I myself am surprised the Chief Justice has gone beyond his dissenting opinion and made the rounds of the media outlets. But then again, with nine of his colleagues retiring next year, he is in the unenviable position of having his name attached to what might end up being called a puppet supreme court.
It was a case where Malacañang worked overtime lobbying with justices who could provide the swing vote, abs-cbnNEws.com/Newsbreak gathered from court insiders and observers who requested no attribution for fear of reprisal or jeopardizing their pending cases in the Tribunal.
We learned that just before the oral argument last March 4, the justices were evenly divided on the issue, a situation that did not favor Neri since he had to get an absolute majority for his petition to be granted.
It was in the two-week gap that followed that the Palace applied pressure on some justices. One justice reportedly was promised something in exchange for voting for Neri, while the loyalty check was applied on the others.
A justice known to be close to Arroyo was reportedly instrumental in the appointment of newly-named associate justice Arturo Brion, a move that assured the President that Brion would vote for Neri.
Brion, who was appointed only last week, participated in the voting.
One of the sources said the Palace learned its lesson from the Feb. 12 “Hello Garci” decision where a majority of nine justices, against six, ruled that the warning of the National Telecommunications Commission and the Department of Justice against the playing of the controversial tape is illegal.
In that case, the Palace apparently did not exert pressure on its appointees in the SC.
One of the sources said Puno was aware that the initial stalemate would not hold, and that the numbers will tilt in favor of Neri. This was why he proposed the compromise solution that would have allowed Neri to testify in the Senate but without being confronted with the three contentious questions where he invoked executive privilege.
The Senate, however, rejected the compromise solution, took the risk, but paid a heavy price.
Simply put, the Neri ruling implies that “the SC is under the control of the President and that Puno does not seem to have the majority of the justices,” the sources said. “9-6 will be the configuration for the rest of the year.”
It is one clear sign, they said, that the SC will be Malacanang’s rubber-stamp in the last two-and-a-half-years of her term. Arroyo is supposed to step down in June 2010.
One source, who has intensive background in the SC, said that from a short-term standpoint, Malacanang may control the Tribunal, but her hold could loosen in the long-term.
The justices, who are her appointees, might see the need to finally exert independence as the end of Arroyo’ term nears. “There will be a change of feelings shortly before she steps down.”
And so, if he is to be the lone warrior left in the high court, perhaps the Chief Justice wants the public to know that he won’t be tied down.
Chief Justice Puno penned a dissenting opinion with history, with posterity, in mind. It’s a dissenting opinion with future generations of lawyers, perhaps, in mind, and to this end, I find the comments of soliloquyboy, a law student, interesting:
On TV, Biazon was wondering whether or not the case would be applicable for all members of the Cabinet, or only for Romulo Neri. Sadly, that’s not exactly something that can be answered on its face. As part of our country’s jurisprudence, the case has become technically, a part of our legal system, thanks to Article 8 of the Civil Code. As my ObliCon professor Sir JJ Disini would say, time will tell whether the case is good law or not.
Think of it this way: this case, to me, is a case of Ermita-Malate Hotel vs Manila Prince Hotel. It’ll either be Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila , where it can become one of the most oft-quoted cases in Philippine history, especially since it’s the first or one of the few where you have two branches of government really duking it out, on the basis of executive privilege (Senate vs Ermita doesn’t count). Or it can become Manila Prince Hotel vs GSIS , where it’s a legal punchline, according to my Legal Method professor.
Back to the Chief Justice. Read his dissenting opinion, the whole thing. But for now, some extracts from what he wrote, and which gives the gist of what he was trying to argue:
The doctrine of executive privilege is tension between disclosure and secrecy in a democracy. Its doctrinal recognition in the Philippines finds its origin in the U.S. political and legal system and literature. At the outset, it is worth noting that the provisions of the U.S. Constitution say little about government secrecy or public access. In contrast, the 1987 Philippine Constitution is replete with provisions on government transparency, accountability and disclosure of information. This is a reaction to our years under martial rule when the workings of government were veiled in secrecy…
…A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified presumption in favor of the Presidential communications privilege. …U.S. v. Nixon, as well as the other related Nixon cases … as well as subsequent cases, all recognize that there is a presumptive privilege in favor of Presidential communications. The Almonte case, quoted U.S. v. Nixon and recognized a presumption in favor of confidentiality of Presidential communications.
The statement in Senate v. Ermita that the “extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure” must therefore be read to mean that there is a general disfavor of government privileges …especially considering the bias of the 1987 Philippine Constitution towards full public disclosure and transparency in government. In fine, Senate v. Ermita recognized the Presidential communications privilege in U.S. v. Nixon and the qualified presumptive status that the U.S. High Court gave that privilege…
Throughout its history — beginning with its use in 1792 by U.S. President George Washington to withhold information from a committee of Congress investigating a military expedition headed by General Arthur St. Clair against Native Americans — executive privilege has never justified the concealment of a wrongdoing… the first U.S. President, Washington, well understood the crucial role he would play in setting precedents, and so he said that he “devoutly wished on my part that these precedents may be fixed in true principles.” (emphasis supplied) President Washington established that he had the right to withhold information if disclosure would injure the public, but he did not believe that it was appropriate to withhold embarrassing or politically damaging information.
Two centuries thence, the principle that executive privilege cannot hide a wrongdoing remains unchanged.
…Article VI, Section 21 of the 1987 Constitution provides for the power of the legislature to conduct inquiries in aid of legislation. It explicitly provides respect for the constitutional rights of persons appearing in such inquiries. Officials appearing in legislative inquiries in representation of coequal branches of government carry with them not only the protective cover of their individual rights, but also the shield of their prerogatives — including executive privilege — flowing from the power of the branch they represent. These powers of the branches of government are independent, but they have been fashioned to work interdependently. When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole.
It will take some time for legal scholars to digest the Supreme Court’s decision but some views have begun to emerge from lawyers and non-lawyers alike (see Brown SEO, and The Philippine Experience and Dissenting Opinion). Not being a lawyer, I’m having to read and reread the decisions. But I do find Philippine Commentary’s argument convincing: The Fallacious Heart of Neri v. Senate is a False Distinction About the Powers of Legislation and Oversight.
But then, as I’ve said before, I subscribe to Woodrow Wilson’s view that Congress’ oversight power is actually more important than its law-making functions.
Read, too, what smoke has to say.
As for lawyers, I asked Atty. Edwin Lacierda, who teaches constitutional law, what his initial thoughts were and this is what he said:
It’s a really bad decision. It pays lip service to the doctrines laid down in Ermita and expands executive privilege to the detriment of legislative inquiry and right to public information.
What is awful with the decision is that the majority took as gospel truth the claim to executive privilege. This ran counter to the actual oral arguments where Atty. Bautista could not even specify how diplomatic relations with China would be damaged. Parang hindi nakikinig… sa oral arguments. The explanation of Bote was pathetic… If you go to the transcripts of the oral arguments, you will find Bote wanting and was demolished by the questions and arguments of Carpio, Puno et al.
In his blog, The Warrior Lawyer opines,
Of course, CJ Puno did not have the numbers.
This will allow Secretary Neri, and Malacanang, to sleep better at night as, unless the Court reverses itself upon motion by the losing respondents (an extremely remote possibility),Neri and members of the President’s official family now have the full weight of the Supreme Court behind their refusal to testify at future Senate hearings. Even if they appear, they will not provide the answers the Senate and the people are looking for and simply hide behind the skirts of executive privilege. Neri was a big fish that got away, leaving Jun Lozada and party high and dry.
Unless the Senate has another “surprise witness” in the wings, its investigation into the ZTE scandal is bound to run out of steam.
In his blog, A Simple Life, using a chess analogy, suggests everyone should pack it up and go home:
Three weeks ago, the essential pieces for the end game — the black rooks (senators) were busy playing arrogant by rejecting the SC compromise, and the white rooks (Supreme Court justices) were simply choosing not to get into play right away by deferring their decision on Neri’s petition.
Yesterday, the white rooks made a decisive move that caught the black rooks by surprise, a blitzkrieg move that crippled the black rooks and rendered them irrelevant towards the end game.
Since the white rooks have now effectively flanked the white king (Arroyo administration), and since the white knights (military and police) are still strategically positioned at the center of the board, ably supporting the white queen (Pres. Arroyo), the game now appears to be winnable for the white pieces.
However, since the black pawns (Lozada, et al.) and the other black pieces (anti-Arroyo groups) are still in a relentless, but ineffective checking mode (coup attempts, calls for resignations, interfaith rallies, Masses “for truth”, Senate inquiries “in aid of grandstanding”, media offensives, etc.), the game could still end in a draw — due to perpetual checking.
The black pieces should now concede to the futility of a perpetual check. It could go on forever, but it could lead to nowhere. We all should accept a mandated draw. Nobody won. We all lost somehow. The ZTE-NBN game is over.
So here we have two perspectives essentially in agreement on one thing: that the Senate hearings have been so seriously undercut as to be useless, though Warrior Lawyer thinks another witness could give the hearings a second wind while A Simple Life thinks it’s game over, folks.
But could it be that all it is, is yet another stalemate: too soon to tell if the stalemate is permanent, because no new fronts can open up? Not that all previous fronts haven’t resulted in a stalemate. They have.
Last August, Randy David, in Hello Garci and Philippine democracy , observed:
Both the generals and the Comelec officials have dared their accusers to bring them to court. They know, and everyone knows, that you need solid evidence for this — the kind of evidence that precisely only an authorized and empowered investigative body can put together. But whom should we turn to for this? The National Bureau of Investigation under the Department of Justice headed by Secretary Raul Gonzalez? The Philippine National Police under the Department of Interior and Local Government headed by Secretary Ronaldo Puno?
No one trusts the independence of these government agencies, particularly when it involves Ms Arroyo. Together, Secretary Gonzalez and Secretary Puno have done more than any of their predecessors to undermine the autonomy and efficiency of the investigative and prosecutorial offices under them. This is the crux of our present institutional crisis. The imperatives of regime survival have assumed a higher priority over the integrity of our institutional system. The outcome of this has been the corruption of institutions. In turn, the weakening of our legal and administrative institutions has encouraged the politicization of almost all issues. This is what eventually turns the public against politics itself, paving the way for a government devoid of politics — a dictatorship.
What accounts for the Palace being able to hold the line?
The public insistence on constitutionality, when confronted by an unconstitutionally-inclined regime, requires those who oppose it to be in the situation of being in a boxing ring but fighting with one hand tied behind one’s back.
All the while duking it out with an opponent who is not only fighting with both hands, but who’s concealed horseshoes in both gloves. I explored this to some extent in A limited and limiting consensus last December.
I am continuously astounded by those who insist there’s no need to worry, because the present isn’t an exact duplicate of the past. Since Marcos isn’t being aped, the orangutangs in power must neither be Marcosian or up to Marcos’s tricks.
It is like saying, Marcos mugged democracy. Today, no one is bruised and bleeding, no one’s being mugged; everyone is walking around (within limits, but each limit is perfectly legal even if unprecedented!); therefore, there must be no mugging of democracy and if there’s no actual mugging, there’s no criminal, either. It ignores the changing nature of crime -and criminals. Why engage in mugging if you’ve perfected white collar crime?
It’s a perfect trap: if it doesn’t exactly act like Marcos, it can’t be a danger on par with that Marcos presented in the past; but even so: what is the alternative? The ultimate trump card. It justified the original sin -stealing the election in 2004 was excused as par for the course because it was preferable, anyway, to risking the defeat of the incumbent- and excuses every continuing crime on the basis of “I will wait ’till 2010!” And if, as I personally believe, 2010 finds her still in the saddle?
Well, that old trump card yet again: “Yes, but… who will replace her anyway?”
From my computer’s handy-dandy dictionary, comes what this perfect trap resembles:
Möbius strip /’mœ-be-as ‘strip/
a surface with one continuous side formed by joining the ends of a rectangular strip after twisting one end through 180°.
Mon Casiple says the Supreme Court passed the buck -to the people:
The Supreme court decision further burdened the people with the responsibility of exercising sovereign direct democratic action in settling the political crisis. All the other power institutions have failed or are failing in enforcing the majority people’s will expressed time and again in surveys, street actions, and other fora of direct democracy.
People power is on the march but it will have to spread and broaden among the people even as it develops its leaders and constituency. It will not be a simple rally in EDSA or Makati but more of the same mobilization process reminiscent of the struggle against the Marcos dictatorship.
Given the required time for mobilization of the people, we are facing the real possibility of an extended political crisis in the coming months and years. The 2010 elections–far from a benign and normal democratic exercise–may be held within the context of tumultuous constitutional or extra-constitutional challenges. This may include attempts to force a constitutional change process designed to extend the power of the President, electoral machinations to have a pro-GMA presidential successor, desperate opposition moves to unseat the president, and a general political polarization.
It really depends, I suppose, on how serious one thinks the threat is, and whether the threat can be forestalled by playing for time, or playing to win. The Palace wants everyone to think that the country wins by playing for time; I think that the country loses if it plays for time, because the Palace is playing to win -and win big. But I also believe that most people want to think that the Palace wouldn’t -or won’t, or can’t- extend the game past the time limit.
Some people I talk to think that the minimum goal has already been met: that the President can’t stay in office past 2010. My response is if you believe that, well and good -then pack it up, right now, and hold your peace henceforth. the thing is, I can’t pack it up, because I’m personally convinced that the moment there’s a lull in the fighting, the trumpets will sound in the Palace and they will go on the offensive.
And part of me has the sinking feeling that those who claim they would be first in line the moment the President shows any inclination to stay on, won’t be hastening to the front.
Instead, they will shrug, and say…
“Well, she has a point. Who will replace her, anyway?”
A perfect trap. And a color of constitutionality is preserved throughout!
But then the color of constitutionality might be the only alternative for those unwilling to look down into the abyss.
A satirical look at the decision, courtesy of Uniffors.
Or, as Ricelander’s Blog puts it, satirically, too, it was a win-win:
Two souls are at stake, his and his President’s. He tells the truth, he damns his boss. He tells a lie, he damns his own. He can’t be too selfish taking care only of himself. His boss is such a nice woman.
How do you solve this dilemma, economist-style?
Well, throw the problem to an institution. An institution has no problem about souls. The Supreme Court is an institution; it has no soul… I mean, like that supposedly humans have. Perfect shield. He answers no question, he tells no lie, he tells no truth. Two souls saved - at no cost.
Speaking of souls, and so that I might as well close this on a more optimistic note, here is, first of all, a letter of endorsement from the Jesuit Provincial, Fr. Huang:Letter endorsing Guidelines, 3-25-08, final version.pdf
The letter serves as an introduction to the following, which makes for instructive reading:SJSA Commission Guidelines for Communal Discernment and Action.pdf I can say that it is an objective document that is worthy of widespread disseminationand consideration. Consider, for example, the following:
“How does one address the GMA problem?”
d. Call on GMA to resign. There are individuals and groups who have been calling for President Arroyo’s resignation since 2005 and continue to hold that position as a matter of principle. At that time, the CBCP itself recognized the call for the President’s resignation, as well as for a “Truth Commission” and impeachment, as legitimate options under the guiding principles of accountability, constitutionality, non-violence and effective governance. While the bishops did not call on President Arroyo to step down, they asked her to discern “to what extent she might have contributed to the erosion of effective governance and whether the erosion is so severe as to be irreversible.” Therefore, those who in conscience have made a decision that the President should not remain in office deserve respect. Their call for her to resign voluntarily is one of the options provided for in the Constitution. However, it also needs to be pointed out that while this position is one of principled moral conviction, it ceases to be a real political option if GMA remains resolute that she will not resign voluntarily.
e. Cabinet declaration of incapacity of the President. The Constitution provides that a majority of Cabinet members can declare in writing to the Senate President and the House Speaker that “the President is unable to discharge the powers and duties of his [her] office” (Article VII, Section 11). This is a constitutional way of removing a President who is seen to be physically or mentally incapacitated, but the meaning of this provision may be interpreted more broadly. This is one scenario for an “internal or Palace coup” within the GMA regime. But such decisions on regime change tend to be elitist, as they are dependent on so few people. This declaration can be challenged, however, by the President, in which case Congress may confirm the Cabinet decision by a two-thirds vote of the two houses of Congress voting separately. Note that this requirement is even more stringent than the one-third percentage required for the House of Representatives to send an impeachment complaint to the Senate for trial.
f. Oust GMA. When faced with the President’s refusal to resign voluntarily, those who are willing to push the demand for her to step down to the point of employing even extra-constitutional means must be reminded that democratic institutions may be harmed in the long-term, especially if a political vacuum is created for groups with an anti-democratic, adventurist or power-grabbing agenda to try to seize power and hold on to it indefinitely.
g. People Power. People power is a precious legacy from the struggle against the dictatorship and the restoration of democracy in the Philippines. EDSA I was the culmination of a long process of political education, organization and mobilization throughout the martial law years and especially during the nearly three years after the assassination of former Senator Benigno Aquino. Active nonviolence was a defining characteristic of EDSA People Power. It is enshrined in the Constitution, which values initiatives from below as a way of harnessing the direct participation of the people in politics and governance. In its current usage, however, it is problematic because it is often equated with popular insurrection and takeover as a method of regime change. This creates a dynamic where crisis situations continue to be resolved through extra-constitutional means which are not predictable, weaken democratic institutions and install leaders with questionable mandates. Thus an endless series of EDSA’s spells serious instability.
h. Snap elections. Any call for “snap elections” would be extra-constitutional, since there is no such provision in the present charter. What the Constitution provides for is the holding of “special elections,” should vacancies arise in the offices of both the President and the Vice President. Therefore, those who are advocating this option presume that both the President and Vice President will step down or will be made to do so. Moreover, special elections before 2010 without meaningful preparation and electoral reforms will only lead to a contest between those already entrenched in power and thus will not produce genuine change.
i. Military intervention. Some have called for an interventionist role of the military to effect regime change. While recognizing that there are reformminded members of the military who have a genuine concern for the good of the country, military intervention in whatever form must be eschewed, especially in the present context of a weak Philippine democracy. Allowing the military to become the arbiter to resolve political conflicts and stalemates undermines civilian supremacy, long-term democratization and political stability.
j. An Independent Counsel. Some have called for an independent institution with the credibility and capacity for investigating and prosecuting government corruption at the highest levels. This proposal has been made because some see the Senate investigations as partisan, while the Ombudsman is overloaded with corruption cases and is perceived as partial to the government in power, given its recent track record. For this option to prosper, however, three difficult issues need to be addressed: (i) creating such a body through a law approved by Congress, (ii) defining the scope of its power and responsibilities, especially in relation to the Ombudsman, and (iii) giving it real autonomy, particularly from the President, who would be the appointing official.
k. Impeachment. This mechanism is provided for by the Constitution to exact accountability from the President. It is also a way by which allegations can be verified, thus giving the President a fair hearing and an opportunity to defend herself. However, impeachment will only work if people are willing to participate actively in pushing for and making sure that this process is effective (e.g. sustained lobbying, pressuring their representatives in Congress to prioritize the search for truth and accountability). Thus, it can provide excellent opportunities for active political participation, especially for citizens outside Metro Manila.
And its nine-point action agenda (along with the whole document), merits our attention, too:
7. It is precisely during times of great upheavals and crises that the call to hope becomes more urgent. Desperation and cynicism cannot be allowed to eat up people’s inner resources. To move forward from this crisis means identifying and pursuing specific forms of action, such as: (a) joining circles of ongoing reflection and discernment, and efforts at political education and organization, including training in anti-corruption advocacy (Ehem) and active nonviolence; (b) supporting institutional efforts to get to the truth and creating a broader climate of truth-telling which encourages and protects whistleblowers; (c) joining activities that promote accountability; (d) articulating long-term ideals and policies for national political reform; and (e) establishing sectoral and multi-sectoral organizations and networks to promote dialogue and concerted action.
Concretely, eight action areas fall within the range of options which are consistent with the principles identified above, especially the need to build strong democratic institutions and promote engaged citizenship for socio-political reform:
a. Support for the ongoing Senate investigation of the ZTE-NBN case not only to bring out the whole truth on matters of public interest but also to strengthen the institutional system of checks and balances that seek to prevent the abuse of power.
b. Creation of a credible Independent Counsel, in order to ferret out the veracity of various allegations and promote accountability within the judicial system, in which unfortunately many of the official institutions are seen as severely compromised politically. Thus there is a need for an institutional venue and mechanism that will be viewed as autonomous of the government currently in power and free of the antics of traditional politicians.
c. Initiation of a genuine impeachment process, particularly by pressuring Representatives in the House to hold the President accountable for serious violations of public trust if there are sufficient bases for doing so.
d. Pursuit of reforms towards government transparency in all its transactions, especially in processes like procurement, decisions on loans, development projects, social reforms, and on issues such as mining, energy and land use that have a profound impact on poor communities and the environment. There is a need to ensure rigorous implementation of laws and policies, the institutionalization of a culture of social accountability, free access to information, and the enhanced participation of civil society in governance decisions at all levels.
e. Promotion of electoral reforms to ensure the conduct of clean, honest, and credible elections in 2010, including the revamp of the Comelec, beginning with the appointment and confirmation of commissioners of unquestioned integrity and competence; the modernization of the electoral system; the eradication of warlordism; the monitoring of campaign finance and expenditure; and the continuing political education of voters.
f. Search for worthy candidates and potential leaders, parties/coalitions and platforms for 2010, through positive preparations, planning and strategizing. This would mean clarifying political values and development priorities, candidate selection and recruitment, resource mobilization, and political organizing.
g. Organization of and support for basic sectors, to enable them to have a real say in democratic processes and to address the urgent needs of economic development and social justice.
h. Engagement of the youth in current issues, through political education, organization and mobilization for democratic institution-building, lobbying for transparency and accountability, policy reform, and involvement in electoral politics.
8. These specific and concrete calls for action are not isolated and discrete but are precisely interconnected in a framework that seeks to promote truth, accountability and reform. They address gross injustices in the country through active citizen participation that will support and be supported by efforts at political education, organization, mobilization and network-building in order to strengthen and transform democratic political institutions under the Constitution.
Responding to the Call for Communal Discernment, Conversion and Action
9. We offer these guidelines as a response to the call of our bishops for “circles of discernment” to “pray together, reason together, decide together, act together.” We trust that these reflections help clarify the context, principles and options for people — especially the youth — who seek to respond in action to the current crisis rather than succumb to the temptations of despair. For as Pope Benedict XVI has said, “All serious and upright human conduct is hope in action” (Spe Salvi 35).