A perfect trap

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

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

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

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

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


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

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

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


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

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

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


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

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


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

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


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

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

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

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

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

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

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

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


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


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


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

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

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

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

Read, too, what smoke has to say.

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

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

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

In his blog, The Warrior Lawyer opines,

Of course, CJ Puno did not have the numbers.

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


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

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

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

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


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Möbius strip /’mœ-be-as ‘strip/



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

Oh well.

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

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

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

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

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

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

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

Instead, they will shrug, and say…

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

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

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

A satirical look at the decision, courtesy of Uniffors.

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


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

How do you solve this dilemma, economist-style?


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

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

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

“How does one address the GMA problem?”


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


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


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


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


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


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

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


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

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

Action Points


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


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

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


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

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


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

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


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

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


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

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


Responding to the Call for Communal Discernment, Conversion and Action


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


Manuel L. Quezon III.

193 thoughts on “A perfect trap

  1. i have to disagree with kuya Manuel. Arroyo will “step down” after 2010, but will become RP’s Putin.

    it’s a more elegant solution for maam.

  2. john marzan,

    Sorry, you are dead wrong. GMA will never be a Putin, that is, will never have the character of the Russian strongman. Heck, Putin is beloved by the Russian people for all his autocratic tendencies. Why? Because he loves his country as well. That can never be said of GMA.

  3. Judicial history repeats itself. This is Javellana Part II. Coincidentally, there were also six dissenters in Javellana namely CJ Concepcion and Justices Makalintal, Zaldivar, Castro, Fernando and Teehankee.

  4. with all due respect to cj puno, i believe his action of publicly criticizing the neri decision is injudicious, if not totally reprehensible. he already has written a 100-page or so dissenting opinion in which his views are made part of public record for all the world to see. airing his criticism on t.v. and other media outlets is, i think, a faux pas that runs counter to traditions of the best judicial temperament. it is a blatant display of the political morass in which courts, including the highest court, has been perceived to have sunk.

    the supreme court is a collegial body and there’s no reason to doubt that cj puno is aware of it. the prevailing decision becomes the official decision of the whole body and must be accepted and respected as such by all, including the dissenting justices.

    by going the rounds of the media circuits to put down the decision, the good chief justice, wittingly or unwittingly, undermines the role of the judiciary in the democratic scheme, reducing it to no better than the contentious senate in its quest for political adulation.
    i believe that coming from the chief justice, such media appearances to purvey his critical views are fodder for the anti-gma crowd and further exacerbate, rather than ease, disunity among the people.

    i really miss the days when judges were judges and politicians were politicians. in this sense, i concur with mlq3’s views on “delicadeza”.

  5. MLQ3,
    Regarding oversight here is an analogy that might help us all analyse this.

    Think of Congress as NASA and Laws as the Space Shuttle. Before the first one flies, NASA and its scientists do a lot of research and development designing and building the thing. After the maiden voyage, what do they do? Well more research and development PLUS they must review the performance of the first flight. How did their design and engineering do in the real world of space flight. Then they revise their drawings, materials, flight procedures, etc.

    Now when Congress makes a new law, it conducts hearings “in aid of [new] legislation”( R&D). Here the Court says the Congress has compulsory process to make sure it can get the info it needs to make legislation. After the law is enacted and the Executive implements it (the maiden voyage), the Congress must exercise OVERSIGHT to find out how the Executive implement the law, and what changes need to be made. This is equivalent to redesign of the space ship.

    It is therefore inconceivable that oversight information does not come with process to enforce the acquisition of it.

    Engineering is the making and remaking of designs and hardware.

    Legislation is making AND remaking the laws.

    But what confuses the issue, I think, is the SECONDARY purpose of oversight: to uncover malfeasance, wrong doing, etc. in the government. I think at most we should say that such an oversight hearing would produce EVIDENCE leading to a finding of probable cause by the Ombudsman for criminal proceedings, OR as in the case of investigating possible wrong doing by the President (or any Justice of the SC!), evidence for an IMPEACHMENT case.

    It would have been historic if the SCORP had extended the SCOTUS jurisprudence in USA v. Nixon by ruling that just as the Executive cannot use E.P. to deny evidence in a criminal trial by the Judiciary, so too E.P. cannot be used to deny the Legislature’s right to evidence in a possible case of impeachment, over which the Supreme Court would have NO jurisdiction whatsoever, that sole and exclusive power of PUBLIC ACCOUNTABILITY belongs to Congress, and Congress alone.

  6. You and Woodrow Wilson are absolutely right! Oversight IS more important than inquiries in aid of “new” legislation, because how many “new” laws is the Congress really making, compared to how many new laws it must watch over and revise to make sure the whole thing “flies”?

    Even NASA would agree with you both. For as they say, in any complex process (like space flight engineering or law making) it’s the last one percent of fixing the thing where 99% of the problem actually lies.

  7. I was also having saom bad feelings about what CJ Puno is doing. And I cannot understand wher it was coming from until I read your comment above.

    I was even thinking earlier that US Supreme Court has decided so many controversial and bitterly debated and I dont see their cheif justice dont do that.

    I think this started with Panganiban.

    I hope none of the 9 justicess will be tempted to to rebutt Puno on Media or TV. Otherwise we will have another debate on TV.

  8. Bencard,
    You don’t seem to mind it though that a low level nobody like Midas Marquez appears in all the early morning tv and radio talk shows ballyhooing the administration justices line. He has no right to speak for the Justices on their ruling. Yet there he is talking like Michael the Archangel.

    Besides even the Chief Justice has Freedom of Speech last I checked. That is an institution too, you know. Simple lang di ba? : )

  9. I think impeachment should be resuscitated or else we are really in for a Dictatorship of the Judiciariat.

    I am convinced several of the Justices have been on the take in big but very low profile cases. That 10 million peso “gift” to a justice that Newsbreak was investigating is likely to be just the tip of the iceberg (it had to do with the decision of that justice in Naia 3 case if I recall correctly). There are fifteen impeachable officers in there that the media mostly ignore for the most part. And there is no one year clock running on their possible impeachment for graft and corruption.

    It’s really Congress best weapon for holding the 31 impeachable officers to Public Account.

    Now what do people say about rights and powers: use or lose it right?

  10. “With the victory of Ronald Reagan to the White House in 1980, the mood in the country and on the high Court turned increasingly conservative. In this new era, Nixon-appointed Chief Justice Warren Burger stepped up his public statements supporting the rights of crime victims. In February 1981, the Chief Justice spoke before the American Bar Association and criticized the judicial system for providing “massive safeguards for accused persons” while failing to provide “elementary protection for its decent, law abiding citizens.” With this new “get-tough-on- crime” mood, Justice Marshall felt that the limited protection of criminal rights would be lost in the trample for punishment. Breaking ranks with his Brethren, Marshall spoke out in this highly publicized May 8, 1981 speech before the Second Circuit Judicial Conference in what struck many as a direct response to Burger and the conservatives: next entry

    The heart of CJ Puno’s argument:
    “these questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the information coming from a reply to these questions.”

    He said the three questions were not covered by executive privilege since the Senate needs the answers to these questions so that it can enact laws to remedy flaws in the government’s procurement system.

    “In the absence of the information they seek, the Senate committees’ function of intelligently enacting laws to remedy what is called a ‘dysfunctional procurement system of the government’ and to possibly include ‘executive agreements for Senate concurrence’ to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act, cannot but be seriously impaired,” wrote Puno.

    Justices of the SC keeping quiet and minding their own business was never part of the protocol of separate but equal branches of government.

  11. “But when we accepted the judicial mantle, we yielded our right to advocate publicly our favored solutions for society’s problems. The tools for solving these problems are in the hands of the other branches of government because that is where the Constitution has placed them. That is also where we should leave them. I therefore urge that you politely disregard any suggestion that you give up the robe for the sword.” Thurgood Marshall



    Kanutos (those who are enjoying their standard of living in kanuto land) have this man to thank for their present status.

  12. CJ Puno is reducing the Supreme Court into a group of names. His lobbying is a message that the Supreme court decision — the collective decision — is to be ignored and that personality-politics should be the rule of the land.

  13. Side-topic :

    This site has been suspended while Network Solutions is investigating whether the site’s content is in violation of the Network Solutions Acceptable Use Policy. Network Solutions has received a number of complaints regarding this site that are under investigation. For more information about Network Solutions Acceptable Use Policy visit the following URL: http://www.networksolutions.com/legal/aup.jsp

    Hosted by Network Solutions.

  14. Fitna the Movie : from EuropeNews

    The film isn’t live yet. When it goes live, it is recommended to download it to the hard drive immediately. Islamists can be expected to attack the web site with every means at their disposal, and for sure someone will try to abuse some obscure law to get it legally banned, too.

    As anyone watching the URL has notice, it’s gone dead. Not even the preview image was deemed acceptable to display.

    The URL is

  15. djb, when the senate is transformed into a giant police interrogation room where the inquisitors are given the power to abuse, browbeat, mislead, cajole or intimidate with threat of perjury and/or contempt, the “witnesses” not for purposes of a contemplated new legislation, or in exercise of “oversight” function, but to look for a “smoking gun” for an alleged crime and nail a particular person as the culprit, that, i think, is a grave abuse of legislative power that finds no justification in the constitution.

    it’s not a legislative function to find probable cause of crime, much less of impeachment where the senators would eventually sit as “impartial” judges.

    as to cj puno, you’re right, he has freedom of speech just like any other ordinary individual. but he is no ordinary individual and, as far as that is concerned, he is the best judge (pun intended) of his proper role in society. btw, midas marquez has every right to comment on the decision, as you and i and everyone in this blog, and criticize fairly the judges who rendered it.

  16. “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed and would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more. They have the same passions for party, for power, and the privilege of their corps” – Thomas Jefferson

    Look at the 9 who voted to to expand the coverage of executive privilege to cover criminal activity. In any decent society at least four of those jerks would have had the delicadeza to recuse themselves.

  17. I myself am surprised the Chief Justice has gone beyond his dissenting opinion and made the rounds of the media outlets.

    mukhang hindi media shy si cj puno. his move indeed is unprecedented. but how will this affect the SC, as a collegial body, known for its members’ reservedness in the past?

    anyway, it’s a welcome move for everyone here. there’s our new hero. cj puno for president! (i think someone already proposed it here).


    DAY 27

  18. the way i see it, the neri ruling defined, not only the parameters of the president’s executive privilege, but also the investigative powers of the legislature. the constitution limits the exercise of such powers by specifying the purposes for which it can be pursued, i.e., “in aid of legislation”, and in pursuance of its “oversight” functions.

    prior to the court’s pronouncements, some senators operate on the mistaken belief that their powers are all-encompassing, evidently leading to abuses that enable it to conduct veritable witch hunts and fishing expeditions some of which destroyed a lot of reputation and besmirched the names of innocent citizens.

    it is hoped that, with this new precedent-setting decision, we can expect a little more responsibility and civility among our legislators in the conduct of investigations and public hearings.

  19. CJ is not a presidentiable — lack of leadership skills. Evidence : failure to convince 7 of 14 to agree with him.

  20. 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. – mlq3

    Yes. But if you look at it from a BROADER perspective, today is no different from the past. There is the same stupidity in Government and the same stupidity amongst the governed.

    I see the only difference as more of an increase in apathy amongst the governed towards the petty politics that Old Farts seem more inclined to focus on.

    Let’s not forget, we’re talking about the generation of Pinoys that SQUANDERED the poster-boy status the Philippines enjoyed back in the 1950’s). Why should we be guided by the ideas of an age group under whose leadership the Philippines withered into a pathetically flacid excuse for a nation.

    I see this growing APATHY TOWARDS POLITICS as a good thing. Because it is a progressive breaking of that 50-year-old umbilical chord that ties people’s perceived prospects for personal improvement to the outcomes of political jostlings.

    Mag-trabaho na lang tayo!

    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. – mlq3

    Good luck organising the next street “revolution” then!

    – 😀

  21. That 10 million peso “gift” to a justice that Newsbreak was investigating is likely to be just the tip of the iceberg (it had to do with the decision of that justice in Naia 3 case if I recall correctly). – DJB Rizalist

    But who will do the investigating officially? Razon’s police? The NBI? The Ombudsman? Raul Gonzalez?

    Hah… Don’t count on it. That would be like asking Gloria to confess to her participation in Hello Garci dagdag bawas operations.

  22. Bencard,
    The Ombudsman disagrees with you. Last week they ordered that all Senate transcripts be taken judicial notice of by them and have subpoenaed them, as possible evidence in a criminal proceeding in the proper judicial forum.

    What I have said is that a secondary purpose of oversight is uncovering evidence that could be used to establish probable cause for either criminal proceedings or impeachment proceedings. The primary purpose is still legislative. This is independent of the MOTIVES of the Senate investigators, as CJ Puno points out, which are beyond the court’s powers of judicial review.

    Surely you cannot ignore the historical fact, pleasing to common sense, that often the Congresses of many countries have indeed uncovered such evidence of wrongdoing in the normal course of legislative oversight investigations that then proceeded to either criminal proceedings in the judiciary or impeachment.

    US Grand Juries are often impanelled as a result of House and Senate hearings.

    But I want to emphasize the matter of impeachment and why it is proper for the Senate to investigate possible impeachable offenses.

    CJ Puno makes the point that the power of the President to contract foreign loans for projects like ZTE is SHARED with the Central Bank. This power is not exclusive to her.

    But he does not in turn mention that the POWER of impeachment is NOT SHARED by Congress with any other government body. It is their SOLE and EXCLUSIVE power (those are the words of the Constitution.)

    I think this was the only omission in the whole matter that CJ Puno made. If he had considered this fact, his arguments would have attained the closure of a proven mathematical proposition, because he already controverts your assertion Congress is not responsible for uncovering evidence that could lead to judicial proceedings.

    There are no judicial proceedings available against impeachable offenses outside of the Congress. Any purported evidence uncovered by the Senate would still have to be adjudged by the House for relevance and materiality.

    But if we accept your position then the “functional impairment” of the Congress to exercise its SOLE and EXCLUSIVE power to hold impeachable officers to account would be compleat.

  23. Bencard,
    On a lighter note, you may wish to consider the probable FACT that however awful the browbeating Executive officials get from the Senate, it is nothing compared to the browbeating and headbashing and P-i-m tonguelashing they regularly get from their own capotita di tutti capi!. Simple lang di ba? : )

  24. Nick Nichols,

    If GMA be Julius Caesar,
    noble and not ambitious,
    as thou declaim,
    Then indeed are we fled to brutish beasts
    and reason long ago departed.

  25. DJB: You talk of US Grand Juries as if the Philippine congress has taken the time to make the concept law.

    CJ Puno, at this particular moment in time, failed as a leader. Despite the correctness of his position based on your view of things, he could not convince 7 of his own colleagues to his point of view. The media-blitz is him doing the sore-loser whiney whiney.

  26. ‘CJ Puno, at this particular moment in time, failed as a leader. Despite the correctness of his position based on your view of things, he could not convince 7 of his own colleagues to his point of view. The media-blitz is him doing the sore-loser whiney whiney.”

    doing a marquez?

  27. rego:

    aww rego, you sad that CJ Puno didn’t toe the party line? boo-hoo for you.


    agreed. while the Chief Justice is indeed a citizen with the basic right to freedom of expression, he is also the Chief Justice of the highest court in this country. His dissenting opinion should’ve been enough. the sound bytes were totally inappropriate. i think one of the problems here is that the media is sooo hungry for a story nowadays. i was at conference yesterday morning where BSP Deputy Governor Espenilla was speaking and the minute after the proceedings adjourned, a gaggle of four journalists and a cameraman hounded the guy all throughout lunch. I don’t know what they managed to dig up, but man, these guys are relentless. So, it wouldn’t be hard I think, for anyone to succumb to “hamming it up” for the cameras if a journalist pressed hard enough.

  28. UP n student,

    CJ Puno, at this particular moment in time, failed as a leader. Despite the correctness of his position based on your view of things, he could not convince 7 of his own colleagues to his point of view. The media-blitz is him doing the sore-loser whiney whiney.

    would you rather have the supreme court as his rubber stamp?

    “whiney whiney” <– better than ‘doing a marquez’

  29. UPn Student,
    The CJ is primus inter pares in a collegial body. He is not a “leader” in any sense of the word and I certainly would not want him entering politics, though that would be his right.

    For you to judge his leadership qualities as President, by his performance as Chief Justice, is a tad unfair as he has rejected every call for him to head that silly “Transition Junta”.

    Moreover, even the Supreme Court admits that this decision is NOT final and executory. I’ve just finished reading his Dissenting Opinion. It will almost surely become the fount of the Senate’s Motion for Reconsideration.

    So you must yourself suspend judgment on his effect upon the other Justices. Of the nine, two merely “concurred in the result” but not in the reasoning. If they change their mind for ANY reason, even political pressure, which perhaps played a role also in their first go at the issue at bar, then the Decision could be reversed 8-7.

    I repeat, the decision is not Final and Executory. With even admin congressmen warning of an emboldened President and a constitutional crisis, there is no guarantee how Neri will end up.

    Lookit, someone mentioned Javellana vs. Executive Secretary yesterday. J. Castro said about it that “A Supreme Court decision is a prediction of what the Law will do.”

    Well, if you read Puno’s decision carefully, you will realize he is describing how the United States proceeded from the same situation we are in now.

    I daresay that is how we are likely to go to, in the long run. Maybe not now, but the Powers Congress to make and remake laws are indivisible. Oversight is legislation and legislation is oversight.

    What leadership capabilities Puno has can only be deemed to be “intellectual” because that is all the Supreme Court is…a group blog of really brainy people. (We are all in the Comment Thread and the Justices ARE reading the blogs, believe it or not. Or at least some have been visiting regularly from the SC website according to my logs. I assume this blog is heavily visited too.)

    But his dissenting opinion is probably an accurate picture of what Philippine jurisprudence on the matter is gonna look like eventually.

    The Law really is like science and mathematics. It is the science and mathematics of the English Language applied to social justice. There is a logic and reality to the way the thing evolved in America which we have ended up adopting, eventually because there is nothing “colonial” about science, mathematics or Justice.

    I predict the decision will be OVERTURNED on appeal. You heard it here first.

  30. upn, you assume the cj could have used reason and logic to change the minds of those who’d received presidential orders, and who’d been appointed precisely on the basis of their higher loyalty to the appointing power than to their profession.

  31. mlq3,

    There is every reason to be suspicious of political motives. But may I suggest perhaps a more powerful way of grasping the Law so it empowers us and not just Justices of the Supreme Court.

    I think we must come to believe that the Law itself, and especially the Democracy over which it rules, contains a certain logical and philosophical force that is unlike MORALITY and more like ENGINEERING.

    Sooner or later, “wrong” decisions have effects in the real world that become obviously unacceptable even to those who initially support them.

    This eventual condition is guaranteed as long as there is even a modicum of freedom of thought in any society.

    Liberty is like a gravitational force that eventually guides every reasonably well-ordered society along the paths that other similar societies have been channeled into by historical realities and social conditions.

    Thus all democracies look basically alike in the long run. Even France and America, supposedly so different, are nearly identical on the grand principles of Separation of Powers, individual liberty and human rights and all key aspects of Law and Jurisprudence.

    And of course Philippine Jurisprudence is different from American jurisprudence only because we drive a jeep they drive a Cadillac. But internal combustion physics is the same, just as all the SC decisions for the most part.

    In its century of existence SCORP is probably only about half a century behind SCOTUS in its judicial evolution. We have not yet evolved a jury system for example.

    But in the portions of the Judicial Mind that we have already grown, I daresay there is an almost compleat congruence.

    The Law is guided by a form of “natural selection” and survival of fittest memes!

    Otherwise it mutates, and dies either fascist, totalitarian or some other unfit system’s death.

    Thus there is a metaphysics to the progress of the Law, akin to the laws of evolution standing above biology and chemistry themselves.

    The Constitution is not a Bible to be interpreted by Judges.

    It is a chapter in the Book of Nature, just like Physics and Mathematics are, and its Author is THE Chief Justice, the Greatest Lawgiver of all.
    The Law

  32. At this point in time, CJ Puno’s decision is in the minority. “… gonna look like eventually” may mean that CJ Puno’s position needs a few more events to happen — new laws, maybe???? or maybe a future supreme court justice will cross-reference to what has transpired in Thailand, England, France, Syria or China — before his position becomes the decision of a future Philippine Supreme Court.

  33. [Neri v. Senate] is 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. – by Prof. Edwin Lacierda (per mlq3)

    The majority in Neri v. Senate, while pretending to sing paean to “the fundamental constitutional principles which underlie our tripartite system of government” has ultimately decided, invoking the Court’s so-called expanded certiorari jurisdiction under Section 1), Article VIII of the Constitution, to clip not just one particular checks-and-balances mechanism expressly committed by the Constitution to a co-equal branch but effectively emaciated the very core of the power of Congress, the power to make laws.

    Needless to state, when the Court proceeds to nullify an act of a co-equal branch, especially the most representative of the three branches, it should only do so when the unconstitutionality (or grave abuse of discretion) is shown to be so manifest as to leave no room for reasonable doubt because even a court of last resort must also confess the limits of its own powers. Therefore, whenever an act of Congress is rational it must be presumed to be regular and constitutional and the Court must respect the great range of legislative power or discretion whether in legislating or interpreting the constitution by leaving it unperturbed in the absence of moral certainty as to its infirmity. In like fashion, Congress should not by law interfere in the way the Court arrive at its decision or in the deliberation over its cases, or in the manner the Commander-in-chief for instance prosecutes a war against an enemy because one power or the other does not belong to it but to a co-equal branch.

    By force of this logic, there was no reason for the Court in Neri to unnecessarily try to import its own judgment at the very inception of legislative process or of initiating remedial legislation and waste its own time, when it could have easily conceded that on the hand the President is entitled to executive privilege (to withhold information requested by other branches of the government) by established constitutional doctrine and that on the other the Senate or its committees by express provision of the Constitution have the power of inquiry in aid of lawmaking (which includes the power to probe into government agencies to expose corruption).

    Considering however that Mr. Neri himself, without seasonably invoking the supposed lack of proper publication of the Senate rules, has already testified under oath before the joint Senate committees being offered a “bribe” of 200 million pesos, (“Chairman Abalos offered me 200 million for this,” Mr. Neri testified) involving the incurring of a foreign loan, it would have been logical to look in the Constitution for express exception or limitation not to the congressional power of inquiry but to the invocation of executive privilege. Section 21, Article XII (National Economy and Patrimony) provides such express limitation to the executive privilege of non-disclosure where it states: “Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.” (Italics mine.) Perforce executive privilege must give way to such a categorical mandate of disclosure in the plain language of the Constitution.

    Dismissing forthright the petition of Mr. Neri would have been the simple end of the matter since neither the President nor the Supreme Court is above the Constitution.

  34. The Three Part Machine that is being described in Neri vs. Senate has the Big Spinning Thing where the Small Spinning Thing should be in a helicopter design. It cannot fly and that will sooner or later become obvious. But keep your parachutes and passports handy!

  35. Tonio,
    I would agree with you if you also agree that Midas Marquez should not be defending the decision in the Media either. he is not a even a member of the court but they use him as an errand boy.

    Their decisions should also be enough, eh?

  36. DJB Rizalist,

    I think we must come to believe that the Law itself, and especially the Democracy over which it rules, contains a certain logical and philosophical force that is unlike MORALITY and more like ENGINEERING.

    of course. government is a man-man system.

  37. On principle, I agree that the Chief Justice should stay away from TV unless it is to discuss court procedure. Certainly not to defend a dissenting opinion if that is indeed what he did — I havent been watching TV (except for AI, of course). Let his assistant do that. At the same time, if Midas Marquez’s mug is on TV defending the majority decision, then that too is in bad taste. (Although it could be possible that Atty Marquez’s statement are edited to make it appear he is defending the majority decision.)

  38. Tonio,

    I’ve often criticized, disagreed with, and even ridiculed some of the written rulings of Puno and his public statements and speeches. I think the establishment of amparo and habeas data were misbegotten mutations whose deleterious effects will dwarf their dubious benefits. That remains to be seen. I could be wrong.

    But I’ve never questioned freely expressing their honest opinions about things. He was very decorous and straightforward in his description of his decision, which after all is a public document and is of his personal knowledge and competence to describe. Justice cannot be MUTE since it is already willingly BLIND.

    The Code of Judicial Ethics forbids participation in partisan political activity. Go bugger Davide and Panganiban why don’t you?

  39. DJB, Mindanaoan, the law just like any system, consists of both structure and code. The ‘structure’ consists the processes and rules while the ‘code’ directs the behavior of a given structure. This internal code within the system is what i previously mentioned as the code of ethics. ‘Morality’, or more precisely, ‘Ethics’, is an integral part of the system’s engineering.

    We may have similar legal structures as the United States or France, but our structures operate by a different code.

  40. cvj, an engineered system consists of goals, parts and relationships. there’s no `Ethics’ there.

  41. cvj, on second thought, ethics should constitute one of our goals, but it cannot be a ‘part’.

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