Supreme Court through MR. In effect the Supreme Court is legislating while interpreting the laws.

    Note that the power of “judicial legislation” is derived from the Civil Code, a law enacted by Congress. The basis of the power is therefore statutory, not constitutional. It is as if delegated by Congress to the Supreme Court. Since Congress can make and unmake laws, will the repeal of the above Article 8 by Congress unclothe the Supreme Court of its power to “legislate”? Just asking.

  14. “I wonder at what point will enough people realize naglolokohan lang tayo and when that point is reached , will people really care?” — cvj

    Right on target. The only real question is that when will “enough” people realize that naglolokahan lang naman tayo dito. The track record of this government speaks for itself. Such is our naivety that we hope against hope that the system will correct itself. Damn, moi included. I half expected that the esteemed judges would decide on what is so obvious under our Constitution, that no privilege, nay not even so called executive privilege is above the right of the people to know the truth, especially if it concerns an alleged public crime. The Supreme Court decision has just dealt a deadly blow to democracy in our country. It’s a Marcos redux, a Constitutional authoritarianism.

    Right now, it so is very obvious that the “rule of law” has mightily diverged from what is morally and intellectually right.

    I think the situation is sliding into extremism, slowly but surely. And the polarity is not the kind that we saw circa 1986 and 2001. No Catholic Church or democratic insitution is there to provide the fulcrum or balance. All institutions have lost their moral leverage. Except for the Senate. Even so, the Upper House is rightly suffering from the correct perception that most personalities there are out to extract media mileage in furtherance of their presidential ambitions.

    How will this end? A bang or a whimper? The whimper scenario is a continuing one with embassies churning out visas for middle-class Filipinos eager to leave this seemingly God-forsaken third world hell-hole.

  15. How will this end? A bang or a whimper? The whimper scenario is a continuing one with embassies churning out visas for middle-class Filipinos eager to leave this seemingly God-forsaken third world hell-hole. – Madonna

    Back in the days when pretty much every place in the world was a war- or poverty- ravaged hellhole, it made sense to stick it out in one’s own country and “fight” (whatever that battle may be) to the death (i.e. that over-used cliche of “asking not what one’s country can do for one…”).

    Now, however, there is a vast world of options for young, mobile, and employable Pinoys. There are societies out there who treat the least of its citizens (not to mention naturalised aliens) with far more dignity, respect, and fairness than Pinoy society can ever hope to achieve over the next 50 years (at least).

    So why waste one’s precious time on a a society whose track record of delivering mediocre results has been more than obvious for DECADES.

    Life’s too short to be pissed off. You may as well channel the energies generated by being pissed off towards endeavours that yield tangible outcomes for one’s personal well-being (which therefore counts out participating in moronic no-results street ‘revolutions’). 😀

  16. Love (for one’s country including) is greater than justice it has been said, or something that effect. That is a basic Christian precept.

  17. Madonna, what “country” are you talking about? Do Filipinos really know what a “Filipino” is?

    Unless we are with some measure of conviction able to define what a “Filipino” is beyond being born in a bunch of islands collectively named after some obscure Spanish king, I don’t think we will be able to take the next step and actually proclaim this “love” that we encourage one another to harbour.

    And while we are on the topic what is “love” of country anyway?

    See what I’m driving at?

    It’s easy as pie to be dishing out and throwing around the flowery jargon. but once you look underneath the covers and find a void where substance should have been, then you stop wondering why “it never ends”.

    – 😀

  18. Interesting too that you’d consider “love” of “country” as a “basic Christian precept”.

    Where exactly did Jesus Christ mention that?

  19. Whoat? Flowery jargon? Saan ang jargon? I hate jargon mate. But you’ve got to use the exact word for a concept.

    Love of country, is one of those things like belief in God. So there. It’s not subject to debate (for me), only expression. It’s either you have it or you don’t. And no need to be defensive. For some, the notion of God or having a nationality is irrelevant and that is allright.

    Claro?

  20. cvj,

    I wonder at what point will enough people realize naglolokohan lang tayo and when that point is reached , will people really care?”

    the people have realized that the whole Senate investigation on the NBN deal is a circus, to say the least.

    dyan talaga ang ‘naglolokohan lang tayo’. meron ba namang magagawang batas dyan? wala ngang nagawang batas sa Jose Pidal hearings noon.

    kung gagawa naman ng batas, as if naman kailangan pa yung further testimony ni Neri! asus!

    lalong lumalabas ang katotohanang hindi batas ang layunin ng Senate circus on the NBN ZTE deal

  21. Love, in a general way, not love of country, Benigno is a basic Christian precept. Opps, you have to read the through the New Testament. I hate to offer soundbites or mere Biblical. Hate to sound like Brother Ely or Pastor C. Quiboloy hehe.

  22. I hate to offer soundbites or mere Biblical –> “I hate to offer soundbites or Biblical lines.”

  23. Benigno,

    Let me clarify or explain further when I mentioned love being greater than justice in the context of Filipinos leaving the country, in order to be in an environment where justice is more or less a given — where fairness and equality are accorded to anyone, no matter their origin or background.

    This is a fact, for generations of Filipinos, we seek justice outside the country, not in the country where we are born. Now if we can, collectively be a greater people, meaning we let love of country encompass us, then justice will be ours if we seek it right here where we are.

    That is what I meant that love is greater than justice.

  24. The Principle of Executive Privilege is an element of the Separation of Powers. Of course it is JUSTIFIED, for we could not have Separation of powers without all its elements.

    The statement of the Principle as a general matter, is Senate v. Ermita, where the categories of information it covers is laid out, how it is properly asserted, etc. That was a unanimous decision. Just as the Bill of Rights are limitations on government powers, so too Executive Privilege is a limit on Congress’ Power or Inquiry, representing exceptions to the general rule of full disclosure to the Congress.

    Now it is clear from Senate v. Ermita that among those exceptions is NOT included the power to prevent the disclosure of criminal wrongdoing by the Executive.

    Neri v. Senate is a first application of the general principle to a specific case, indeed to a specific set of three questions.

    What nine Justices in the Court say is that these three questions are real-world examples from the categories of information covered by the Privilege.

    Six of them disagree.

    And they have only decided this for those three specific questions.

    The Senate however, has a duty to make and remake the laws they enumerated in the resolutions and privileged speeches that initiated the inquiry in aid of.

    It is entirely in their discretion whether or not they have enough information to do so. Whatever the Court has said of these three questions cannot, must not deter them from doing their duty.

    They have a right to ALL the information they need to wisely do their duty even if some of that information has now been denied them, nothing in the ruling forbids them to keep on asking questions in earnest, finish their investigation and let the chips fall where they may.

    The Supreme Court and the President are only as strong as they are weak or irresolute in doing their duty.

    The Court did NOT strike down their powers, resolutions, rights and privileges.

    If they honestly disagree with the Court, they have many principled ways of fulfilling their oaths.

    The pleas of those around here telling them to acquiesce because the Supreme Court has ruled, are unavailing to the hearts and minds of the Just, for the larger issue is the availability of the Senate as a pillar of Public Accountability.

    All citizens should be concerned about the demolition of the Senate, the suppression of its rights and powers in this small and specific case. For we should care about the BALANCE among the institutions.

    My take is that the Senate was destroyed first by Davide in 2001. What is happening now is the Senate uprising to regain its rightful place.

    That cannot be stopped, any more than Newton’s Laws can be prevented from producing an equal and opposite reaction for every action.

    Just you wait all you naysayers and taunters!

    Justice is Physics.

  25. Love (for one’s country including) is greater than justice it has been said, or something that effect. That is a basic Christian precept.

    maybe 1 very good example for this is Al Gore. he lost by the skin of his teeth, in Florida where the governor was the President George Bush’s brother, Jed Bush. When Al Gore was asked why he didn’t bring his case all the way to the Supreme Court and make a big fuss, his response was very simple: ‘Why didn’t I do it? It’s because there’s something greater than me, and that’s my country.’

  26. grd,

    It’s because there’s something greater than me, and that’s my country.’ – Al Gore

    thats the same reason why I, and maybe you, and some other bloggers here, are not wasting our time on moronic people power attempts, patalsikin na now na etc., as we all know that the country has more pressing needs than gloria’s removal

  27. The Senate must be abolished!

    Lets push for a Unicameral Legislature, whose members are elected by district

  28. ‘Why didn’t I do it? It’s because there’s something greater than me, and that’s my country.’ – Al Gore

    A true patriot, indeed.

    Is Romy Neri a patriot, or just a coward?

  29. cj puno believed that the Senate’s function of crafting specific legislation based on facts and not speculation will be seriously impaired if neri does not answer the 3 questions. now, look at how he interprets the 3 questions:

    1.“Whether the President followed up the (NBN) project” – refers to the importance of the project to the President herself.
    2. “Were you dictated to prioritize the ZTE?” – seeks information on the factors considered by the President herself in opting for NBN-ZTE, which involved a foreign loan
    3. “Whether the President said to go ahead and approve the project after being told about the alleged bribe?” – same reasons discussed on both the first and second questions.

    let’s see if it’s possible to get facts from there:

    1. only the president herself can say how important the project is to her. even neri’s opinion on that matter can only be speculation.
    2. again, only the president can answer that. neri may or may not know a factor or two, but how can anybody be sure he knows all the factors or not?
    3. same observations discussed on both the first and second questions.

    if “based on facts” is a sine qua non, then the senate’s function of crafting specific legislation is already impaired, neri or not.

  30. “The Senate must be abolished!”

    What? The Senate is the only remaining bulwark of democracy after the disgraceful fall of the Supreme Court. I am beginning to think you are a paid Cha-Cha advocate.

  31. Joselito Basilio,

    The Senate, the remaining bulwark of democracy?????

    ****throws up****

    The SC, fell from grace after Neri vs. Senate?????

    ****throws up****

    “I am beginning to think you are a paid Cha-Cha advocate.”

    are you a law student? di bagay sa abogado yang ganyang attitude! not a lawyerly trait!

    oh yes im a cha cha advocate, but not paid. i advocate a unicameral parliamentary form of government (like UK or Japan or Thailand), and the relaxation of limits in the economic provisions of the constitution – ito lang at wala nang iba

    este iho, panahon pa ni Tita Cory, there have been efforts to amend the Constitution, to change the legislature from bicameral to unicameral.

    baka di mo alam – during the 1986 Con Com, the bicameral form of legislature won out over a unicameral form by a vote of…….. 1-0!!!!!!!!

    the 1986 constitution is basically just a reaction to everything Marcos. too bad the Con Com did not evaluate the Marcos ‘diskartes’ on their own merits and just discarded anything Marcos

  32. anthony,

    thats the same reason why I, and maybe you, and some other bloggers here, are not wasting our time on moronic people power attempts, patalsikin na now na etc., as we all know that the country has more pressing needs than gloria’s removal.

    couldn’t agree more. for someone who lives in a place like davao, who’s people and local govt main concern is upholding the rule of law and maintaining peace & order. a far cry from what’s happening in imperial manila with a noisy minority (civil society), calling themselves patriots who’s main obsession is to bring down an inept president through people power.

  33. Is Romy Neri a patriot, or just a coward?

    and you think that’s it? once neri talks, gloria is gone? through people power? i don’t think so. have you forgotten hello garci?

    why don’t you question the patriotism of your/our congressmen? that’s where you should be focusing instead of neri. you need only 1/3 of the congressmen’s votes (as pointed out repeatedly by anthony scalia here) to take out gloria.

  34. Is Romy Neri a patriot, or just a coward? — jackast

    He’s confused. He wants to be a patriot but cannot summon the courage to be so. Very much like the majority of the Pinoys.

    Pinoys have been cowardly for so long. Just like Neri.

  35. One thing is clear, the shit has hit the halls of Padre Faura, just as in the House of Representatives.

  36. Chacha would be an interesting dead horse to beat. But there’s tastier fish to fry in the Barrel of Fun the Supreme Court has decided to play in. It’s full of the oil of their graven words.

    We shall serve them a rich repast of their own cold, cold eviscerae, their fallacies and learned sounding inanities on display to the vast audience of History.

    Besides, they have many secrets of their own these Justices, judging by the billions of pesos they’ve awarded to one side or another in the hundreds of cases that have come before them.

    Judging by the brazen obstruction of justice in Neri v. Senate, what are the chances they’ve upheld it faithfully in the cases that don’t get front page attention?

    Taking a page out of the American book, I hope the Young Turks in the Senate start paying closer attention to the Budget Hearings as tools of oversight and inquiry and not leave the field open to people who live by the motto that “young whippersnappers got nothing on sneaky ole bastards.”

  37. The Senate must be abolished! – Anthony Scalia

    With a compliant Supreme Court, that goal is within reach.

  38. cvj,

    the ‘walang katapusang’ NBN ZTE hearings are added proof that the Senate must be abolished

  39. Madonna,

    the shit was and is and will continue to be all over the once-august-halls of the Senate

  40. I wonder why the SC had to go by the OSG’s contention that the duly published clause refers to every Congress. THe SC changes in composition also and they don’t exactly promulgate new rules of court with each new SC.

  41. Love of country, is one of those things like belief in God. So there. It’s not subject to debate (for me), only expression. It’s either you have it or you don’t. And no need to be defensive. For some, the notion of God or having a nationality is irrelevant and that is allright. – Madonna

    Jeez.

    If that’s the best explanation one can come up with, then it’s no wonder why so much effort to get Pinoys to “love” their “country” has so far yielded ZILCH results.

    Results. Are you familiar with that term?

    – 😀

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