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By mlq3 Posted in Daily Dose on June 22, 2007 51 Comments 6 min read
The Long View: Lost Previous Dey wuz robbed! Next

Delayed entry today because I’ve started teaching Journalism 105 (Opinion and Editorial Writing) at Letran. So my next 17 Fridays will be eaten up.

The Comelec (surprise, surprise!) proclaims Maguindanao CoCs authentic. The stage is set. There’s no one left to complain -well, except maybe VforCE (Volunteers for Clean Elections) which issued this statement:

Volunteers for Clean Elections (VforCE)

PRESS STATEMENT
June 21, 2007

We believe there is enough evidence to show no elections were held or that there was a failure of elections in many, if not all, areas of Maguindanao.

During the supposed May 14 elections in Maguindanao, teachers who served as members of the Board of Election Inspectors have claimed they filled up ballots in favor of administration candidates. NAMFREL was not given its copy of election returns. And PPCRV and LENTE volunteers were refused access to many polling areas and canvassing centers.

The Comelec cannot and should not continue insisting that teacher-whistleblowers step forward to personally testify on election irregularities in the province; one has already been killed, two have disappeared, and many are in hiding. Without a climate of trust and security, which the Comelec should first seek to create, witnesses cannot reasonably be expected to expose themselves to great risks. If the Comelec seeks stronger evidence of election irregularities, it should simply open up the ballot boxes as suggested by the teachers themselves.

More significantly, crucial documents to show elections did take place in the province have mysteriously gone missing for over a month now. It has not helped that Team Unity has inexplicably failed to produce its own copy of election returns to support its claim of a 12-0 sweep in the senatorial contest. Even if the missing documents eventually show up, they will be highly suspect and therefore should not be considered at all, for doing so could likewise result in a disenfranchisement of Maguindanaoans.

We, however, reiterate that for any special elections in Maguindanao to be meaningful, truthful and free, the Comelec, the PNP/AFP and the government, as the case may be, must take the following steps:

cancel all gun permits and disarm paramilitary units in the province
deploy the Philippine Marines to ensure peace and order, including the safety of voters, election officers, and watchers
replace local Comelec officials with trusted Comelec personnel from other areas
count ballots in safe and secure areas
ensure the effective participation of watchdog groups and full media coverage, and
undertake voters education activities before the elections.

If special elections cannot be conducted under these circumstances, then no such special elections should be held anymore. In such a situation, we believe that it will be reasonable and acceptable to disregard the votes for senators in Maguindanao. For while it appears that local officials have been voted into office and have in fact already been proclaimed (after all, it takes only one vote for an unopposed candidate to win), the votes for the senatorial positions remain mysteriously unaccounted for. With over a month now since elections have been held, even if they should show up, they should be deemed spurious and should therefore disregarded.

The Department of Justice drops charges versus senator-elect Honasan (surprise, surprise!). Not a surprise: GO: Trillanes unlikely to accept amnesty.

President finally gives her nod (daw): Arroyo committed to De Venecia, says Ilocos Sur solon. As Ferdinand Marcos used to say, “Aw, c’mon.” And as the President’s pet party is saying, too (or members thereof): KAMPI leader: Rep. Singson a liar.

Newsbreak reports on the now-ex-BIR chief:

…To be sure, Buñag has met some of the targets in previous months and quarters. But the agency’s performance is highlighted not only in December, but also in April. For two consecutive years under his watch, the agency missed collection targets.

Already, the shortfalls for the first five months of 2007 pushed the budget deficit to P41 billion. This is P10 billion more than the target for the first six months, or from January to June.

Whenever Buñag missed targets, he blamed others…

…The economic team has been promising to investors and analysts that the Philippines will attain a balanced budget by next year. Fiscal performance is a major consideration when they deliberate whether to upgrade or downgrade the outlook on our foreign debts. A downgrade or upgrade has an implication on our interest rates and foreign exchange rates.

With the balanced budget target next year, spending cuts do not seem to be the priority anymore, based on earlier pronouncements of the economic team. Spending cuts have implications on the ability of the various economic sectors to grow.

Infrastructure spending, for example, has an impact on whether an industry or a specific business can have more revenues.

The goal, therefore, has been to improve tax collection. But Buñag has not delivered.

Meanwhile, Arroyo meets with CEO of software firm about BIR operations. And the embattled Finance Secretary’s daddy goes on the warpath: Teves accuses CA House contingent of extortion racket. With an accusation like that, one can excuse the Senate majority being off to a bad start: Secret balloting to choose Senate prexy goes pfft.

Hope springs eternal: Bare terms of $365M ‘lost’ contract: Roxas. As Ellen Tordesillas puts it, it’s a national shame.

Overseas, Vietnam Gets Tough on School Cheats: and Zimbabwe is imploding -can’t help but agree with David Llorito when he says Philippines has become a normal country with normal problems -and that’s good.

The Inquirer editorial and Amando Doronila comment on the bungled cabinet revamp.

In the blogosphere, in On My Way Home, Martin Bautista says the long count is the whole point -and the whole problem- with elections. Commentary on Miguel Zubiri and Maguindanao comes from The Philippine Experience, from Islander in the City, from Unsent, and

On Trillanes, reflections from Philippine Commentary on the quandary the AFP chief finds himself in; Patsada Karajaw on the perils of making the wrong comparisons; Eush Tayco ponders on who’s been elected, and says while the public will should be respected, one doesn’t have to like it. One person who likes it -Trillanes’ election- is Me and My Political View.

Mackybaka! proposes a special election in October to fill the senate vacancy caused by Alfredo Lim’s election as mayor of Manila. The Lonely Vampire Chronicles on Billy Esposo’s unwarranted fears of Estrada -and suffering political karma.

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  1. The Comelec can proclaim Zubiri, based on Maguindanao votes, and tell Pimentel to pursue a protest with the Senate Electoral Tribunal.

    The Comelec can proclaim Pimentel, setting aside the Maguindanao votes, and tell Zubiri to pursue a protest with the Senate Electoral Tribunal.

    The basic democratic issue involved here is whether or not Lintang Bedol can be disenfranchised.

    I think Comelec will stand with democracy and not deprive Lintang Bedol of his constitutional right to elect a senator.

  2. I think it might have been a blunder for Pimentel to file a petition with the Supreme Court because it certainly looks like a pre-proclamation controversy to which the Comelec has exclusive jurisdiction (O.E.C.). I am told the Supreme Court may throw it out for lack of jurisdiction and for being premature. If that happens, the Comelec may have a window during which proclaiming Zubiri will look like it was sanctioned by the defeat of the Pimentel suit.

    During the canvassing of the Maguindanao COCs, the OEC gives Pimentel the opportunity to question each document that comes before the Comelec National Board of Canvassers (the en banc) which must make a ruling on the spot, rulings which may be appealed.

    The Comelec cannot just proclaim Zubiri, it must undertake a canvassing session, at which the Media and Civil Society ought to be present in massive force.

    This election is not over because who gets the Senate Majority now appears to depend on who the 12th senator is. The anyone-but-him syndrome apparently has produced an 11-11 deadlock there for Senate President.

    See, everyone wants to be in the Majority. With only 22 of the 23 votes present, it stands to reason that a tie will obtain until that last senator arrives.

  3. Even in a country where witnesses don’t get shot and intimidated, and witness protection program is available, even ANOMYMOUS tips are given credence and duly investigated and follow up for probable cause. Check this site: 222-tips and many a bad fellow, from criminal and fraudster are sent to jail and the tipster even get rewards without identifying themselves. Just the tips and the cops will do the rest…And here the Comelec insist that witnesses come forward or else no case…

  4. Vic,

    What comes to mind upon reading your entry is the importance of the Senate Blue Ribbon Committee. If I am not mistaken, in this jurisdiction, it is the only office aside from the Ombudsman’s that has no need for a complainant, who has signed a sworn statement, to get an investigation (leading to criminal prosecution) going.

    Witnesses who have the goods on public officials but are fearful of the backlash can call these two offices.

    Be hopeful that the committee chairmanship goes to someone who will make good use of it.

  5. I’m somehow on the same wavelength with DJB (and Gen. Farolan) on the Trillanes issue, maybe just a bit more aggressive. My point –

    The political crime of coup d’etat like rebellion is “an opposition, not to person, but authority.” That authority is the people collectively speaking. Criminal laws against coup d’etat or rebellion are thus enacted for the protection of that collectivity in the same manner that the constitutional proscriptions against impeachable offenses in a presidential impeachment are for the protection of the people against their own elected chief executive. So in coup d’etat as in impeachable offenses the substantive injury of the crime is done directly to the collectivity, the state itself.

    In the event the indicted sitting president is found guilty of an impeachable offense (not otherwise criminalized as a common crime), the relief provided to the injured party, the people, is a mid-course withdrawal of their own electoral mandate, which results in the president being unseated from office.

    The converse is true if the putschists or mutineers, whose intent and motive against authority may have been aborted, instead seek and court – upon essentially the same platform that have driven them to rise in arms – the people’s mandate, to put them into office and thereby allow them peaceably carry out their political purposes. The ultimate consequence of such a mandate if won is a direct verdict of acquittal (or otherwise a grant of pardon) from the selfsame source of all authorities. Moreover, based on the Hernandez doctrine, ingredient elements of the political crime, such as conduct unbecoming an officer stripped of its military character, are deemed extinguished with the quashing of the underlying offense.

    When it comes to political crimes, the indirect un-election device of impeachment, in a way a negative articulation of the sovereign will through the people’s representatives, is as much a purging (and polity regenerating) process as a direct action by the people themselves in an election, beyond any doubt a positive and democratic expression of the same will.

    What would have happened if the office at stake in the election is the presidency whose occupant is also the commander in chief? Will Gen. Esperon or an unelected judge continue to detain a duly elected president without undermining the legitimacy of their own office?

  6. vic & bogchimash, have you ever heard of the constitutionl right of the accused to confront and cross-examine the witnesses arrayed against him as part of procedural due process in criminal prosecutions or investigations? i think i don’t have to tell you about the consequence of not honoring this fundamental right of an accused person in our scheme of justice.

    with inadequate resources and logistics, can you imagine what would happen if every law enforcement or prosecutorial agency of the government would act on every anonymous complaint, and investigates every allegation of wrongdoing by some fictitious accusers?

    how would you guys like it if you find yourself the subject of clandestine witch-hunting based on a disguised telephone voice of your “trusted” neighbor who secretly wishes your downfall?

    in the philippines, it is easy to get the likes of sandra cam, sulce, among others, to sign questionable affidavits.
    how much easier it is to get anonymous con artists to manufacture “evidence” out of thin air?

  7. Abe Margallo, the Constitution of a State embodies the “collective” will of the people of that State. When the Constitution saw it fit to define the circumstances and manner of extinguishing a crime (whether political or common) or its effects, their plain and unambiguous meaning must be followed.

    Our Constitution provides two ways of extinguishing a crime, i.e., amnesty in the case of political offenses and pardon, with respect to common crimes. While the mechanics are different, it’s grant can only be given by the Chief Executive. If the Constitution meant to empower what you refer to as “collectivity” to delete crime and its effects, it would have said so. But it did not. There is a good reason for this. Otherwise it would not be too hard for the likes of Jalosjos, or any popular mass murderer and other heinous criminals, to escape retribution by getting themselves elected by means fair or foul.

    It might very well be that vox populi est suprema lex, but it is not infallible, to say the least. In any event, extinguishment of a crime through “election” is not provided for in the existing statutes and Constitution.

  8. …”The economic team has been promising to investors and analysts that the Philippines will attain a balanced budget by next year. Fiscal performance is a major consideration when they deliberate whether to upgrade or downgrade the outlook on our foreign debts. A downgrade or upgrade has an implication on our interest rates and foreign exchange rates.”

    The huge public sector debt (not only national government debt) is primarily responsible for what we have as a credit rating. It is not about outlook. It is the rating itself. Any rating below investment grade is considered junk.

    The national government is faced with a Catch 22 postion. Proportion for funds for infrastructure projects in the national budget is very low.( 10-12%. ) First problem is you cannot allow any growth of debt ,ergo no deficit. You have to privatize NAPOCOR which has the highest proportion of the public sector debt. All GOCC’s debt eventually migrate to the NG increasing debt service. Theoretically the NG would want to avoid this.

    So if you want increased infrastructrue psending it has to come from more borrowings thru the GSIS and other public instituions. The D. Macapagal highway was financed from funds from the GSIS. Hence Winston Garcia is now a player apart from the Head of Congress when it comes to funds for infra spending. Same with the Land Bank and DBP and SSS. That is where additional funds for infra will come from apart from ODA funds.

    All the hotels built by Imelda waas funded out of GSIS and SSS funds. Hello is anyone out there? Out fiscal problem in the past recent years was NAPOCOR. It is still a milking cow outside the NG budget postion. But when it blow up the debt migrates to the NG budget.

    Garcia cannot play unless he has the funds to play with. Look even line agencies can make their deal privately. The broadband deal is another example. The COMELEC automation deal is another. So many on and on. Big Mike and GMA have opened a pandoras box so everyone wants in on this coming orgy of spending.

    How things change and yet everything remains the same.

  9. This site is gay. Y’all are spending a great of effort with your pretentious comments, wasting lots of time, and not getting enough sex.

  10. Ben,

    Certain political crimes and other politically-motivated behavior are criminalized only at the convenience of the regime in power. In Singapore for example an act which produces a mere tendency (therefore criminal intent is irrelevant) to excite disaffection with the government is criminalized. The US had once a draconian anti-political dissent legislation, the anti-sedition law.

    But even the American founding fathers (from whose political thoughts Filipinos have borrowed liberally) believed that to secure their inalienable rights any instituted government destructive of such ends are subject to “the right of the people to alter or to abolish it, and to institute new government.” (Delaration of Independence)

    Trillanes was simply stating the obvious when in interviews during the electoral campaign he said: “… rebellion is justified if the government goes against the interest of the people. That’s in the preamble of the UN Declaration of Human Rights. It’s also in the US Declaration of Independence.”

    Had Trillanes and the Magdalo group succeeded in instituting a new government, it would have been equally convenient for them to de-criminalize their acts and maybe even criminalize ex post facto the acts of the supporters of the deposed regime. They could also pass more laws to secure their hold to political power or establish a new constitution redefining and/or broadening the scope of their authorities.

    Political crimes are not depraved or anti-social acts (as rapes or pedophilias are) especially from the standpoint of the persons (e.g., George Washington, Andres Bonifacio or Fidel Castro) engaged in them; in the final analysis, these expression of dissent, violent or otherwise, are not simply statutory or constitutional issues but questions that the people in their sovereign capacity ultimately resolve. This is how the Philippine Supreme Court has decided in the case of EDSA I, which is why Cory Aquino, Ramos, Enrile, and Honasan have never been held accountable under the laws then existing for ending the Marcos regime and sending the tyrant into exile.

  11. Abe, the Constitution which is a documentation of the social contract between the people (the body politic) and the government is the supreme law of the land. It is superior even against the “collectivity” you referred to that have effectively surrendered the exercise of sovereignty to its government, within the limitations set forth in that contract.

    As in a simple purchase contract, its binding terms may not be breached capriciously or at the whim of either party. Its provisions may not be changed unilaterally after becoming effective. Doing so is like changing the rules after the game is played or in the middle of it.

    The examples you cited, i.e., Washington and Bonifacio both rebelled against a government that was not “protected” by a contract with the governed. Castro and others in Europe, South and Central America, etc. overthrew existing orders, and maintained control, by force of arms and repression of its populace, always looking behind their backs in case a superior force among their people try to wrest control from their hands .

    Our own Edsa 1 and 2 were aberrations that were justified by the exigencies of the situations. Whether or not we were aware of it, there was hell to pay in both actions – the popular but fatal belief that we can break the social contract and change our government through extra-constitutional means simply by marching hundreds of thousands of “masas” on the streets of Metro Manila. The continuing mass actions after that, albeit small in magnitude, including the misadventures of the “RAM” and “Magdalo” cabals (Honasan and Trillianes, respectively) and the Querubin group, are direct offshots of Edsa 1.

    I do not believe Trillianes deserves absolution solely on the basis of his “election” as senator.

  12. Ben and Abe,

    makisabat lang.

    Abe, The absolution principle you are alluding to applies only to administrative cases filed against elected officials while in office. If elected again, the administrative cases filed against them are deemed forgiven. When you apply that to criminal offenses, you are rewriting constitutional law and criminal law. The last time I checked the Revised Penal Code, being elected to public office is not one of those justifying or exempting circumstances to escape criminal liability.

    It is also an erroneous conclusion that the Hernandez doctrine says that conduct unbecoming is absorbed in the offense of rebellion. Go check the more recent decision of the SC in the case of Gonzales vs Abaya. The SC held that conduct unbecoming cannot be absorbed in the crime of coup d’etat because the former is purely administrative in character. It pertains exclusively to the discipline required of the armed forces.

    Ben, only amnesty extinguishes the crime. Check Monsanto vs Factoran. Pardon essentially forgives, but does not forget. Further, you can only be given pardon if you have been convicted. Amnesty, on the other hand, does not require conviction. You only need the grant of the President and the concurrence of the majority of all the members of Congress. Amnesty, therefore, forgives and forgets. 🙂

  13. To some extent, beyond absolution in the administrative charges, Trillanes must should vindication as he now has the mandate of the people. While he still has to remain a defendant in his crimes against the State, the courts should allow him enough liberty to serve his voters.

    Definitely, by mere election, he should not be declared forgiven. The laws of the land are still in effect. However, the accused, prior to conviction, may be granted temporary liberty. Perhaps Judge Oscar Pimentel can abuse this discretion for the sake of the people who feed him. Of course, the abuse should not be grave or else it will be subject to review by the higher courts.

  14. Jaxius,

    As you are probably aware, Constitutional Law issues are not resolved with mathematical precision. At a given time, we sometimes ask ourselves: Do we value more authority or our liberties? How final decisions of the Supreme Court are? When do we say that the people have asserted their sovereign will on questions that are essentially political? May the president defy congress, the courts and even the Constitution in the name of national security? Don’t we grant that even the exercise of judicial review is equally an undertaking in applied politics? How did for instance the Marcos constitution come into effect, or what would have happened it the Court did not come up with the doctrine of “constructive resignation” and restored Estrada into office against the clamor of EDSA II?

    Is the ruling in Gonzales a reversal of the long-standing doctrine in Hernandez? If so, is the Court barred from reinstituting Hernandez? What is the logic (or the illogic) of limiting “absolution by election” to administrative cases; why not apply the same principles to political crimes?

    I’m actually on a trip right now and plan to blog more on the foregoing when I return.

    For now you may check http://redsherring.blogspot.com/2007/06/trillanes-not-guilty-by-11-m-votes.html to see where I’m coming from.

  15. Jaxius,

    As you are probably aware, Constitutional Law issues are not resolved with mathematical precision. At a given time, we sometimes ask ourselves: Do we value more authority or our liberties? How final decisions of the Supreme Court are? When do we say that the people have asserted their sovereign will on questions that are essentially political? Don’t we grant that even the exercise of judicial review is equally an undertaking in applied politics? How did for instance the Marcos constitution come into effect? What would have happened if the Court have not come up with the doctrine of “constructive resignation” and restored Estrada into office against the clamor of EDSA II?

    Is the ruling in Gonzales really a reversal of the long-standing doctrine in Hernandez? If so, is the Court barred from reinstituting Hernandez? What is the logic (or the illogic) of limiting “absolution by election” to administrative cases; why not apply the same principles to political crimes?

    I’m actually on a road trip right now but plan to blog more on the foregoing when I return.

    For now you may check http://redsherring.blogspot.com/2007/06/trillanes-not-guilty-by-11-m-votes.html perhaps to see where I’m coming from.

  16. jaxuis, thanks for your feedback on amnesty. i do understand its distinctions with pardon (i.e., “the mechanics are different”) but i omitted them in my post. the point is that amnesty and pardon are the only means under our laws and the constitution of escaping punishment for a crime. election to public office is not such a means.

    bogchimash, our’s is a government of laws and not of men. even judges must adhere to that reality. the exercise of judicial discretion is proper only in cases where the law allows it. pre-conviction detention in cases of rebellion or plunder, among others, is not one of them, i think.
    unwarranted exercise of discretion on the part of a judge may lead to a charge of, and conviction for, ignorance of the law.

  17. Bencard,

    You should also include justifying and exempting circumstances under Articles 11 and 12 of the Revised Penal Code. By jurisprudence, there is also “mistake of fact”.

    In non-bailable offenses, the discretion of the judge comes into play when he determines whether the evidence adduced is strong or not. If the evidence is deemed weak, the judge may allow the accused to bail even if he is charged with a capital offense.

  18. “This site is gay. Y’all are spending a great of effort with your pretentious comments, wasting lots of time, and not getting enough sex.”

    I would like to agree with everything, except the last part. And oh, Manolo might object to the use of the word “gay” as pejorative. And FOB, it is OUR time, and if u feel that way, then wth did u even bother to comment?

  19. FOB’s probably disappointed because he googled ‘orgy’ only to discover that hvrds was using the word as a figure of speech.

  20. This might be interesting to you guys.

    In Valencia vs Sandiganbayan, it decided stated that:

    “… Petitioners argue that the dismissal by the Ombudsman of the administrative case against them based on the same subject matter should operate to dismiss the criminal case because the quantum of proof in criminal cases is proof beyond reasonable doubt, while that in administrative cases is only substantial evidence. While that may be true, it should likewise be stressed that the basis of administrative liability differs from criminal liability. The purpose of administrative proceedings is mainly to protect the public service, based on the time-honored principle that a public office is a public trust. On the other hand, the purpose of the criminal prosecution is the punishment of crime.

    Moreover, one of the grounds for the dismissal of the administrative case against petitioners is the fact that they were reelected to office. Indeed, a reelected local official may not be held administratively accountable for misconduct committed during his prior term of office. The rationale for this holding is that when the electorate put him back into office, it is presumed that it did so with full knowledge of his life and character, including his past misconduct. If, armed with such knowledge, it still reelects him, then such reelection is considered a condonation of his past misdeeds.

    However, the re-election of a public official extinguishes ONLY the administrative, but NOT the criminal, liability incurred by him during his previous term of office, thus:

    The ruling, therefore, that – “when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any” – refers only to an action for removal from office and DOES NOT apply to a criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does NOT INCLUDE reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense.”

  21. Bencard, justice league and Jaxius, I’m on a road trip and have no ready access to a computer but just to keep this important issue going here’s my initial reaction to your posts. I’ll try to expound more on it later.

    ——-

    What is important to remember is that the relevant law on the matter, Republic Act No.7055, “AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY” clearly provides that “Members of the Armed forces of the Philippines and other persons subject to military law” shall either be tried by the proper civil courts or by court-martial, not by BOTH.

    R. A. 7055 reads in part:

    Section 1. Members of the Armed forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless, of whether or not civilians are co-accused, victims, or offended parties which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment
    by the civil court, is service-connected, in which case the offense shall be tried by court-martial: Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.

    I hold that R. A. 7055 is a reaffirmation of the long standing doctrine in Hernandez, particularly where the same act or omission that may have given rise to “conduct unbecoming an officer and a gentlemen” under Commonwealth Act No. 408 (otherwise known as the Articles of War) are “mere ingredients” or “part and parcel” of the political crime of coup d’etat as defined by the Revised Penal Code.

    The injunction under R. A. 7055 against proceeding both ways is simply commonsensical. A different reading will allow an absurd and unfair situation where a civil court trying the coup d’etat acquits a member of the armed forces while the military tribunal convicts the same person of mutiny. To enforce the decision of the court martial in such a situation notwithstanding the acquittal by the civil court is to impair civilian supremacy over the military against the mandate not only of R. A. 7055 but the constitution itself.

    Through the President’s alter ego, the DOJ, a decision has been made that Trillanes et al be tried by the proper civil court – a decision that has now precluded the military court from further proceeding with trial of the accused on charges that are “mere ingredients” or “part and parcel” of the underlying offense of coup d’etat.

    On the other hand, in a tripartite system, the criminalization or de-criminalization of certain social behavior belongs to the province of congress, not the president or the courts. Amnesty or presidential pardons are basically checks and balances mechanisms upon that policymaking authority of congress. On the other hand, delegated powers are subject to the LAST SAY of the public, expressed either peaceably and intra-systemically in an election or as in EDSA I by abolishing the legal and constitutional order and the existing government.

    In the last elections, the people, the source of all authorities, have spoken: navy officer Trillanes and the Magdalo group have committed not criminal and anti-social behavior but patriotic acts, in the same manner that Vice President Gloria Arroyo, General Angelo Reyes and Chief Justice Davide had committed essentially the same acts or behavior during the uprising that was EDSA II.

  22. abe, i will leave the issue of whether or not the court martial charge of “conduct unbecoming of an officer or a gentlemen” is subsumed by the penal crime of “coup d’etat” to either jaxius or justice league or both.

    i do have a problem with your proposition that “delegated powers are subject to the LAST SAY of the public”. of course, all powers in the constitution assigned to different branches and agencies of the government are all delegated powers. are you arguing that every legislation, court decision, executive order, appointment and discipline of officials, internal rules and policies of each department are all subject to the “last say” of, and may be countermanded by, the “people”? how much people – all, majority, plurality? from where – metro manila, visayas, mindanao, bicol, ilocos?

    you did not address my point that the constitution is a social contract between the people (the entire nation) and the government, in which said people surrendered the exercise of sovereignty to the other party. the terms of this contract may not be breached in a cavalier fashion without paying dearly for it. there are legal ways to change its provisions but definitely not through self-help actions.

    again, the terms of the existing constitution do not allow absolution (either express or implied) of criminals by election to public office.

  23. correction: last line, 3rd par. should read: definitely not through self-help actions except by people’s initiative done in accordance with law.

  24. Abe,

    With all due respect, the question whether conduct unbecoming is subsumed under the charge of coup d’etat has been definitively answered in the negative by the Supreme Court in the case of Gonzales vs Chief of Staff (GR 164007, August 10, 2006). Yes, it is a Magdalo case.

  25. Abe,

    Didn’t see you earlier comment that is why my comment above seems just a reiteration. I’ll just answer you questions on your blog as a comment on your post re Trillanes.

  26. Jaxius,

    I finally have had the opportunity to read Gonzales v. Abaya [G.R. No. 164007, August 10, 2006] which you have referred to in the above post.

    The facts in Gonzales pertinent to our narrower discussion now are the following:

    1. On December 12, 2003, the Pre-Trial Investigation Panel submitted its final Report to the JAGO, recommending that, following the “doctrine of absorption,” those charged with coup d’etat before the civil court (RTC) should not be charged before the military tribunal for violation of the Articles of War (Article 96 of the Articles of War pertains to Conduct Unbecoming an Officer and a Gentleman).

    2. For its part, the RTC, on February 11, 2004, issued an Order stating that “all charges before the court martial against the accused…are hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat.”

    While not so stated, it is clear that both the Pre-Trial Investigation Panel and the RTC are invoking the half-a-century-old doctrine in Hernandez which states that

    If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance “to the Government the territory of the Philippine Islands or any part thereof,” then said offense becomes stripped of its “common” complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.

    Based on the Hernandez doctrine, ingredient elements of the political crime of coup d’etat, such as “conduct unbecoming an officer and a gentleman,” stripped of its “military” complexion, have become part and parcel of the underlying offense of coup d’etat.

    The specific charge against now Senator Trillanes et al for violation of Article 96 of the Articles of War before the court martial reads:

    All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and the duly-constituted authorities and abused their constitutional duty to protect the people and the State by, among others, attempting to oust the incumbent duly-elected and legitimate President by force and violence, seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the Articles of War.

    The forgoing charge, without stretching one’s imagination, is unmistakably a mere ingredient or part and parcel of the political offense of coup d’etat which is defined by the Revised Penal Code as follows:

    Article 134-A. Coup d’etat; How committed. — The crime of coup d’etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications network, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office of employment with or without civilian support or participation for the purpose of seizing or diminishing state power. (As amended by R.A. 6968).

    Following the long-standing doctrine in Hernandez, which has become part of the law of the land, “conduct unbecoming an officer and a gentlemen” as so charged in the foregoing is stripped of its military complexion and ceases to be “service-connected,” there being only one delictual act involved which is the political crime of coup d’etat.

    Unfortunately, the majority in Gonzales has failed to see the obvious and held that

    . . . there is no merit in petitioners’ argument that they can no longer be charged before the court martial for violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of February 11, 2004 as “not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat,” hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which expressly vests in the court martial the jurisdiction over “service-connected crimes or offenses.”

    There is no mistaking that the RTC is definitely not amending any law but is merely being deferential to a well-settled doctrine in Hernandez that has withstood the test of time, the principled-reasoning therein not having been reversed by any existing law or any obtaining judicial doctrine to the contrary.

    What is disheartening in the majority opinion in Gonzales is that instead of dwelling on the intent and purpose of Republic Act 7055 which is “AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY BY RETURNING TO THE CIVIL COURTS THE JURISDICTION OVER CERTAIN OFFENSES INVOLVING MEMBERS OF THE ARMED FORCES OF THE PHILIPPINES, OTHER PERSONS SUBJECT TO MILITARY LAW, AND THE MEMBERS OF THE PHILIPPINE NATIONAL OFFICE …”, it has gone the opposite direction by emphasizing the necessity “to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses”; and, banking on “the observation made by Mr. Justice Antonio T. Carpio during the deliberation,” the majority defined “civilian supremacy” in the context of the Commander in Chief powers of the President, the same powers used by Marcos, through the military court system, to try and convict (of common crimes such as murder and illegal possession of firearms) and sentence to death by firing squad Senator Benigno Acquino, a civilian, even when the civil courts were open to hear those cases.

    The Carpio rationale is not the intent and purpose of R.A. 7055 and the definition therein of “civilian supremacy” as explained by Senator Wigberto Tañada, the sponsor of the legislation:

    [A]s long as the civil courts in the land remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the aforementioned constitutional provisions on the supremacy of civilian authority over the military and the integrity and independence of the judiciary, as well as the due process and equal-protection clauses of the Constitution.

    The majority in Gonzales has violated its own precepts that “The first and fundamental duty of the courts is merely to apply the law ‘as they find it, not as they like it to be.’”

    I believe the opinion of Justice Tinga, concurred in by Justice Ynares-Santiago and Justice Azcuna, is on many scores the more cogent one, one of the main contentions therein being

    the majority has laid down a general rule that if members of the military are charged before military tribunals with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, then the court-martial proceedings would progress unhampered even if the acts which constitute the violation of the Articles of War also constitute offenses under the Revised Penal Code. The court-martial proceedings would also ensue even if the said personnel are also charged for the same acts with a criminal case before the civilian court, and even if the civilian court determines that the acts are not service-connected. Most critically, this view would allow the defendant to be tried and convicted by both the military and civilian courts for the same acts, despite the consistent jurisprudential rule that double jeopardy applies even as between court-martial and criminal trials. I cannot agree to these general propositions, excepting when the defendants happen to be charged before the court-martial for violation of Article 96 of the Articles of War.

    Justice Tinga has explained his exception as to Article 96 of the Articles of War:

    However, I submit that Article of War 96 warrants special consideration, as it differs in character from the other Articles of War referred to in Section 1 of RA 7055.

    Article 96 of Commonwealth Act No. 408, as amended, reads:
    Art. 96. Conduct Unbecoming an Officer and a Gentleman. — Any officer, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.

    Justice Callejo, Sr. points out in his Concurring Opinion that “conduct unbecoming an officer and a gentleman is a uniquely military offense,” and that “[t]he article proscribing conduct unbecoming an officer and a gentleman has been held to be wholly independent of other definitions of offenses xxx [and] is not subject to preemption by other punitive articles.” It is difficult to dispute these conclusions, which derive from American military case law. After all, “conduct unbecoming” pertains to the unique exigencies of military life and discipline, whereby an officer is expected to conform to an idiosyncratic etiquette not required of civilians.

    Yet more pertinent to my position is the penalty prescribed by Article 96 for “conduct unbecoming.” The penalty is dismissal from service, a penalty which is administrative in character, and beyond the jurisdiction of the civilian court to impose. Notably, of all the Articles of War referred to in Section 1 of RA 7055, it is only Article 96 that provides for dismissal from service as the exclusive penalty. All the other articles so mentioned allow for the penalty of death, imprisonment, or a punishment “as a court-martial may so direct” which could very well constitute any deprivation of life or liberty. While these other articles prescribes a penalty which is penal in nature, it is only Article 96 which provides for a penalty which is administrative in character.

    As a result, I am prepared to conclude that courts-martial retain the jurisdiction to try violations of Article 96 of Commonwealth Act No. 408, or conduct unbecoming of an officer, even if the RTC determines that the acts constituting such violation are service-connected.

    I take exception to Justice Tinga’s exception for the following reasons:

    1. Contrary to the supposed “uniquely military” character of “conduct unbecoming an officer and a gentlemen,” the are many examples of “conduct unbecoming an officer and a gentleman” that are non-military in nature such as a) dishonorable failure to pay a debt; b) cheating on an exam; c) opening and reading a letter of another without authority; d) being drunk and disorderly in a public place; e) public association with known prostitutes; and f) failing without good cause to support the officer’s family.

    2. The penalty of reclusion perpetua for coup d’etat carries with it perpetual absolute disqualification from public office and therefore dismissal from military service (which is a public office or employment) is within the jurisdiction of civilian courts to impose.

  27. Bencard,

    I am not one of those enamored by the social contract theory. What I have once posted in PCIJ partly explains why:

    Think about it, now. Hobbes, Locke, and Rousseau were essentially “bloggers,” weren’t they? And like many of the bloggers in this forum, they had their own agenda to advance.

    Let’s look at Hobbes for a moment. Hobbes was a monarchist. Thus he used certain arguments for individualism to conclude in favor of absolutism. His thesis in Leviathan: Because people pursued self-interest, the ruler needed total power to keep the people under control. By way of “social contract,” people supposedly gave up their rights to a strong ruler. Thus, his preference for a government by what we now call as an “authoritarian” ruler, an absolute monarch.

    What about Locke. Locke postulated that governmental powers come from the consent of the governed; the purpose of government is to protect “life, liberty and PROPERTY”; and if government fails to do, “citizens” have a right to overthrow it. It appears however that his context of “citizens” was the rising bourgeoisie of his time. The progeny of this is, I believe, “elitism.” The American founding fathers, who were inspired by Locke, attempted to avoid the anomaly by a clever spin: “life, liberty and the PURSUIT OF HAPPINESS.” The profession of spin-doctors is an old one.

    Rousseau? He was a plebeian, a son of watchmaker and he himself worked as an engraver before being recognized as a writer. He was passionately committed to individual freedom. His famous paradox was: “Man is born free, and everywhere he is in chains.” And so to him the only good government is the one FREELY formed by the people and guided by the “general will”. Hence, the concept of “direct democracy,” where all citizens have the right to participate in making laws, and the idea of liberty as “participation” instead of “freedom from state interference” which was the Lockean tradition of protecting property rights. Rousseau’s idea inspired the French Revolution and, from what I’ve been taught, Bonifacio and his adherents during the Philippine Revolution.

    In the final analysis, ALL that I am saying is that the matter of whether the acts of Trillanes et al by entering the premises of the Oakwood apartment building, disarming the security guards and planting explosive devices around the building, announcing, through the broadcast media, their grievances against the administration of President Arroyo, such grievances as the graft and corruption in the military, the illegal sale of arms and ammunition to the “enemies” of the State, and the bombings in Davao City intended to acquire more military assistance from the US government, and declaring their withdrawal of support from their Commander-in-Chief and demanding that she resign as president of the republic and calling as well for the resignation of her cabinet members and the top brass of the AFP and PNP are patriotic acts or criminal offenses, is no longer merely a legal question that the courts can pass upon but is now in the nature of a political question that only the people can ultimately decide, as indeed it did, in their sovereign capacity.

    The people have spoken against sending Trillanes to the gallows; they have chosen that their man speak for them in the Senate to carry out the political agenda and purposes that have been promised during the campaign. That is people’s mandate in the last election that ought to be respected by any other agencies of the collectivity.

  28. abe, i’m sorry i almost forgot about this thread, a bit engrossed in the two recent posts of mlq3. even for a semi-retiree, life in the u.s. could be too hectic. we had a relative of my wife visiting with us for the last 2 weeks. she is very articulate professor in political science and an avid pro-GMA. you can just imagine the conversations we had on the whole issue.

    anyway, thanks for your excerpts about Hobbes, Locke and Rosseau (my compliments for all those cut & pasting). while you concentrated on their perceived personal agenda in writing their thesis, all three of them (plus Montesquieu) support the social contract doctrine (the agreement between the citizens and government forming the foundation of a political society). Too bad you are not “enamored” with the idea but that doesn’t detract from its validity in any way. All democratic societies now existing in the world owe their being from this article of faith.

    i am not going to repeat my argument that the existing constitution, the revised penal code, the articles of war.
    the supreme court decisions on the issue in question, are the binding authorities that militate against absolving trillianes. i think jaxius’ and justice league’s expositions are persuasive enough (my compliments to them too).

    btw, the people did not specifically vote for trillianes to absolve him for his crimes and misconduct. i’m sure a great many of them didn’t know why or what are they voting him for, as when Jalosjos won “overwhelmingly” in spite of his conviction. The election was not about absolution from punitive consequence of military misconduct, or commission of a crime.

  29. Bencard,

    I did not bother to respond to justice league because, as you would have noted, the issue in Valencia is whether the dismissal of an administrative case based on the same subject matter should operate to dismiss the criminal case, which is not in point to our discussion; and, further, the doctrine of “condonation by election” in administrative cases cited therein is at best obiter dictum (or merely illustrative).

    Perhaps, my clarification to jaxius in my blog will help explain why I am not invoking the doctrine of condonation:

    “The reference in my post to a direct verdict of not guilty (akin to a judicial function), or otherwise a grant of pardon (an executive privilege), is simply analogous. Meaning, since a law defining an offense can only be rendered inoperative or annulled by another law passed by congress or by direct initiative of the people repealing or rejecting it – and both events have not taken place here – the decision of the people in the last election could only mean to read thus: We, or a great portion of us enough to send someone to represent us in the senate, do not see the act or omission pending adjudication before one un-elected judge as a threat to our authority at all; on the contrary, we actually approve of it and in the senate we want our man peaceably to carry out his political purposes that we deem appropriate and necessary.

    “Such an exercise of the sovereign will is thus not a matter of legality anymore but of political wisdom as to which the courts should discharge the prudence of not interfering. Essentially, this is how the Supreme Court treated the uprising during EDSA I.

    “On the other hand, as regards the other members of the Magdalo group who did not run for office, the will of the people should signify a strong signal to the executive to weigh in the option of declining to further prosecute the matter or, to preempt an adverse action from an obstinate judge, for the President to consider the privilege of granting amnesty or pardon.

    “I do not see the need for a novel doctrine here. As you know, the “political question” doctrine is already an ancient one.”

    Btw, I’m not sure if you are aware that John Dewey, considered as America’s foremost political thinker, is also a critic of the social contract theory.

  30. … and also, Ben, I hope your wife’s relative will have a good time during her visit. Please do invite her to join our exchange in her spare time.

  31. Ihanks for inviting my cousin in-law. I’ll mention that to her and I’m sure she will appreciate joining our little forum here.

    I still can’t see how you can treat a military discipline matter a “political question”. Let me ask you, Abe. Suppose a member of our military, without resigning from the service, defects to the NPA and using his government-issued high powered weapons, wages war against, and kills a lot of his former comrades. When interviewed by ABS-CBN in his hideout, he explains that he turned against the government because he is not happy with GMA and the military chain of command. When captured, he is indicted in court for rebellion, multiple murders, and theft of government property. The military instituted court martial proceedings for conduct unbecoming of an officer and a gentleman based on the same facts. Hailed as a hero by the enemies of GMA, he run for senator and won. His lawyers now contend that his election is a “direct” verdict of the people to free him from detention and exonerate him from all charges, including the subject of the court martial proceedings. Are they correct?

    Is a soldier becomes exempt from the sanctions of the articles of war simply by getting elected to a civilian office?

  32. Bencard,

    Your hypothetical is neat and smart and suits very well your argument. But before trying to fix it in closer approximation of the facts, maybe we should first compare your imagined example to the actual charges against GMA in the second impeachment proceeding.

    Two of the political crimes (or, properly, State crimes) in the nature of impeachable offenses GMA was accused of were the following:

    1) That she “appointed Virgilio Garcillano as COMELEC Commissioner and interfered with and manipulated the official election duties of the latter to orchestrate and implement electoral fraud” and that “During the 2004 election period, [Arroyo] engaged in unlawful correspondence with Commissioner Garcillano . . . wherein she directed/countenanced/abetted the commission” of various “electoral frauds”;

    2) That she “has allowed, abetted and countenanced the assassination and summary executions of 690 political dissenters and 42 media practitioners, the involuntary disappearance of some 176 persons, the torture of 320 persons in the hands of government authorities.

    If you see a fair parallelism here, are Trillanes et al justified in attempting to withdraw their consent from the so-called “social contract” in the exercise of what the American Founding Fathers considered as their right of rebellion?

    Under the majoritarian principle, the attempt to un-elect GMA, despite the gravity of the foregoing charges, did not materialize and thus she, in effect exonerated, continues to hold on to her office. I grant the point that decision of GMA’s allies in the House is in the nature of a “political question” which bars the courts from interfering.

    On the other hand, if the rebel in your hypothetical in furtherance of his political crime of rebellion killed some of his perceived enemies and/or caused property destructions (in the same manner that Washington and his militia killed thousands of men belonging to the British army and caused enormous devastation) and thereafter he was elected to a public office under the same majoritarian principle that prevented GMA from being un-elected through impeachment (and also in the equivalent fashion that Washington was made the first president of the US) would that be correct too? Or would you allow the correctness or incorrectness of the people’s choice to be subject to judicial review?

    Now, let’s fix the clever swirl in your hypothetical and simply state the facts.

    Please note that then navy officer Trillanes and the Magdalo group did not turn against the government and the military chain of command simply because they were unhappy with them.

    Their grievances announced during the Oakwood incident were clear and specific, such as to name a few: the illegal sale of arms and ammunition to the “enemies” of the State, and the bombings in Davao City intended to acquire more military assistance from the US government (in Manolo’s interview with Trillanes during the election campaign, he also accused the government of Arroyo, among other things, of committing genocide in Mindanao). Trillanes ran for and won a seat in the senate by more than 11 million votes on this platform of polity-shattering grievances in addition to the ignoble state crimes of extra-judicial killings that have been borne out by inquiries of reputable international organizations, and of course on the shameful “Hello Garci” poll cheating debacle that all put together have in Lockean sense converted the Arroyo regime into a rebel government.

    This post is getting kilometric again so I will stop here for now.

    (Note: Ben, on your last question whether “a soldier becomes exempt from the sanctions of the articles of war simply by getting elected to a civilian office,” I ask that you take time to re-read my posts above, especially that of June 29, at 7:10 am, so that our exchange could more precise and focused.)

  33. to the interesting point and counterpoint between bencard and abe, i’d just like to put forward an observation.

    what is the role that election plays, when it comes to charges raised against a candidate?

    my understand is that when it comes to certain kinds of charges, they are deemed dealt with, definitively, in favor of the accused, if the accused is elected. for example, certain kinds of charges are deemed dropped or settled when a mayor is elected. the assumption is, the electorate knew of the charges, and absolved the candidate by electing him.

    there are other charges or even crimes that may be settled by the courts, but the person charged will still seek elected office as a means of vindicating themselves, regardless of the verdict of the courts.

    a very good example is jose p. laurel (and even claro m. recto). he was charged with treason, etc. for collaborating with the japanese. he underwent trial. from his imprisonment and the filing of charges, to the creation of the people’s court to try the collaboration cases, we could say the whole thing was a cut-and-dried effort to bring them to justice.

    but then president roxas proposed amnesty; his amnesty proclamation was undertaken with the approval of congress. a political solution to a legal question: i believe some of those who were beneficiaries of the amnesty wanted either a formal dismissal of the charges by the courts, or would have preferred to fight it out so they could be acquitted by the courts, but the amnesty was there, it was in effect, it put an end to the trials, period.

    the officials affected then ran for public office to vindicate themselves; it wasn’t enough that there was an amnesty; they wanted the people’s verdict. when laurel ran for the senate and won, he deemed it a vindication of his wartime conduct. his being elected didn’t affect his having been charged with treason -or could have had an effect on the amnesty already in effect- but it certainly enabled him to argue that the people had clearly said, they approved of his wartime conduct.

    fast forward to the estradas: in the 2001 elections that served as a referendum on edsa dos, the administration slate won big, a ratification, in a sense, of that exercise; yet loi estrada and jonggoy won: a vindication of the former president, in other words, a mixed verdict, but also, a personal vindication for loi and jinggoy who had also faced questions on their conduct during estrada’s presidency. at the time, still a supporter of the president, i pointed this out to some fellow supporters of edsa dos, and brought up the example of laurel, which offended them. but i said, look, the people have spoken; it won’t be productive to keep hammering away at them: they have proven they not only have a constituency, but their election has vindicated them and everyone has to recognize the fact.

    which is why i also proposed estrada run for senator, it would have definitively settled his actual standing before the people, and whether it would have been productive to keep trying his plunder case or simply move in the direction of an amnesty program of some sort. estrada didn’t run, so the arena remains fully with the anti-graft court, and whatever its verdict will be won’t result in his being able to counter the results with anything particularly substantial, such as pointing to a clear and existing mandate.

  34. mlq3, i don’t want to belabor the point but i have to say that the law, as it exists today, does not support the position that election to office is equivalent to people’s verdict absolving an accused of military offense.

    abe you asserted that the valencia case, as cited by justice league and which i find persuasive, is not a case in point and thus not controlling. isn’t it decisive of the question of whether or not conduct unbecoming, etc.in a court martial is in the nature of administrative case? how about jaxius’ citation of gonzales (a magdalo case), which i also find irrefutably precedent-setting on the trillianes issue in the light of valencia.? is it not binding on the case of trillianes as the prevailing case law?

  35. Manolo,

    Thanks for the lesson in political history. It appears that our lawyers, politicians, and judges have a lot of catching up to do.

    Bencard,

    In Gonzales, the Court first correctly interpreted the R. A. No. 7055 as follows:

    “Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d’etat), other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the proper civil court. ”

    I have taken the foregoing interpretation of the Court to mean that:

    “Republic Act No.7055, ‘AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY’ clearly provides that ‘Members of the Armed forces of the Philippines and other persons subject to military law’ shall either be tried by the proper civil courts or by court-martial, not by BOTH.”

    I then proceeded to reason out –

    1. That “R. A. 7055 is a reaffirmation of the long-standing doctrine in People v. Hernandez (99 Phil. 515 [1956]), particularly where the same act or omission that may have given rise to ‘conduct unbecoming an officer and a gentlemen’ under Commonwealth Act No. 408 (otherwise known as the Articles of War) are ‘mere ingredients’ or ‘part and parcel’ of the political crime of coup d’etat as defined by the Revised Penal Code.”

    2. That “The injunction under R. A. 7055 against proceeding both ways is simply commonsensical. A different reading will allow an absurd and arbitrary situation where a civil court trying the coup d’etat acquits a member of the armed forces while the military tribunal convicts the same person of mutiny. To enforce the decision of the court martial under such a scenario notwithstanding the acquittal by the civil court is to impair civilian supremacy over the military against the mandate not only of R. A. 7055 but the Constitution itself.”

    3. That “Through the President’s alter ego, the Department of Justice, a decision has been made that Trillanes et al be tried by the proper civil court – a decision that has the effect of precluding the military court from further proceeding with the trial of the accused on charges that are ‘mere ingredients’ or ‘part and parcel’ of the underlying offense of coup d’etat.”

    However, the Court in Gonzales, in beach of its own aforementioned interpretation of R.A. No. 7055, held that the prosecution of Trillanes et al before a court-martial for “conduct unbecoming an officer and a gentleman” under Commonwealth Act No. 408 (specifically Article 96, Articles of War) can proceed independently and concurrently with the prosecution their prosecution for coup d’etat under the Revised Penal Code because, according to the Court, of the “service-connected” nature of the former offense and the that the penalty for it is “purely disciplinary.”

    In my blog, jaxius, who sounds as good a lawyer as you are, raised two challenging questions:

    1. Conduct unbecoming an officer and a gentleman is an “offense against discipline which no military organization cannot exist without. The demands of discipline on commissioned officers such that the standards of conduct required of them are set really high is because they should lead by example among their soldiers. Why do you think all military organizations value honor and duty?”

    2. “ . . . would the Ombudsman be stripped of its power to suspend or dismiss an employee for administrative violations because a criminal case has been filed in the courts?

    Jaxius added: “From what I understood of the Hernandez doctrine, rebellion absorbs common crimes, not administrative offenses.”

    I responded to Jaxius in the following:

    1. Regardless of whether or not “conduct unbecoming an officer and a gentleman” is a “uniquely military” offense, could a navy officer, however, stage a coup d’etat and be held accountable for it and still claim he conducted himself in a manner becoming an officer and a gentleman? In the same manner, can you take up arms against the government in rebellion without any expectation of killing or causing harm to your perceived enemies or being killed or maimed yourself? If your answer is in the negative that means that you fully understand how good a law the Hernandez doctrine is.

    2. What or who is there to suspend (the purpose of suspension being to prevent the official from using his office to harass or influence witnesses or to tamper with records or documents that might be vital to the prosecution of the case against him) if that official has been deprived of his physical liberties and/or has not been discharging the function of his office since his detention?

    What or who is there to dismiss (dismissal from service being the capital punishment in administrative cases) when the officeholder has already voluntarily severed himself from military service by running for an elective office, and eventually being elected by the people as one of their senators, is now supposed to discharge his duties in another capacity as a lawmaker?

    Under the Hernandez doctrine, when certain delictual acts are “mere ingredients” or “part and parcel” of the underlying “political offense,” the former are deemed integrated into the latter.

    By operation of R.A. 7055 in conjunction with the Hernandez doctrine, any action under Article 96 of Commonwealth Act No. 408 as to Senator Trillanes is now mooted to say the least.

    Bencard, I’m sure you realize that Philippine legal system is a hybrid one having been fashioned both in the civil law and in the common law traditions.

    In the civil law tradition, the judge does not feel bound to refer to a previous decision of a court, but uses the text of code (the statute or the constitution) as the bases for legal analysis. Civil law judges are not however impervious to the temptation “to mold the law” given that, as I have tried to explain in another post, “the professed completeness, comprehensiveness and lucidity of the code are far from being punctilious; nonetheless, when fine-tuning the law, civil law judges are deemed to do it with conscious reverence for the code, and with due recognition of their secondary place relative to the code provisions and the legislature . . .” so that “the purpose of the code as the sole source of positive law is not defeated by such act of judicial refinement.” Hence, if there is a failure of logic in the law, the remedy is to amend the law.

    In the common law tradition, the courts develop principles from a number of rules of decision through experimentation. Case laws (or judge-made laws) are treated not as final truths, but according to Graham Hughes, “as working hypotheses, continually retested in those great laboratories of the law, the courts of justice.” What however gives legitimacy to the so-called finality of a judge-made law is its reasoning process. If there is a failure of logic in the case law such that the rule thus developed operates unfairly, the remedy is to reformulate the reasoning process. Principled and logical reasoning is what sustain judge-made laws, without which the people would not consent to them. Absent such public acquiescence, judicial decisions become mere diktats which will have no place in a democracy. In the final analysis, a court ruling is well-settled only the people accept it as well-reasoned.

  36. o.k. abe, you make a strong, well-reasoned argument, but until Gonzales is overturned, it is part of the law of the land. you can criticize the wisdom of it in the most eloquent words, impugn its correctness, call it disingenuous, or arbitrary and against the express provision of the applicable law, it is still the holding of our court of last resort and must be respected by all, not the least, by the inferior courts.

    i don’t believe our legal system has discarded the universal principle of stare decisis (adherence to precedents), otherwise our whole judicial processes would be in turmoil for sheer lack of predictability and stability, if not reliability. needless to say, in making its decision, the court applies the law (the constitution and the statutes) with the hope of settling the issues covered thereby with finality. of course, if an opportunity to revisit them arises in a subsequent case, the same court may or may not change its mind. it cannot, however, be capricious, whimsical, or cavalier in reversing itself in deference to the political wind blowing at the moment.

    i go back to the “social contract” doctrine to contradict your proposition that a court ruling can only be considered “well-settled” when people accept it as “well-reasoned”. again, i ask, how and when should the people manifest its acceptance. should there be a plebescite to find out how “people” feel about a court’s decision? until then, is anybody free to defy it? is “principled and logical reasoning” what the “people” say it is?

  37. Bencard, the Court may have the final say in a particular case but not the political forest of which the case forms part. A recent good example is Estrada v. Desierto wherein the Court, to preserve, among other things, its own place in the existing legal order, has taken the audacity to decide that President Estrada during EDSA II, unlike Marcos during EDSA I, was talked out rather than forced out of office in a rebellion (what occurred according to the Court was not a rebellion or revolution but an exercise in free speech). Estrada v. Desierto is a horrific case law that will not see its finality in the immediate future. It is bad precedent because if the legal order has remained intact despite the EDSA II uprising, then President Gloria Macapagal-Arroyo, former supreme court chief justices Davide and Panganiban and former AFP Chief of Staff Angelo Reyes, to name a few, are as liable today as Trillanes et al for the crime of coup d’etat and/or rebellion, or if at all for conspiracy to commit those crimes (up to the present the criminal action against Arroyo et al remains viable since rebellion like coup d’etat prescribes in 20 years and conspiracy to commit the same crimes prescribes in 10 years). To exempt the EDSA II rebels from liability while the state prosecutors are being hard today on Trillanes et al is to trample equal justice.

    The Javellana decision, which declared that “there is no further judicial obstacle to the (Marcos constitution) being in force and effect,” is another example proving that the Court is neither final or infallible. By direct action of the people, the infamous brainchild of Marcos was ultimately consigned to obloquy with him.

    Needless to state, constitutional values are also shaped by non-judicial forces (yes, plebiscite is one avenue, but even small exchanges like this by ordinary people also count) as the development of those values are not linear but rather circular, the process ratcheting back on itself again and again (the persistence of DJB on the EDSA II issue is possibly a case in point) until the people accepts the outcome.

  38. Abe,

    No one in his right mind would disagree with you when you say that Estrada vs Desierto is a bad precedent. I don’t think the Supreme Court looks forward to and relishes on the possibility of passing judgment at another case involving the same situation. Hard cases make bad law. However, its finality, as pertains the parties affected thereby, is beyond question. Even if you get the Supreme Court to reverse its view in that case, the doctrine of operative facts negate the acceptance of “a principle of absolute retroactive invalidity.”

    Decisions of the Supreme Court enunciating new doctrines can only be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof. I know that you are familiar with the following passage:

    “The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects – with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, or prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination…”

  39. abe, reshaping constitutional values by relatively few ordinary people, without compelling necessity, universal desire for change, and unassailable reason and logic, is like filling up a pool drip by drip through a dry faucet.
    only a substantial majority of the entire nation, represented by agents of its choice, and in accordance with its pre-set rules, can decisively effect such a change in a much shorter process.

    as to your insistence that the edsa 2 personalities (notably GMA, davide, panganiban, reyes, etc.) are liable for the crime of rebellion, i am sure you are familiar with the principle of mens rea (intent to commit a crime or to bring about the criminal result)as a primordial element of a criminal offense. this you have to prove beyond reasonable doubt. do you think you, or anyone, can fulfill this burden, in the face of binding court’s findings, as well as conventional wisdom, that these “accused” intended to preserve the government that had been relinquished by the incumbent? in contrast, trillianes’ apparent purpose was to eliminate (kill) GMA, and any one else who stand in the way, not really to overthrow the constitutional government which he and his co-conspirators want to fill with individuals or groups of their own choice.

  40. Jaxius,

    Interestingly, the doctrine announced by the US Supreme Court in Chicot County v. Baxter (1940) which you have quoted above is also an example of a good case law having qualified or modified a bad precedent first established in Norton v. Shelby (1886) which held that “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” The Chicot ruling, realistic and well-reasoned, has been adopted by our Supreme Court in a number of cases and, as you are aware, is now a well-settled doctrine in Philippine Constitutional Law.

    Bencard,

    There is wisdom in the first part of your statement.

    However, as you very well know, to claim “apparent” does not also “prove beyond reasonable doubt.”

  41. abe, i said “apparent” with respect to trillianes because his “mens rea” is still sub judice and no conclusive pronouncements have yet been made on that matter. on the other hand estrada v. arroyo and its companion cases have validated the acts of the edsa 2 participants. how can you successfully prosecute them for rebellion?

  42. Berncard,

    My earlier two posts in this site hopefully will help explain my points:

    1.The Edsa Dos rebellion was already legitimate having succeeded to install a new government and thereby de-criminalizing the rebellion with or without Davide’s colleagues in the SC attempting to re-legitimize in Estrada v. Desierto; but by doing so, that is, by bringing the new government back into the fold of the deposed order pursuant to the decision, the Court has criminalized anew the rebellion in which Davide was an active participant. On this score … Davide as well as his partner in crime Panganiban remains as a rebel roaming free yet to be indicted.

    2. The whole point of my post is to underscore the absurdity (which I once called “a perpetuity in juridical misadventure”) of the decision in Estrada v. Desierto, that is, with the justices deciding to preserve their seats in the SC by holding in effect that there was no change in the constitutional order despite EDSA Dos, they have on the other hand also ruled that the millions who participated in the uprising as well as their active supporters were rebels and abettors of the rebellion. Unfortunately for the robed sires, two of their members (Davide and Panganiban) were wearing two hats. So, as SC members they have kept their judicial seats by virtue of Estrada v. Desierto, but as rebels, their acts remain as indictable offenses.

    It should be pointed out however that the legitimacy issue of the GMA regime post “Hello Garci” is another thing. In my opinion this remains an open issue and a very difficult one. (Note: the issue had already led to two impeachment attempts and even in the last mid-term election, this was the most contentious one). Let’s see how this will unfold in a new Trillanes-led investigation in the Senate.

    Here’s how Mike Arroyo admitted to the crime of coup d’etat while openly implicating others as co-plotters:

    “Our group there was a back-up strike force. In fact, it was our group that won over to our side the PNP first. If Panfilo Lacson had resisted, he and his men would have been repelled: there would have been bloodshed, but not on EDSA. In every place where Erap loyalists had a force, we had a counter-force to face it, with orders to shoot. And not only in Metro Manila. Carillo had already been sent to the provinces; and in Nueva Ecija, for instance, we had Rabosa. This was a fight to the finish. That’s why those five days that Erap was demanding were so important. He was counting on counter-coups and baliktaran.”

    Doesn’t the above prove not only criminal intent but in fact a direct admission of the commission of the crime of coup d’etat?

    To be sure, let’s read this one line again “ He (Erap) was counting on counter-coups and balikataran.” Could anyone still mistake this for anything else than that Arroyo and gang were admitting to the commission of the crime of coup d’etat?

    Today, even President Arroyo’s executive secretary, is trashing Estrada v. Desierto. In a press briefing, Secretary Ermita stressed that the foundation of Mrs. Arroyo’s power, then a vice president, was due to her taking over the presidency of Estrada after his ouster in January 2001 through a people power revolt.

    With Estrada v. Desierto as the obtaining law, GMA, her husband and the defecting generals are as liable today as Trillanes et al under the Revised Penal Code.

    The critical question now is: Why only prosecute Trillanes et al?

  43. abe, in addition to my post on the “koko puff” thread, the mere use by mike arroyo of the term “counter-coup” is not probative of the crime of coup d’etat. what constitute the crime is a matter of fact and law, not word usage.

    btw, your constant reference to GMA’s “post-Garci” legitimacy issue is a little way out of tangent. trillianes or not, the issue is dead and that’s that. what does he know that we don’t? to be honest, i’m not at all impressed by him. what a con act?

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