My column for today is Senate the victim of a design flaw. In it I refer to two articles, former Chief Justice Panganiban’s column on the Senate’s rules, and my 2007 election post mortem, An abnormal return to normality.
I couldn’t find it at the time, but the September 1, 1945 diary entry of Antonio de las Alas explains why the Senate ended up drawing lots to determine the terms of its members. And also, when the drawing of lots took place, which was in August, 1945. Conjecture: that the destruction of official election returns for the November, 1941 elections might have required that solution.
Meanwhile, today’s Inquirer editorial, Focus on consequences, urges the Senate not to ask members of the Supreme Court to inhibit themselves. Such an act would be, uh, counterproductive:
Nothing erodes the people’s confidence in the court of last resort like an unjust decision. And a decision becomes unjust not because of the intentions that move the justices to rule one way or another but because of the ruling’s very real consequences.
The majority in Neri vs. Senate Committee may have set out simply to strike a balance between an assertive Executive and a rambunctious Senate. But the consequences of the decision have been most severe: The ruling dangerously swung the pendulum in favor of an Executive that has made a virtue out of secrecy (and fools out of those who demand transparency and accountability).
Rep. Teodoro Locsin, Jr. on my show last Tuesday said something similar, he was particularly offended by the Palace’s assertion that the Supreme Court decision made the Senate hearings “null and void.” Was the Executive Secretary decreeing what would and would not be facts, and saying that what had taken place in full public view never happened, he snorted. He said on that basis alone the Senate had good reason to appeal to the Supreme Court and point out that what the Justices may have considered a nuanced decision (and one, he added, that by the manner of the voting avoided becoming a doctrinal decision) has to be reversed because of the way it’s being applied.
Rene Azurin, the other guest on the show, had this to say today in his column:
René B. Azurin
Legal but not right
History buff Manolo Quezon saw parallels between the recent Supreme Court decision on the Neri case and the same body’s decision on the Javellana case a quarter of a century ago. Invited to comment on this on his TV program the other night, I said that the most notable similarity was that, in both cases, the justices could (with even stronger legal grounds) have taken the side of the hapless Filipino citizen but chose instead to give in to the desires of a powerful President.
In both instances, the justices who opted to support the President found refuge in arguments that are, doubtless, technically legal but also morally unworthy. Without bothering to delve into personal motivations, one can of course conjure up a whole slew of reasons as to why taking the side of specific powerful (and wealthy) individuals is far easier than taking thide of the nameless and powerless public.
In both instances also, the Chief Justices — Roberto Concepcion in 1973 and Reynato Puno today — dissented passionately and eloquently.
For those too young to remember, the Javellana case revolved around the validity of the 1973 Constitution. Mr. Javellana (and several other petitioners) questioned this Marcos-written charter essentially on the basis of the fact that it had not been ratified as specified under the 1935 Constitution then in effect. In the set play that unfolded then, the fiction of “Peoples’ Assemblies” was created and people were gathered at such assemblies and asked to raise their hands if they were in favor of the proposed new constitution. On the basis of such show of hands, Mr. Marcos claimed the new constitution approved.
The Supreme Court then — in a 6 to 4 vote — agreed that the new constitution had not indeed been ratified because such show-of-hands procedure was not in consonance with the relevant provisions of the 1935 Constitution that required that changing to a new constitution needed “a majority of votes cast in a plebiscite called for the purpose”. Having conceded that point, however, the pro-Marcos justices then demonstrated legal inventiveness and contort-ability, producing the concept of “acquiescence” and saying that the “acceptance” of the people can take the place of ratification. Four justices agreed. Three justices contorted themselves in a somewhat different way, saying that they did not have sufficient knowledge to say for sure whether or not the people had “accepted” the new constitution and that they were therefore not competent to rule on that question. Only two justices disagreed. In the end, the 1973 Constitution was held to be in force because it was already in force and there were not enough votes to declare that it was not in force. Huh?
In the current Neri case, on the other hand, the Supreme Court — voting 9 to 6 — decided that the highest officials in the Executive branch of government could legitimately conceal information from the Senate and, by extension, the public, even if such information involved the commission of a crime. Inexplicably, moreover, the Supreme Court held that it was not even necessary for these officials to show why it was necessary to withhold the information elicited, the only potentially permissible bases being military or diplomatic secrets the disclosure of which might endanger national security. Here, the legal contort-ability of the justices supporting this decision can be seen in how they sidestepped the constitutional provisions that expressly mandate the public’s “right to information on matters of public concern” and require the State to adopt “a policy of full public disclosure of all its transactions involving public interest” and, instead, argued that the notion that presidential communications were “presumptively privileged” had greater legal weight. To a simple engineer like me, that’s illogical.
Actually, most lawyers I’ve heard propound on the merits of the decisions in these cases appear so fascinated by the nuanced — I call it hair-splitting — legal arguments that they seem unable to strip the cases down to their most basic elements. At their most basic, these cases are about calibrating the balance of power between the Presidency — which is entrusted with the collective resources of the entire society and the full coercive might of government — and the people, more specifically the institutions that are supposed to be the means of the people for monitoring the use of the entrusted power and for holding the Presidency accountable for its abuse. At their most basic, the decisions in these cases mean that the power of the Presidency has been enlarged and the power of the people (already minimal to begin with) has been reduced. That should distress every one of us citizens because, even under the best of circumstances, it is difficult for us to obtain transparency in the wielding of executive power and, except in extraordinary instances, virtually impossible to hold our highest officials to account.
Mr. Quezon quoted Santayana on learning from history. What these lawyers and the pro-Presidency justices seem to forget is that the historical role of the rule of law in any society is to ensure that the rights of the powerless are not violated or abridged by those with power. They seem to forget that the rule of law that we are heir to today grew out of the experience of common people with overbearing monarchs and is essentially the consequence of uprisings that allowed the people to establish some rules and structures supposed to constrain the power of those to be entrusted with the might of government and make them accountable for their actions.
What the Supreme Court in the Javellana case and in the Neri case did was essentially to affirm the legitimacy of Presidential actions that usurp power the people did not intend the Presidency to have.
Clearly, justices in both Courts exhibited remarkable feats of legal legerdemain, the kind that raises the hackles of those against whom it is practiced. These were the kind that make people wonder whether our honorable justices care only about being legal and not about being right.
An interesting Reuters story: Manila’s Arroyo treads risky path with rice campaign:
The government’s very public campaign to ensure supply has created a sort of artificial crisis with poorer people queuing for hours in the heat to stockpile state-subsidized rice.
Manila’s more frequent rice tenders have also boosted international prices, which in some cases have more than doubled this year…, hiking the government’s import bill and the cost of subsidizing the grain.
The Philippines has said it wants to import up to 2.2 million metric tons of rice for this year, which would be its biggest purchase of the grain in a decade. So far, it has bought 1.2 million metric tons and is holding a tender for 500,000 metric tons on April 17.
“They are kind of fanning the fire,” said one Manila-based trader of the government’s measures. “I would interpret the series of tender schedules as panicky.”…
…The rice crisis is also putting pressure on the country’s finances.
In a recent research note, investment bank Credit Suisse calculated that the government could lose up to $1.3 billion or 0.7 percent of Gross Domestic Product (GDP) this year by importing up 2.6 million metric tons of rice at climbing world prices and selling it at lower prices domestically.
Having whipped up consumer fears with her efforts to be visibly on top of the situation, the best way for Arroyo to calm them down is to ensure adequate supply and to tone down the government’s more extreme responses, analysts say.