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Supremes' Folly
By mlq3 Posted in Daily Dose on March 28, 2008 266 Comments 29 min read
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Let’s begin with a quote from the Vice-President, not usually considered an authority on anything, but who knows his public pulse. In the news article Inquiries barred by SC ruling?, which focuses on the Palace’s emerging effort to limit public criticism by bringing up the possibility of the Supreme Court citing people by contempt (a dangerous road, considering even lawyers are incensed: can you imagine hundreds or even thousands all being jailed for contempt of court?), the Veep was quoted as saying:

 

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

 

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

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

 

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

 

The third element deserves a lengthy discussion.

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

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

 

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

 

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

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

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

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

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

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

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

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

smoke, in her blog, noticed this, too:

 

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

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

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

 

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

 

That all looks kinda circular to me.

A perfect trap!

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

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

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

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

 

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

This privilege, however, is not absolute.

 

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

 

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

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

 

The proposed compromise made a virtue of necessity.

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

Speaking of Cory Aquino, a beautiful passage in Scriptorium:

 

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

 

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

 

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

My column yesterday was Testimonial of a matriarch.


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  1. Dear Mr. Quezon,
    In adapting this article to your column in Inquirer today (March 31) you left out a portion. The 7th paragraph of your Inquirer column refers to “the portion above as the most objectionable part of the entire decision.” However, the “objectionable part”, which appears in this blog, is absent from the column.

  2. “There are those who believe that those who use the names of bishops and the church in vain should be excommunicated for the serious damage that they have caused.”Serge Remonde

  3. In the Philippines judicial tradition it continues to be the strains of the old Spanish Civil code versus Common Law.

    The issue of empirical history applied to laws. Judges can interpret the law as they see fit. Will Justice De Castro’s ruling stand the test of time? Not likely.

    The laws evolve to accommodate changes in societal values.

    Case in point the Watergate case:

    The free press in the person of the Washington Post – they railed against the windmills during those years. Nixon was on top of his game. His paranoia notwithstanding. The Democrats fucked themselves up badly. (Bernstein and Woodward aided by an FBI man on the inside – Deep Throat)

    The Whistle blower – John Dean
    The existence of tape recordings – Alexander Butterfield
    (All exposed during the hearings in the Senate.)

    A Democratic controlled Senate – Sam Ervin Chairman of the
    The Senate Select Committee to Investigate Campaign Practices –

    An activist judge in the person of Judge John Sirica – who went beyond the persons he convicted and pushed the envelope to break open the cover up.

    All three combined forced the Nixon presidency to appoint a special prosecutor under the Justice department to investigate the Nixon campaign practices in the 1972 election. His own Justice Secretary Mitchell was prosecuted.

    In the end Nixon contended that his executive power of privilege were akin to Louis XIV (Absolute). The SC struck him down.

    The beauty of common law tradition is that this SC resolution which might become the settled law at this time can later on be struck down by another court in another time.

    In the end even the U.S. SC ruled that pornography would be best determined by community standards.

  4. Abe, BenigO,

    About the story of the Mexican fisherman. I share the same philosophy. The problem is the stock market. Seriously, without these brokers and fund managers, we’d all (and I mean all) be working 5 hours a day, playing with our kids for the same amount of time and spending the rest working with our hobbies. This is a more productive life than the life most of us lead today.

  5. And there was the famous Oakes Test, the Measure of which the Limit to Rights and Freedom should be based..a Solomonic ruling if there is one. check it out..

  6. Who is there in the Senate who will defend the the idea of co-equal branches of government that has been seriously undermined by the SC decision. A serious constitutional crisis is fast arising and no one noticed. Who will push the envelope?

    The executive department is now declaring that all hearings in aid of legislation is suspect because of certain rules. They claim that all previous hearings are void. Does that include hearings in aid of budget legislation? Does it mean that they (Congress) cannot question the budgetary allocations for the payment of loans under ODA as this might infringe on the diplomatic and economic relations with the PRC?

    The BSP a public utility has just declared that it lost Php 80+ billion in defending the dollar from devaluing versus the peso.

    THE NFA is running a huge deficit of over Php 80 billion and the price of rice it imported has just doubled in price.

    What a country?

    http://www.blupete.com/Literature/Essays/BluePete/LawCom.htm

  7. Vic, transplanted to the Philippine setting, the Oakes Test is liable to mutate into a tool for suppression of freedom given the present lack of internal ethics within our institutions that will be tasked to implement such a test, and the seeming ineffectiveness of outside morality to discipline these institutions.

  8. cjv, the legal profession is the one responsible to make sure that the SC ruling and an accepted precedent, until somehow reverse in the future, should be adhered to, otherwise chaos will be the order of the day and the so-called rule of law is just nothing but lip service..

  9. vic, yeah unfortunately in the Philippines, the only thing going for ‘rule of law’ is the threat of chaos without it. Justice has long ago been taken out of the equation.

    My point about the Oakes Test is that you cannot just transplant it from Canada to the Philippines and assume that it will work as well. I can see its potential as a tool for the government’s impunity. Let’s not give them more rope with which to hang us with.

  10. scalia, i would agree it’s unfair to define the sc according to neri v. senate, only in that there still has to be a motion for reconsideration. after that, we will see the real numbers in the sc. and there will be those who will want to see how the sc votes in landmark cases to come.

    but do not underestimate how a single case can make or break an institution. there is a reason the legal profession looks back at javellana v. exec. sec. and shudders, to this day.

  11. maginoo, the judgment of the president when it came to her appointees would be different prior to 2005. the reason would be first of all, they were appointments made during more “normal” times, and the president’s constituency including the various constituencies she deemed it ok to consult or look into to get appointments, has changed. for example, justice azcuna was one of the aquino era veterans; justice carpio, identified with “the firm”: both dissented, and it’s logical that with cory and the firm being part of the president’s enemies’ list today, no future s.c. appointment would come from their ranks.

    so it’s not just which president appointed a s.c. justice, but when; it would make for an interesting study to compare the caliber of the justices marcos appointed pre 1973 and post 1973, for example.

  12. silent waters, then shoiuldnt it bea case of: who hides their vested interest,m and who is up front about it?

  13. Sabi ko na nga ba, Atenista si Benign0. — cvj

    Hahahahaha!

    We had this certain officemate before who was from Ateneo and our running commentary on him then was that he was so dense. Couldn’t get the drift most of the time. And we’d always resort to kidding him, “hay, naku palibhasa di ka taga-UP.”

  14. mlq3,

    “but do not underestimate how a single case can make or break an institution. there is a reason the legal profession looks back at javellana v. exec. sec. and shudders, to this day.”

    well i have to seriously disagree with you there. a single case can only act as the ‘final nail on the coffin’ but not the ‘iceberg that sank the titanic’

    the javellana decision was the ‘final nail on the coffin’. prior to its rendition, the SC has decided landmark cases favoring Marcos

    the lawyers who are ‘shuddering’ are obviously the senate lawyers, anti gloria lawyers, whiners Cayetano and Escudero, and not disinterested lawyers.

    paranoid on a ‘deja vu’ of the Javellana case? hold on the paranoia till a Con Con, Con Com, or Con Ass is constituted and assembled, and the proposed amendments are made public

    as if we don’t know yet what the Senators wanted to know from Neri re: exchanges with gloria on NBN ZTE despite knowing Abalos’ bribery attempt: gloria gave the go signal! thats truth already! what else do our bright senators need?!

    all these reactions against the Neri decision are really much ado about nothing

  15. Madonna,

    joke time. i got this from UP diehards

    (to everyone – pagbigyan nyo na, centennial naman ng UP this year)

    ano ang ibig sabihin ng mga sumusunod:

    ADMU
    DLSU
    UST

    sagot:

    ADMU – Aplikanteng Di Makapasok sa UP
    DLSU – Di Lumusot Sa UPCAT
    UST – UP Sana Tayo

    (joke joke joke joke)

  16. And we’d always resort to kidding him, “hay, naku palibhasa di ka taga-UP.” – Madonna

    Hmmm. That makes people like moi quite a special package then, doesn’t it? 😉

    Kawawang masang Pinoy.

    Most things great about the Philippines are reserved for UPeans (the Diliman variety) and Atenistas. Maybe that’s why they once attempted to move the capital to Quezon City.

    – 😀

  17. Benigno,

    Re-read again my comment. Special package? Naku, san mo nakuha yan dear? Fyi, that officemate of ours took no offense whatsoever, because he knew it was not as much as the fact that he was from Ateneo that we kid him with, but more because of his overall personal quirks. Actually his denseness was both annoying and endearing to us hehe.

    You know what’s your problem? Basic thing like inductive and deductive reasoning. Go review the process for both. How did “kawawang masang Pinoy” got into it? LOL! To the the moving of the capital to Quezon City? I swear this is what you call positively gothic line of reasoning Ya, you’re a special package altogether.

  18. Ms Madonna, obviously it is you who needs to work on digesting dry humour mixed with a bit of sarcasm and irony.

    Then again, maybe I am expecting too much…

    – 😀

  19. Benigno,

    Nice try. Sumegway sa topic hehe. From reasoning to humor. Digesting humor eh? My stomach may be differently consituted from yours. But all right, I’ll take on your advice. Cheers!

    BrianB,

    What happened to Brian Gorrell’s blog? Naging for invited readers only.

  20. “ADMU – Aplikanteng Di Makapasok sa UP
    DLSU – Di Lumusot Sa UPCAT
    UST – UP Sana Tayo”

    Kawawa naman ang UP, for a state university, the salaries of their professors should be in line with regional levels. Kaya naman napag-iwanan sila ng Chulalongkorn.

    the government should put lots of money to UP and make sure the entrance exams take only the best (hindi yung binababa ang passing rate tulad ng 2007 bar exams).

    and up should start generating greater income from spin-off and i.p.

    Walang pag-asa yang admu, dlsu, and ust to break into the regional top 50 dahil their operating needs are met by tuition fees..innovation and research are nil.

    otherwise, these school jokes are not even funny. it’s Singapore, Malaysia, and Thailand laughing at us.

  21. Tens of thousands of UP graduates have migrated to the U.S., Canada, and Australia and are doing quite well. Surely, their academic background and skills have benefited their host countries.

    I wonder how successful UP has been in tapping them for endowments, etc?

    P.S. I’m also a UP grad

  22. And of course, gracing the list of great UP-Diliman graduates will be Gloria Macapagal-Arroyo, PhD. To those who do not know her, Macapagal-Arroyo was born on April 5, 1947, in San Juan in the Philippine province of Rizal. Macapagal-Arroyo was raised in both San Juan and her mother’s hometown of Iligan, on the island of Mindanao, where she lived from the age of four to eleven with her maternal grandmother, Irinea de la Cruz Macaraeg.
    She obtained a Master’s Degree in Economics from the Ateneo de Manila University (1978) and a Doctorate Degree in Economics from Diliman – University of the Philippines (1985). From 1977 to 1987, she held teaching positions in different schools, notably the University of the Philippines and the Ateneo de Manila University. She became chairperson of the Economics Department at Assumption College.

  23. benign0: Macapagal-Arroyo is an example of a Filipino who has progressed financially without needing to migrate to overseas. 😐

  24. @UP n

    bakit wala diyan sa bio mo yung bukambibig ni Gloria na magkaklase sila ni Bill Clinton sa Georgetown at nagkaroon daw sila ng M.U?

  25. and nash: I agree . . . the government should put lots of money to UP

    I’m less worried about a less-rigorous entrance exam. What I want is a rigorous educational standard.

    The Princeton Univ model is okay —— hard to get in, easy to graduate once accepted. A state university, though, should be similar to the Virginia Tech model — easier to get in, darn hard to graduate.

  26. I’ve always thought Ateneo grads are more successful working for multinationals abroad. I know one who has several arvard MBAs below him, and he’s just a BA holder.

  27. “Bert,

    ang kulit mo talaga!”

    “saka wag mong isiping ang cha cha ay para ma-extend si gloria. ang daming dapat i-amend sa constitution – legislature and economic provisions, among others”–anthony s.

    anthony, saludo ako sa’yo, matiyaga kang magpaliwanag, maski mahirap, maski simple, naipaliliwanag mo para lang maintindihan. salamat. pero, ikinalulungkot kong sabihin na hindi pa rin tayo nagkakaintindihan.

    kailangan ko rin yatang mangulit ulit, at ito ay lalong mababaw kaysa sa dati, baka ma-gets mo na.

    ang aking tenga ay nakadikit ngayon sa lupa, inu-ulinigan ang ragasa ng mga kabayo at kilos ng mga alipores ni gloria na naka-ambang magsayaw ng chacha.

    @grd

    Sorry, grd, I have to annoy you one more time by ranting about this chacha issue again, but I have to respond to anthony. I have great regard for your opinions in this blog, it’s a pity that we have a differing views about the purpose of chacha in the present circumstances.

    anthony, you can recite to me the whole constitutional book and it will not change a bit the point of my rant about this charter change move. I can see you are good at what you are espousing on any issue here, pero dioskoday naman, kailangan pa ba nating e-underestimate ang mga alipores ni gloria? alam na alam na natin ang mga capabilidad ng mga iyan, kaya nga negative approval at negative popularity ang presidente. hangga ngayon ba naman hindi pa natin alam kung ano ang dahilan kung bakit negative? ay sus! kaya po negative kasi hindi naman po tatanga-tanga ang taong-bayan kagaya ng pagkakaalam ni benigNo.

    kaya, hwag mo ng ipaliwanag sa akin ang constitution, samahan mo na lang ako, kami, tayong boung taong-bayan. abangan natin kung paanong diskarte ang gagawin ng mga tauhan ni gloria sa charter change na darating.

    btw, hindi ang mga lumalaban sa chacha ang magtutulak kay gloria para gawin ito (gaya ng sabi ni grd) kundi ang mga sumasangayon dito!

  28. The Philippine Chamber of Commerce and Industry (PCCI), the biggest trade group in the country, expressed support on the Supreme Court’s decision on executive privilege. PCCI underscored the importance of the “rule of law” and “faith in institutional process” in maintaining the democratic ideals of the country and its institutions.

    “We have to abide with the processes that guide our Constitution and the institutions that operate within that framework. The Supreme Court’s role as the sole interpreter of our Constitution and government policies should not be undermined more so, its credibility and integrity should never be questioned,” PCCI said.

    PCCI maintains that the preeminent role of the Supreme Court as a Constitutional body providing check and balance in government affairs must be upheld.

    “PCCI as the voice of business supports all means of processes and procedures that are found within the ideals of the Constitution. PCCI’s existence and advocacy thrives in the upholding of government institutions and respect to their functions, operations, procedures and decisions,” PCCI said.

  29. Civil society groups are planning a multi-sectorial protest rally against the recent SC ruling, a senior Catholic bishop said.

    Lingayen-Dagupan Archbishop Oscar Cruz told CBCPNews, an on-line publication of the Catholic Bishops Conference of the Philippines (CBCP), that different civic groups that were participants in earlier Interfaith prayer rallies held against the NBN scam will hold protest rallies in different parts of the country soon.

    Cruz did not specify the exact date for the upcoming rallies but preparations for the rallies are under way, Cruz, a staunch critic of Arroyo and former president of the CBCP, said.

    The civic groups include political groups, student organizations, business associations and religious bodies, Cruz said.

  30. HISTORY HAS TURNED ONCE AGAIN , YET ALL OF YOU STILL PRETEND AS IF NOTHING HAS HAPPENED, AND EVERYTHING IS AS IT WAS. FOOLS! I KNEW IT. I WAS RIGHT. I TOLD YOU SO. THERE IS NO WAY AT ALL THE OLIGARCHS IN POWER WILL EVER VOLUNTARILY RELINQUISH THEIR HOLD ON THE REPUBLIC. AFTER THIS ULTIMATE BETRAYAL, THERE IS NOTHING LEFT TO HOLD BACK THE TIDE OF WHAT IS TO COME. IN THE END, THERE WILL AND CAN ONLY BE BLOOD. YES, THE BLOOD WILL COME FORTH, WAVES UPON WAVES, AND THIS SOCIETY WILL FREELY DROWN IN THE FLOOD OF IT BEFORE IT IS OVER. SCOFF IF YOU LIKE, IGNORE IT IF YOU PREFER, BUT IN THE END, THE RESULT STILL REMAINS THE SAME: REVOLUTION OF THE VIOLENT VARIETY. TODAY, OR TOMORROW, OR NEXT MONTH, OR NEXT YEAR, IT SHALL COME AND THE ACCUMULATED VENGEANCE OF JUSTICE DELAYED AND DENIED SHALL BE FINALLY BE DELIVERED AT LONG LAST. THE SIGNS ARE ALREADY HERE, IF YOU JUST HAVE THE DESIRE TO REALIZE THEM WHEN THE RICE IS GONE FOR GOOD, WHEN THE HUNGER BECOMES TOO MUCH TO BE ENDURED, THEN ALL OF YOU WHO HAVE BEEN BLIND AND DEAF AND NUMB, EITHER THROUGH CHOICE OR CHANCE, TO THE TRUTH OF THIS COUNTRY WILL THEN KNOW WHAT I HAVE ALWAYS KNOWN ALL ALONG : THIS NATION IS DOOMED TO DESTRUCTION BECAUSE DEATH IS THE DESTINY OF A DAMAGED CULTURE.

  31. to TheColdKing: your “death is the destiny of a damaged culture” is the closest yet that I saw a Filipino say

    God Damn The Philippines!!!

  32. Gloria has cleverly bought her (political) salvation from the C.B.C.P. (a.k.a. Catholic Bishops & Cardinals for the Pidals) through PCSO/PAGCOR “donations” to the bishops’ “pro-poor” programs.

  33. Ask Your Ate Glue

    Dear Ate Glue

    When God talks to you, does He call on the phone, appear in person or is it more like a voice in your head?
    —Anonymous,Makati

    Mr. Anonymous from Makati,
    I’m glad you asked that question.

    When I say God talks to me, I mean it metaphorically. In actual fact, God doesn’t talk. He simply drops messages in my brain like instant messaging. Every once in a while, I pick up these messages from God and keep the ones I like and delete those that don’t fit with administration policies.

    When in doubt I ask Cardinal Pidal,the personal cardinal of the Pidals or Brother Mike or Cardinal Rosales,via Meldy,his niece.

    I’ve got to admit my brain’s trash bin is getting kind of full from God’s deleted messages.

    Unfortunately, I haven’t been able to ask,I mean to order your Kuya Jose Pidal to figure out where the Empty Trash button is in my brain.I’m getting old!

    I’m also worried I might erase the PINs for our secret Swiss accounts.

    By the way,I’m celebrating my 61st birthday on April5.Expect a deluge of newspaper ads greeting me!

    ate glue

  34. BrianB,

    Apparently just a temp. glitch (he changed his blog format).

    ColdKing,

    Brrrrrr. French Revolution plus James Fallows. Easy on the combination. Maybe we need the outside help. There’s Brian Gorrell singing for us.

  35. BrianB,

    Apparently just a temp. glitch (he changed his blog format).

    Pinakaba mo ako madonna. Am suffering from withdrawal syndrome. Arghhhhhhhh mwhehehe

  36. i would agree it’s unfair to define the sc according to neri v. senate, only in that there still has to be a motion for reconsideration. after that, we will see the real numbers in the sc. and there will be those who will want to see how the sc votes in landmark cases to come… mlq3

    not that i got scared of coldking’s prophecy but i think the SC will reverse it’s earlier decision.

    >>>>>>

    DAY 32

  37. Don’t underestimate ColdKing’s and Devilsadvocate’s thesis: revolution may end this crisis now gripping the nation, if…….

    No, Fallow’s “damaged culture” is not necessary a condition that will precipitate a revolutionary change. Like religion, that kind of culture is, in fact, its suppressor – society’s opiate. It’s the way democracy and its institutions are being destroyed by Gloria and her mindless wrecking crews that pushes the country to the edge of such dreadful change. It is what frustrates the people, and infuriates them to put action into their own hands.

    Many people do believe the country has been pushed too far with their own lives going with it, leaving very little choice except a radical transformation that may be bloody this time. That’s because most remedies are either being shut up, ignored or dampened, allowing pent-up frustrations to accumulate and increasing the heat to a boiling point.

    Two important bastions of whatever democracy is left give a sense of the fragile hope on which hangs the country’s political future: Congress (specifically the Senate), and the judiciary (SC in particular). But as the SC becomes more complicit to the demands of the executive, civil society may be radicalized to take drastic action into its own hands.

    Only a critical mass, or tipping point is lacking now. A highly provoked masses may soon decide, without waiting for 2010 to make a transition.

  38. Should the SC reverse its decision, some people (identities 😎 can’t be revealed — executive privilege) have plans for an interfaith rally, then to surge 😳 the Padre Faura gates to have the judges join them for ensaymada and tea.

  39. “i pay my lawyers to do the work of auto mechanics. not to do my thinking or understanding of the law for me.” djb rizalist.

    with that kind of attitude, i’m afraid you’d have to go without a counsel of record forever. no lawyer worth his salt would allow himself to be second-guessed by a client in matters of law. in fact, in case of disagreement between a lawyer and his client in such matters, the lawyer is ETHICALLY bound to withdraw or decline representation. since you obviously think you are capable of handling your own case, you don’t need a lawyer anyway. i, for one, don’t need a client who “knows” the law better than i, and i don’t have to work as an “auto mechanic” for all the money that he can afford to pay.

  40. hawaiianguy, coldking, to people who want to force gma out come hell or high water, be careful on what you wish for. you might get it soon enough. but i don’t understand why you wish for waves on waves of blood, when after all this demolition you devoutly wish, you don’t have a better system to install? all for hatred’s sake?

    if you enjoy revolutions like a fiesta, go ahead. but be ready for a civil war in the menu, in case they serve something sizzling.

  41. mindanaon,

    It’s not for me to decide, let alone enjoy, a revolutionary change. I wish it wouldn’t happen, but who am I to prevent it if the Filipinos who desperately want change want it? Neither you nor anyone can stop it from happening, if it does happen at all at the right moment.

    Blame it on this corrupt-rich govt of Gloria.

  42. Bert,

    sorry i have to seriously disagree with you na di tayo nagkakaintindihan

    alam mo okay lang na magdiskusyunan tayo sa merits ng cha cha eh.

    ang isyu ko lang sa iyo naman eh bakit mo ako tatawaging taong gobyerno. ang ganda ganda ng diskusyonan natin, hahaluan mo ng ganyan? kaya nga sabi ko ang ganyang pag-argumento di bagay dito sa blog ni manolo, sa ellentordesillasdotcom lang yan bagay.

    ano? pareho kami ng sinasabi ng mga alipores ni gloria? wala akong sinasabing dapat i-extend si gloria at kung sinomang elected official

    alam mo lumilihis ka sa usapan natin –

    you are 101% correct IF ang proposed amendments ng cha cha ay i-extend si gloria, or maging parliamentary na ang gobyerno, implying na pwede pang maging PM si gloria.

    malabo yan

    – in the first place, malabong mag ConCon, Con Com, Con-Ass, magreferendum and for sure magdecide ang Supreme Court all before May 2010!

    not to mention na BAWAL ang any term extensions that will benefit the incumbent, kahit na interim PM pa ang uri ng extension. president to prime minister – pareho lang chief executive yan. alam mo, di ka pa nagrereact sa argumentong ito. dahil alam mong tama ako

    – any change in government, at the earliest, will come 2013, kasi kelangang i-honor ang mga term ng presidente at mga Senador na mananalo sa 2010 – magiging interim PM, ang nanalong presidente sa 2010 hanggang 2016, yung mga Senador na nanalo sa 2010 hahayaang maging sitting MP up to 2016

    to feed your paranoia – pwede lang maging PM si gloria sa 2016

    sabi mo

    kaya, hwag mo ng ipaliwanag sa akin ang constitution, samahan mo na lang ako, kami, tayong boung taong-bayan. abangan natin kung paanong diskarte ang gagawin ng mga tauhan ni gloria sa charter change na darating.

    susmaryosep! matagal ko nang sinasabi yan sa iyo! hintayin mo muna kung ano ang magiging proposed amendments bago pairalin ang paranoia!

    one thing is sure – napakalabong ma-extend si gloria beyond 2010.

    saka di pwedeng isulong ang cha cha ng walang pahintulot ng senado! yung mga alipores ni gloria ay lahat nasa House lamang!

    pakiusap ko lang wag mo lang kalilimutan – isang referendum ang mag-aaprove ng amendments, hindi ang Con Con, hindi ang Con Com, hindi ang Con Ass

  43. UP n,

    “Macapagal-Arroyo is an example of a Filipino who has progressed financially without needing to migrate to
    overseas”

    Joey Gurango can be a fine example also.

    Though he used to be based in the US, where he founded a software company that was bought by another company which in turn was bought by Microsoft, now at present he formed, maintains and operates Gurango Software here.

    Gurango Software is about to launch an IPO here.

    When asked why have an IPO here and not in NASDAQ or the NYSE, his short answer was – because Gurango Software is a Filipino company

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