Senate likely to hold pre-trial By Christina Mendez (The Philippine Star) Updated January 04, 2012 12:00 AM Comments

(89) MANILA, Philippines - The senator-judges in the impeachment trial of Chief Justice Renato Corona are considering a pre-trial conference so they can have an idea of the evidence as well as the number of witnesses to be presented. We want a pre-trial so we can speed up the process and determine the evidence they will present, Senate impeachment court spokesperson Maria Valentina Cruz said. She said the impeachment court would also have to decide on Coronas request for a preliminary hearing ahead of the actual trial on Jan. 16. Cruz said the impeachment trial will start at 2 p.m. to allow the senator-judges to do legislative work in the morning. She also said only select TV networks will be allowed to set up cameras inside the plenary hall where the trial will be held. There are some restrictions. The media cannot interview in the hallways and the plenary hall. Ambush interviews are not allowed. There will be two rooms in the Senate where media can conduct interviews, she said. The Corona camp is seeking a preliminary hearing on its argument that the impeachment complaint is constitutionally infirm and defective because the 188 congressmen who signed it were unable to verify their signatures or prove that they had read and understand the articles of impeachment. The Chief Justices lawyers argued that verification is a constitutional requirement. But for members of the House prosecution panel, Corona was hiding behind a technicality in his pleading to avoid or delay his trial. After all, there were boasts of his powerhouse legal team, that he is ready and willing to face trial in the Senate and welcomes the opportunity to prove his innocence, the panel said in its 38-page reply to Coronas answer to the Senate summons. The panel said it was Corona himself - in a speech delivered Dec. 14 at the SC - who declared his desire to face an impeachment court as soon as possible. Apparently, now that the time has come for him to face the impeachment charges, he is not as bold after all, the panel added. The panel also reminded Corona that the House of Representatives has the exclusive power to initiate impeachment and that the Senate has summoned him to face trial. With these developments, it cannot be denied that the impeachment complaint is sufficient to proceed to trial. Any technical objections on the impeachment complaint are now barred and should no longer be entertained, the reply read. The panel added that there is always a presumption of regularity in an impeachment complaint, including in the verification. This presumption is not overcome by hearsay news reports that some congressmen supposedly failed to read the complaint, particularly in the absence of evidence that congressmen supposedly failed to read the impeachment complaint, the prosecutors added. Accountability is so crucial to democracy such that the Constitution has devoted an entire article to Accountability of Public Offices (Article XI), and has devised the impeachment mechanism as a way to hold high officers accountable to the sovereign people, it added. The House prosecutors also castigated Corona for declaring that the move to oust him is an attack on the entire judiciary. For all this self-serving, grandiose, and arrogant claims, his impeachment is not an attack on the independence of the judiciary or the rule of law, or the system of checks and balances, the reply read. The panel said the filing of the impeachment complaint was purely a response to the peoples clamor to hold him accountable for his sins and offenses, and purge the Highest Court of a morally unfit officer who has betrayed their trust. More legal challenge

Meanwhile, two more lawyers have asked the Supreme Court (SC) to declare the impeachment proceedings against Corona unconstitutional. Former assemblyman and Misamis Oriental Gov. Homobono Adaza and former President Joseph Estradas lawyer Alan Paguia jointly filed a 23-page petition to stop the impeachment proceedings amid calls for the SC not to intervene in the case. It was the fifth petition contesting the legality of the impeachment proceedings. Lawyer Vladimir Cabigao, tax informer Danilo Lihaylihay, former Integrated Bar of the Philippines president Vicente Millora and Marcos loyalist Oliver Lozano filed the previous petitions. Just like the previous petitioners, Adaza and Paguia argued that the impeachment complaint has not been verified by the overwhelming majority of the complainants. Not having been verified, the so-called verified complaint is a mere scrap of paper with no legal effect, the petition of Adaza and Paguia read. They said the House violated due process and the equal protection clause under the Constitution when it swiftly adopted the eight Articles of Impeachment signed by 188 congressmen. The Senate, for its part, abused its discretion when it accepted the Articles of Impeachment despite the lack of verification, the two lawyers said. In reality, the Senate has no legal basis for convening themselves into an impeachment jury. And to avoid making the issue moot and academic, we are asking the SC to stop or issue a TRO against the Senate from proceeding with the trial of the impeachment articles, Paguia told reporters yesterday. In a related development, Millora also filed yesterday a motion asking the SC to deliberate on their request for a TRO on the impeachment proceedings. He said the SC should act swiftly lest the issue becomes moot once the Senate proceeds with the impeachment trial. The SC is set to discuss the petitions for TRO in full-court session on Jan. 17 or a day after the start of the impeachment trial at the Senate. As the impeachment trial nears, Coronas supporters said they have high hopes of seeing him acquitted. We are hoping the Chief Justice will be acquitted. His lawyers already submitted an answer where it was shown that not only the impeachment complaint was weak but also the process of filing the complaint, SC spokesman Midas Marquez said in a press conference. Marquez said Coronas lawyers led by retired SC justice Serafin Cuevas would also respond to the reply filed by the House prosecutors last Monday. I think the Chief Justice is carefully studying the reply and he would answer it if required by the impeachment court, he added. Marquez declined to provide details on the defenses strategy, saying a communications group being organized would discuss the issue with the media. Its still being finalized. I understand the defense team and the prospective members of the communications group are meeting so it will be revealed as soon as it is finalized, Marquez said. A lot of issues will have to be explained while the impeachment process will take its normal course. The media will be asking so many questions, especially on the side of the Chief Justice, and that will be the main function of the communications group, he added. - With Edu Punay CasesquestioningconstitutionalityofCoronaimpeachmentdismissible By Romulo Macalintal 3:05 am | Wednesday, January 4th, 2012 4share23 18 (Editors Note: Romulo Macalintal served as an election lawyer of former President and now Pampanga Rep. Gloria Macapagal-Arroyo, who is detained on charges of electoral sabotage in connection with the 2007 senatorial polls in Maguindanao.) Supreme Court Chief Justice Renato Corona. INQUIRER FILE PHOTO There will be no constitutional crisis or military takeover when the Supreme Court takes cognizance of the petitions filed by some lawyers questioning the constitutionality of the impeachment complaint against Chief Justice Renato Corona. For sure, the Supreme Court will not stop the Senate from acting as an impeachment court to try and decide the Corona impeachment case.

As a matter of fact, the high court may eventually dismiss these petitions for lack of jurisdiction and/or lack of legal standing of the lawyers in filing the cases. The issues raised in the petitions, such as defective verification and lack of proper grounds to impeach, are the very same defenses raised by Corona in his answer to the articles of impeachment the House of Representatives transmitted to the Senate last month. The Chief Justice asked the Senate for the outright dismissal of the impeachment complaint or to enter a judgment of acquittal for all the articles of impeachment. The 2003 impeachment case against then Chief Justice Hilario Davide Jr. in which the high court took cognizance and granted the petitions of some lawyers assailing the constitutionality of the impeachment case, cannot be applied to Coronas case. In the Davide case, the impeachment complaint had not yet been received by the Senate when the petitions were filed in the Supreme Court. In Coronas case, the articles of impeachment had already been received by the Senate and Corona had already filed his answer, thereby submitting himself to or recognizing the jurisdiction of the impeachment court. The Supreme Court may likewise dismiss the petitions for lack of legal standing of the petitioners because they have not suffered any form of direct or personal injury as a result of the filing of the impeachment complaint against Corona. Furthermore, the grounds relied upon by the House in impeaching Corona are political questions which the Supreme Court cannot review or overturn. Finally, the tribunal does not usually touch on the issue of the constitutionality of an act of Congress if there are some other grounds upon which the court may rest its judgment. As stated, the Senate had already received the articles of impeachment against Corona and convened as an impeachment court, and Corona had already submitted himself to the jurisdiction of the Senate. These are enough grounds for the Supreme Court to avoid colliding with Congress on fundamental issues which could be resolved by the Senate as the sole constitutional body that tries and decides impeachment cases. It is very consoling that Corona immediately submitted to the jurisdiction of the impeachment court thereby avoiding any collision between the Senate and the Supreme Court.

Flunkers By: Conrado Philippine Daily Inquirer 9:58 pm | Tuesday, January 3rd, 2012 14share308 278 The University of Santo Tomas says its not true at all that it broke its own rules to give Renato Corona a doctorate, summa cum laude. It went strictly by the book. Though it could very well have given Corona the PhD with the corresponding honorsit is empowered to grant degrees to people whose relevant work experiences, professional achievements and stature, (etc.) are deemed equivalent to the academic requirements for such degreesbut it ruled to make Corona go through the grinder. In fact, Corona himself insisted on it. Just as well, though it could have exempted Corona from a thesis, UST insisted he write one. He did. The quality and relevance of his paper, his answers to the questions raised during the public forum, and the eventual publication of his paper were all evaluated and for which he was given the necessary creditsequivalent to a dissertation. Well, first off, the fact that UST even entertained the possibility that Corona might have been conferred an honorary degree on grounds of his accomplishments must suggest the quality of mind of the people who sat in judgment over him. Its particularly unfortunate that it cites Naty Crame Rogers, to whom it gave a doctorate in literature for her work in theater, as precedent. Rogers and Corona exist on the same plane? Rogers accomplishments are there for all the world to see. What has Corona done other than to accept a midnight appointment from a fake president? Everything goes downhill from there. If you can see accomplishments where there are none, you can see excellence where there is none. Where is Coronas thesis? Where is his brilliant piece of legal cogitation to bedazzle the world? Where has it been published? Or where is it lurking right now, awaiting, or avoiding, publication? The way things are, UST might have done better giving Corona a doctorate summa cum laude in commerce for relevant work experiences and professional achievements in that respect. That is what he had done to the Supreme Court, given it the rich trappings of commerce. UST can defend itself all it wants, but it will not get out of this unscathed. This is not a great way to mark 400 years of existence, the celebration of which culminates this month. This episode can only remind us that a great deal of the period UST went through in its lifetime was awash in religious obscurantism fomented by the friars. Or this episode can only remind us of T.S. Eliots famous lines in The Hollow Men: This is the way the world ends/Not with a bang but a whimper. But its more than this. Let us grant, however it strains credulity, that Corona got his doctorate with highest honors from UST by due diligence and acuity. What of it? We do not lack for people who did exceptionally brilliantly in law school, displaying erudition in all matters legal. We do not lack for people who topped the bar exams, along with toppling every bottle in the bar, and went on to found their own prodigious houses, or firms, the kind with red bricks for their faade, or its counterpart in these more tropical parts. We do not lack for people, particularly in both houses of Congress, who can perorate on the legal aspects of an issue and do so at the slightest provocation, or lack of it, loving not just the opportunity for exhibition but the sound of their own voices. We do not lack for law schools. We do not lack for law. We do not lack for lawyers. What we lack is justice. What all this law has produced in this country is a tremendous lawlessness. What all these lawyers have produced in this country is tremendous injustice. Even the Western countries of course have formidable houses or firms that pride themselves with their legal acumen, or their ability to win cases, or their ability to keep their clients out of jail, whichever comes first, or more profitably. But on the whole, justice, however imperfect it is, still manages to be the end product of the juridical system. Here, that doesnt seem to be the case. In practice, law exists in direct opposition to justice. In practice, lawyers exist in direct opposition to philosophers and sages. de Quiros

We do not lack for lawyers with intellectual abilities, what we lack are lawyers with moral intelligence. We do not lack for judges who can cite no end of legal precedents, what we lack are judges who can grasp no end of social consequences. We do not lack for justices who deserve to have graduated summa cum laude from law schools, what we lack are justices who deserve to pass, never mind with honors, in the school of life. There are exceptions of course. Ka Pepe Diokno topped the bar and accounting exams in the same year, a feat that hasnt been equaled, but he spent his life using law (and accounting) to defend the oppressed, to champion the oppressed, to assuage the distressed. He used his talents, in full display academically, to make sure that justice particularly during martial law did not become merely academic. But the rule is people like Corona. I dont know that he got his doctorate from UST fair and square. I dont particularly care. I do know that he did not get his position as chief justice fair and square, getting into the robes of the wisest of the wise by being wa-is, or by the most benighted means possible. I do know that he has not used the powerful position of the chief justice by advancing the cause of the powerless, using it instead nearly exclusively to champion the cause of one of this countrys greatest oppressors. I do know that the day he faces the ultimate Chief Justice of this life, who are the people, and the ultimate Chief Justice of the afterlife, who is St. Peter, they, if not the senators who will hear him out in his impeachment, will weigh him and find him wanting. And flunk him.

Shockingrevelationsin2dissentingopinions By: Neal Philippine Daily Inquirer 9:57 pm | Tuesday, January 3rd, 2012 7share202 187 The defense in the impeachment case against Chief Justice Renato Corona is using the entire Judiciary as its shield, saying that the impeachment is an attack by the Executive on the independence of the Judiciary. But as the House prosecutors said in its reply, the CJ is not the judiciary. A fraternity brother of Corona in the Court of Appeals (CA) is reportedly spearheading a campaign among the CA justices for the issuance of a manifesto expressing their support for the Chief Justice and calling for the protection of the Judiciary. Such call by his fraternity brothers and other supporters is expected, but hitching this partisan cause to a grand call to protect the independence of the Judiciary is wrong. Obviously Corona is not the Judiciary, and the Judiciary is not CJ Corona. The Judiciary has long lost its independence, not to the present administration but to former President Gloria Arroyo when she packed it with people beholden to her. The impeachment process is not an assault on the independence of the Judiciary but, precisely, the first step in releasing it from its bondage to Arroyo. The Court is a hostage institution, it must be freed and reclaimed by the people. The first step in this rescue is to remove its gatekeeper, Corona, who was appointed just as the Arroyo administration was ending. *** I read the dissenting opinions of Associate Justices Antonio Carpio and Maria Lourdes P.A. Sereno to the Nov. 29, 2011 resolution of the Court. That resolution, by a vote of 7-6, upheld the effectivity of the temporary restraining order (TRO) issued in favor of Arroyo despite her non-compliance with the conditionsset by the Court itself in its Nov. 15, 2011 resolutionjust so the TRO would become enforceable. The dissents reveal explosive facts: the TRO specially favored Arroyo and Coronas bias and partiality towards her. 1. The premature issuance of the TRO was revealed in the dissent of Justice Carpio who said that the TRO was actually issued and released to the petitioners before 6 p.m. of Nov. 15, even before petitioners compliance with the first two conditions of the TRO. The high court had set conditions in its Nov. 15, resolution before the TRO could take effect: (1) the posting of a P2-million cash bond; (2) the appointment, by special power of attorney (SPA), of a legal representative who will receive subpoenas, orders and other legal processes on her behalf; and (3) Arroyos informing the Philippine embassy or consulate in the place where she will be traveling regarding her whereabouts at all times. However, despite these clear conditions, the TRO was prematurely issued prior to Arroyos full compliance. She posted the bond and submitted the SPA only at 6 p.m. on Nov. 15, but the TRO had already been issued earlier. In fact, Supreme Court spokesman Midas Marquez confirmed in an interview that the TRO had already been issued past 5 p.m. This clearly shows the premature issuance of the TRO. Furthermore, given the irregularities of the issuance, it is evident that only the Court could have authorized the irregular issuance to allow Arroyo to flee and escape prosecution, Carpio said. 2. In her own dissenting opinion, Justice Sereno revealed how she was prevented from publishing her dissent in the Nov. 15 resolution in violation of Article VIII, Sec. 13 of the Constitution, which states: any member (of the Supreme Court) who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. Sereno said she submitted her dissent on Dec. 2. However, the Clerk of Court refused to promulgate her dissent. Instead, lawyer Enriqueta Vidal, the clerk of court of the tribunal en banc, admitted that she could not tell (Serenos) staff the real reason for the non-promulgation of (Serenos) opinion; that actually, Justice Presbitero Velasco instructed her, as confirmed by the Chief Justice, that Serenos opinion should not be promulgated but that it should be taken up in the Dec. 6, 2011 en banc session. 3. A reading of Serenos dissent shows why Corona suppressed itto hide how he falsified the results of the Courts Nov. 18, 2011 deliberations by correcting the draft resolution which changed the decision made by the Court. On. Nov. 18, the Court had voted on two issues: whether or not Arroyo complied with the conditions for the issuance of the TRO; and whether or not the TRO was still effective. The Court voted 7-6 that there was non-compliance by Arroyo with the conditions. However, the Court voted 7-6 to keep silent on the effect of the noncompliance since the ineffectiveness of the resolution was common sense. In spite of the clear vote of the Supreme Court en banc, the Chief Justice made his own handwritten corrections to the resolution prepared by Justice Velasco on the decisions made on the Nov. 18 deliberations wherein he falsely made it appear that Arroyo substantially complied with the conditions for the issuance of the TRO and that the TRO was in full force and effect. H. Cruz

Despite the fact that Coronas handwritten corrections were contrary to what was approved by the Supreme Court en banc on Nov. 18, Corona ordered the clerk of court to immediately promulgate his falsified version. 4. Serenos dissent revealed that while the resolution has not yet even been written, Midas Marquez falsely told the public that the TRO is in full force and effect and, as far as the SC is concerned, Arroyo can travel out of the country immediately. Marquez even falsely declared that the voting for the affirmation of the TRO was 9-4 when the truth was, the Court voted 7-6 that there was noncompliance.

CaesarswifetestforSC Philippine Daily Inquirer 10:09 pm | Monday, January 2nd, 2012 0share1 1 Impeachment is, indeed, a tool of democracy although the process of impeachment can also be used to divide a nation. The impeachment of Chief Justice Renato Corona, who is said to be a midnight appointee of former President Gloria Macapagal-Arroyo, beleaguers our nation and has divided our people. Hence, if I were the Chief Justice, I would ask the other associate justices, who owe their appointments to an allegedly illegitimate president, to resign as well, out of delicadeza. By resigning from their present positions, they will not be regarded by the public as kapit-tuko which is an honor reserved only for lowlifes. For, like Caesars wife, justices of the Supreme Court must be above suspicion. Established is the norm that judges should not only be impartial but should also appear impartial. Judges must not only render just, correct and impartial decisions, they must do so in a manner free from any suspicion as to their fairness, impartiality and integrity. They should not wait to be impeached, considering that an official who resigns after he has been impeached may, nevertheless, be tried by the Senate as the punishment for a convicted impeached official includes disqualification from any public office. Resignation has the effect of removal, whereas, disqualification to hold any public office in the future may still be subjected to judgment. Moreover, conviction by the Senate is not curable by pardon. EMMANUEL LJ. MAPILI,

House asks Senate to junk Corona plea By Paolo Romero and Christina Mendez (The Philippine Star) Updated January 03, 2012 12:00 AMComments (86)

MANILA, Philippines - Prosecutors of the House of Representatives in the impeachment trial of Chief Justice Renato Corona asked the Senate yesterday to junk his motion to dismiss the case against him. In a 38-page comment on Coronas motion, the 11-member House panel asked the Senate acting as an impeachment court to proceed to trial forthwith and convict the Chief Justice for corruption, betrayal of public trust and culpable violation of the Constitution for accepting his midnight appointment by then President and now Pampanga Rep. Gloria Macapagal-Arroyo. This is a reply to the answer filed by the respondent Chief Justice. Basically, we just stressed four points. We refuted point by point the issues raised by the Chief Justice (CJ) in his affirmative defense, lead prosecutor Neil Tupas, chairman of the House committee on justice, said in a press conference after the filing of their comment with the Senate. We challenge the CJ of SC not to resort to legal technicalities. Its just a delaying tactic on the part of the Chief Justice to avoid technicality and accountability, to delay the process, Tupas said. The respondent has said that he has engaged a powerhouse defense legal team. We presume that the legal team is ready for trial. The prosecution panel is also ready for trial. The people want the truth to come out so Mr. Chief Justice, lets get it on for the sake of the nation, he said. Deputy Speaker and Quezon Rep. Lorenzo Taada III, one of the spokespersons for the prosecution team, said the impeachment trial in the Senate must push through to send a message that all in government are accountable for their actions. The heart and soul of our reply is that all public officials in all three branches of government are accountable for their actions. Chief Justice Corona is not exempted from this provision of the Constitution, Taada said. We will prove that he is morally unfit to hold the position of Associate Justice, much more chief justice, of the SC, Taada said. Corona is not immune from accountability. For all his self-serving, grandiose and arrogant claims, his impeachment is not an attack on the independence of the judiciary, or the rule of law, or the system of checks and balances, the prosecutors said. Coronas impeachment is purely a

response to the peoples clamor to hold him accountable for his sins and offenses, and purge the highest court of a morally unfit officer who has betrayed their trust, they added. Members of the House prosecution panel are Ilocos Norte Rep. Rodolfo Farias, Dasmarias City Rep. Elpidio Barzaga, Marikina City Rep. Romero Quimbo, Mindoro Oriental Rep. Reynaldo Umali, Bayan Muna party-list Rep. Neri Colmenares, Akbayan party-list Rep. Arlene Bag-ao, Isabela Rep. Giorgidi Aggabao, Deputy Speaker and Northern Samar Rep. Raul Daza, Citizens Battle Against Corruption party-list Rep. Sherwin Tugna, and Cavite Rep. Joseph Emilio Abaya as manager. Aurora Rep. Juan Edgardo Angara was elected as alternate prosecutor and spokesman along with Quimbo and Taada. A total of 188 lawmakers impeached Corona last Dec. 12 based on several grounds, including alleged partiality and subservience to the Arroyo administration, flip-flopping on decisions, and failure or refusal to account for the Judicial Development Fund and special allowance for the judiciary. There is no factual basis for Coronas claim that President Noynoy Aquino wants to appoint his own chief justice who will be at his beck and call. Firstly, this argument only betrays his deepest secret: that he is beholden to the person who appointed him: GMA (Arroyos initials), Quimbo said. Secondly, if that were the objective of P-Noy, it should be noted that the three appointees of P-Noy voted against the Hacienda Luisita issue. This completely belies Coronas contention, Quimbo added. The panel also said Corona is not being singled out and that neither can he hide under the pretext that the decision assailed is collegial in nature. Colmenares said one of the strongest arguments for Coronas impeachment was his issuance of a temporary restraining order (TRO) on the Department of Justices placing Arroyo on the immigration watch list. The TRO would have allowed Arroyo to seek medical treatment abroad for her troublesome cervical spine. Article VII (of the Articles of Impeachment) is the betrayal of public trust through his partiality in granting a TRO in favor of former president Gloria Macapagal-Arroyo and her husband Jose Miguel Arroyo in order to give them an opportunity to escape prosecution and to frustrate the ends of justice, and in distorting the Supreme Court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the Supreme Courts own TRO, Colmenares said. His impeach all justices or no one at all defense is absurd because this would render useless the constitutional requirement that each justice should be impartial and independent, Colmenares said. Just like any public official, justices are judged on their individual actions. The Chief Justice and his defense team would really have a hard time with all the charges, especially this case because it is as airtight as a case can get, he added. Luisita not the issue House prosecutors also debunked Coronas claim that it was the SCs order on the Hacienda Luisita case that prompted Aquinos allies in Congress to move for the Chief Justices ouster. What Corona failed to mention, however, is that even President Aquinos appointees in the Supreme Court (Justices Sereno, Reyes and Bernabe) voted in favor of the distribution, which belies Coronas claim that President Aquino appoints justices who will protect his perceived interests, the prosecution panel said. While President Aquino may be passionate in his campaign against graft and corruption and for accountability and reform, this impeachment is not a scheme of President Aquino, they said. The prosecutors also rebuffed Coronas likening his impeachment to a thief in the night. If he did not sense his impeachment coming, then he is truly deaf to the cry of the people. Any objective observer would have readily seen it in the public outrage that attended Coronas acceptance of his midnight appointment from GMA in May 2010, they added. The truth is, impeachment did not immediately come, as Corona was given a chance for over a year to prove himself and fulfill his promise to faithfully and impartially discharge his office, the panel added. The prosecutors said lawmakers had been vocal about their intention to have Corona impeached since December 2010 in the wake of the SCs issuance of a status quo ante order against the impeachment of then Ombudsman Merceditas Gutierrez, and its nullification of the Truth Commission. Both cases involve the core issue of holding GMA accountable, the prosecution panel said.

Coronas unfailing and unwarranted fealty to GMA shows that he is not independent-minded - he votes or resolves cases not on the merits, but on what would best serve GMA. At the moment, the evidence against Corona is stronger and more apparent than against the other justices. Moreover, it would be difficult to impeach and prosecute several justices at the same time. But this does not necessarily mean that other justices will not later on be similarly held accountable, it added. No SC-Senate face-off The SC is unlikely to stop the Senate from proceeding with the impeachment trial of Corona despite some legal challenges to the constitutionality of the ongoing ouster move against the SC chief, lawyer Romulo Macalintal said. For sure, SC will not stop the Senate from performing its constitutionally mandated task to hear and decide impeachment cases, Macalintal said. As a matter of fact, SC may dismiss the said petitions for lack of jurisdiction since the Senate had already been convened as impeachment court and Corona himself submitted to its jurisdiction when he filed his answer with motion to dismiss, he told The STAR. Macalintal said Coronas case was different from the earlier impeachment of retired Chief Justice Hilario Davide Jr., which was still in the House of Representatives when questioned before the SC. What is consoling is that Corona decided to fight it out in the Senate, thereby preventing any possible collision between Congress and the SC on issue which the Senate is constitutionally mandated to resolve, he said. For sure, Coronas motion to dismiss is not intended to delay but part of the rules which lawyers resort to protect the interest of their clients, he said. With Edu Punay

Inthegrandmanner By: Conrado Philippine Daily Inquirer 10:20 pm | Monday, January 2nd, 2012 3share18 13 Renato Corona has a ploy. He wants to question the blitzkrieg filing, signing and transmittal of theimpeachment complaint in Congress. He would like the Senate to determine first if the 188 congressmen who signed it bothered to read it first. At first blush, that seems like a reasonable request. I myself still remember the late Speaker Ramon Mitra saying his colleagues were the sort that wouldnt mind signing a piece of toilet paper if you shoved it in their faces. Though Gloria Macapagal-Arroyos protgs were widely rejected by the electorate during the last elections, I dont know that the quality of the congressmens discernment, or their ability to distinguish paper you write on from that you wipe your ass with, has improved dramatically. But what a wretched pass Corona has reached that he should be this desperate. At the very least, its selective perception of epic proportions. I dont recall him protesting the way Manny Villar sneaked through Eraps impeachment in 2000. That was a blitzkrieg to end all blitzkriegs. Seconds after the opening prayer, and skipping the traditional roll call, (Villar) immediately read a resolution sending the impeachment case to the Senate for trial, bypassing a full vote and ignoring attempts by Estrada allies to delay the proceedings. (Wikipedia) Coronas silence, or indeed enthusiastic endorsement of the blitzkrieg, was not surprising. He was chief of staff and spokesperson of then Vice President Arroyo at that time. He would go on to become presidentialchief of staff after Arroyo took over from Erap. And thence chief justice. He would owe her for life. Again I did not hear him protesting the way the congressmen blithely dismissed the impeachment complaints against Arroyo in 2005, 2006, 2007 and 2008. I did not hear him ask if all the congressmen who voted to crush the impeachmentonly a tiny minority didbothered to read it before they hired speechwriters to write lofty speeches in defense of the mugging of the electorate. In his case, whether or not the congressmen read the impeachment articles closely or at all, there is his record to show how biased his decisions have been19-0 in favor of his patron. In Arroyos impeachment case, whether or not the congressmen read the impeachment articles closely or at all, there was the Hello Garci tape playing all over the place, courtesy of Arroyos own press secretary who sprung it before the public, to suggest monumental wrongdoing. Yet Corona finds Congress commendation of his impeachment objectionable and its rejection of Arroyos laudable. But its more than this. Its another case of using the letter of the law to thwart the spirit of the law. Or using the law to screw justice. The technicality is meant to delay the inevitable. Ben Evardone is right. If Corona gets his way, he would either be tried too late in the day or not at all. Thats so because it will take at least 188 days to verify the 188 signatures or more than half a year. By which time the power of the Senate to act as impeachment court would have lapsed or the senators would have gotten bored from the delay, whichever came first. That alone should show the compelling urgency of impeaching Corona. He is the very antithesis of a chief justice. You wonder in the first place what law school he came from given Oliver Wendell Holmes brilliant insight: The business of a law school is not sufficiently described when you merely say that it is to teach law, or to make lawyers. It is to teach law in the grand manner, and to make great lawyers. He explained that in his book, Common Law: The law embodies the story of a nations development through many centuries, and it cannot be dealt with as if it contained only the axioms and de Quiros

corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. If that applies to ordinary lawyers, then that most certainly applies to chief justices. A chief justice is there to show that the law is not just some statute lurking in the yellowed pages of a book tucked in a corner of theSupreme Court library, he is there to show that the law is nothing if it is not validated by history, if it is not bolstered by experience, if it is not unleashed by a breadth of vision and interpretation. The chief justice is there to make law noble. He is there to make law magnificent. He is there to practice law in the grand manner. He is not there to look for legal loopholes to survive. I can only hope that the senators turned judges, even if they are not all lawyers, will possess what Corona clearly does not. I can only hope that they are capable of looking at things and interpreting things as much through the prism of historical insight as through the statute books. Or at least that they harbor in the heads or hearts an instinctive sense of right and wrong. My desperation in that respect is lessened by the thought that the proceedings will be televised. Contrary to the senators who have been protesting that fact, saying that it will subvert the objectivity of the Senate, it is the only guarantee that objectivity will prevail over partisanship. It is the only guarantee that the law will not be turned, as it has been turned beyond the sight of God and man, in Coronas courts, into an instrument of intimidation and oppression. It is the only guarantee that the law will become the flaming sword of justice. The last impeachment was so, no small thanks to the people themselves donning on the robes of chief justice. In that capacity, they practiced law in the grand manner. In that capacity, they dispensed justice in the grand manner.

DismissCoronasbid,HouseasksSenate By Cynthia D. Philippine Daily Inquirer 12:11 am | Tuesday, January 3rd, 2012 1share21 20 Supreme Court Chief Justice Renato Corona. INQUIRER FILE PHOTO Lets get it on. Saying Chief Justice Renato Corona is not the judiciary and should not act as if he were above the law, the House of Representatives on Monday formally asked the Senate to junk his petition to dismiss the impeachment case against him. The House also urged the Senate, which will sit as an impeachment court, to proceed with the trial and convict Corona. It said the Chief Justices claim that his impeachment threatened the judiciarys independence was grandiose and a sham. The people want the truth to come out. Mr. Chief Justice, lets get it on for the sake of the nation, Iloilo Representative Niel Tupas Jr., chairman of the House justice committee, said at a press briefing. In their reply to Coronas petition, the House prosecution team dismissed his claim that his impeachment threatened the independence of the judiciary. Corona is not the judiciary and the articles of impeachment are leveled against him and him alone. This impeachment aims to remove him from office and free the Supreme Court from the influence of former President Gloria Macapagal-Arroyo, former First Gentleman (Jose) Miguel Arroyo, and their cabal, the team said. The Senate is set to start the impeachment trial of Corona on January 16. He is facing eight charges, including betrayal of public trust as a result of his alleged partiality in cases involving former President Arroyo. Tupas and four other lawmakersNeri Colmenares, Reynaldo Umali, Joseph Emilio Abaya and Raul Dazasubmitted to the Senate the House reply to Coronas petition at 2:49 p.m. Monday. With the submission, we are all the more confident that the Senate will be convinced of the strength of our case and will convict CJ Corona for betrayal of public trust, the House prosecutors said. At the trial in the Senate, the House shall act as the sole prosecutor through a committee of 11 members to be elected by a majority vote. Delaying tactic Tupas dismissed Coronas claim that the verification of the impeachment complaint was defective. He said the Chief Justice was resorting to legal technicalities to avoid accountability. (W)e challenge him not to resort to legal technicalities. Its just a delaying tactic on the part of the Chief Justice to avoid public accountability and delay the process, Tupas said. He denied Coronas claim that there were only four copies made available for the signatories of the impeachment complaint, adding that the complainants also signed the verification page. Biggest coddler The House prosecutors added that Coronas removal would not weaken the Supreme Court or the judiciary. Rather, it will strengthen and invigorate the institution by ousting GMAs (Arroyo) single biggest coddler in the Supreme Court, thereby restoring the peoples faith in it. They said Corona was among the justices who voted for declaring the Philippine Truth Commission as unconstitutional; stopped the Aquino administration from revoking the appointment of GMA midnight appointees; issued a status quo ante order on the impeachment proceedings against former Ombudsman Merceditas Gutierrez; and issued a temporary restraining order against the hold-departure order against the former First Couple. The prosecutors dismissed Coronas defense that these rulings were collegial decisions of the Supreme Court. True, but his individual vote in those decisions is undeniably his personal action and his own responsibility. And the consistent pattern of Coronas voting, together with his long and very close personal and professional relations with GMA, indicate a strong bias in favor of GMA, the House prosecutors said. Indeed, it is remarkable that even in those cases where the majority of the Supreme Court decided against GMAs interests, Corona chose to go against the majority and voted in favor of GMAs interests, they said. Balana, Philip C. Tubeza

Coronas unfailing and unwarranted fealty to GMA shows that he is not independent-mindedhe votes or resolves cases not in the merits, but on what would best serve GMA, they added. Power without accountability The prosecutors reminded Corona that power without accountability was anathema to the Constitution. Corona is not immune from accountability. For all his self-serving, grandiose and arrogant claims, his impeachment is not an attack on the independence of the judiciary, or the rule of law, or the system of checks and balances, they said. The House prosecutors said Coronas impeachment is purely a response to the peoples clamor to hold him accountable for his sins and offenses, and purge the highest court of a morally unfit officer who has betrayed their trust. The team said Coronas statements and actions showed that he considered himself to be above the law and that he refused to be held accountable. Any government employee can be removed from office for committing an offense, but Corona asserts he cannot be removed and imperiously equates his impeachment to an attack on the entire judiciary, the House prosecutors said. End untouchable complex This arrogance and I-am-untouchable complex must end. Corona and those like him must be made to realize that they are servants of the people and answerable to the people. No one is above the law, they added. They said Coronas impeachment was not the result of the high courts decision awarding Hacienda Luisita, the sprawling sugar plantation owned by President Aquinos clan, to farm workers. What Corona failed to mention is that even President Aquinos appointees in the Supreme Court voted in favor of the distribution [of the sugar estate], which belies Coronas claim that President Aquino appoints justices who will protect his perceived interests, the prosecutors said. They denied that the ruling Liberal Party was behind his impeachment or that the process was done in stealth. If he did not sense his impeachment coming, then he is truly deaf to the cry of the people. Any objective observer would have readily seen it in the public outrage that attended Coronas acceptance of his midnight appointment from GMA in 2010, the prosecutors said. 188 signatories On December 12 last year, 188 members of the House signed the impeachment resolution. The number of signatories was more than one-third of the 285 House members, a requirement under the Constitution to impeach the Chief Justice without going through the plenary debates. Twelve House members later signed a motion to include them as complainants. The truth is, impeachment did not immediately come, as Corona was given a chance for over a year to prove himself and fulfill his promise to faithfully and impartially discharge his office, the prosecutors said. Unfortunately, his decisions in controversial cases involving GMA and the previous administration are the best evidence of his subservience to her and his failure to live up to the high standards of a Chief Justice, they added. Also other justices The prosecutors said Corona was not being singled out. At the moment, the evidence against Corona is stronger and more apparent than against the other justices. It will also be difficult to prosecute several justices at the same time. But this does not necessarily mean that other justices will not later on be similarly held accountable, they said. Sought for comment, Supreme Court administrator and spokesperson Jose Midas Marquez said Coronas submission to the Senate of an answer to the articles of impeachment was proof that he recognizes the impeachment process. But then again, the Chief Justice raised several issues concerning that. The process itself and its constitutional requirement were not complied with, Marquez told the Philippine Daily Inquirer. Even the substance of that complaint was also put at issue, he added. On the House contention that Corona is not the judiciary, Marquez said: Thats their argument. Lets wait for the rejoinder of the Chief Justice if his lawyers will find the need for it. Marikina Representative Miro Quimbo, meanwhile, said that the last slot in the 11-prosecution panel would be occupied by a woman and that Deputy Speaker Erin Taada would withdraw from the prosecution panel. Quimbo said Taada and Quezon Representative Juan Edgardo Angara would serve as deputy spokespersons of the prosecution team. Taadas slot in the prosecution panel as alternate prosecutor will be taken by Representative Sherwin Tugna of the Citizens Battle Against Corruption party-list group. With a report from Marlon Ramos

QuickquestionsfortheSenateasjury By: Fr. Joaquin Philippine Daily Inquirer 8:56 pm | Sunday, January 1st, 2012 3share30 25 By Constitutional mandate the Senate is the judge in an impeachment case. Let me propose some questions arising from a summary of the charges filed by the House of Representatives. I believe the Senate will ponder these after it has determined that the complaint was properly verified. I. Respondent betrayed the public trust through his track record marked by partiality and subservience in cases involving the Arroyo administration from the time of his appointment as Supreme Court justice, which continued to his dubious appointment as a Midnight Chief Justice and up to the present. a. I too opposed the exercise of the appointing power during the two-month prohibited period. But the Supreme Court decided otherwise. May the Senate review the Courts decision? b. Is it illegitimate to assume that the votes of Corona represented independent judgment? II. Respondent committed culpable violation of the Constitution and/or betrayed the public trust when he failed to disclose to the public his statement of assets, liabilities and net worth as required Under Sec. 17, Article XI of the 1987 Constitution. a. The command on making assets and liabilities public is qualified by the clause in the manner provided by law. Is there a law providing the manner and did Corona violate it? G. Bernas S. J.

b. Alternatively, if there is no law applicable specifically to the Judiciary, may Corona follow instead the manner prescribed in Resolutions of the Supreme Court before him? (Which I am told he does regularly.) c. What evidence will be presented on the alleged illegally acquired property? III. Respondent committed culpable violations of the Constitution and betrayed the public trust by failing to meet and observe the stringent standards under Article VIII, Sec. 7 (3) of the Constitution, which provides that [a] member of the Judiciary must be a person of proven competence, integrity, probity, and independence in allowing the Supreme Court to act on mere letters filed by a counsel which caused the issuance of flip-flopping decisions in final and executory cases; in creating an excessive entanglement with Mrs. Arroyo through her appointment of his wife to office; and in discussing with litigants regarding cases pending before the Supreme Court. a. Is the flip-flopping of the Court in collegial decisions attributable to Corona alone or to a body struggling to arrive at justice? Did Corona himself flipflop? b. Is the Court prohibited from modifying prior decisions or doctrines? c. When and by whom was Mrs. Corona appointed to John Hay Management Corp.? Is a husband obliged to compel his wife to turn down an appointment? Or did he try to dissuade her at all? Or was he overruled by the wife? d. Can a husband be made answerable for acts of the wife? e. Will Justice Carpio be asked to testify about the alleged lobbying about pending cases? IV. Respondent betrayed the public trust and/or committed culpable violation of the Constitution when it blatantly disregarded the principle of separation of powers by issuing a status quo ante order against the House of Representatives in the case concerning the impeachment of then Ombudsman Merceditas Navarro-Gutierrez. a. What can be made of the fact that the status quo ante order was a resolution of eight justices? How did Corona vote on the later reversal of the status quo ante order? V. Respondent committed culpable violations of the Constitution through wanton arbitrariness and partiality in consistently disregarding the principle of res judicata and in deciding in favor of gerry-mandering in the cases involving the 16 newly created cities, and the promotion of Dinagat Island into a province. a. Were not the League of Cities case and the Dinagat case collegial decisions upholding acts of Congress? Were the laws involved statutory responses of Congress to the people as master as against the greed of the League of Cities? b. Was not the Fasap (Flight Attendants and Stewards Association of the Philippines) decision also collegial? c. Is the Supreme Court powerless to look into the activities of its members (e.g., plagiarism) especially if it involves things that might affect the reputation of the Court? d. Was not the creation of new districts in Camarines Sur done by Congress, the representative of the people? e. Who decides the application of the principle of proportionality (or one man, one vote) in the size of districts? VI. Respondent betrayed the public trust through his partiality in granting a temporary restraining order (TRO) in favor of former President Gloria Macapagal-Arroyo and her husband Jose Miguel Arroyo in order to give them an opportunity to escape prosecution and to frustrate the ends of justice, and in distorting the Supreme Court decision on the effectivity of the TRO in view of a clear failure to comply with the conditions of the Supreme Courts own TRO. a. The constitutionality of the restriction on the right to travel through a Department of Justice circular on hold-departure orders is pending before the Court with the decision expected after New Year. Should the Senate preempt the Supreme Court decision? b. What is the import, if any, of the existence of a House bill and a Senate bill disempowering the DOJ? c. The continuing effectivity of the TRO has been affirmed by the Supreme Court. What power does the Senate have over it? VII. Respondent betrayed the public trust and/or committed graft and corruption when he failed and refused to account for the Judiciary Development Fund (JDF) and Special Allowance for the Judiciary (SAJ) collections. a. Involved in this is the interpretation of the extent of fiscal autonomy of the Court. What is the jurisprudence on this? Will the Senate apply or depart from existing jurisprudence on the subject?

CoronaandotherArroyoJusticesresignationwilrestoreSCcredibility By Ted Laguatan 8:12 pm | Wednesday, December 28th, 2011 5share172 149 If Renato Corona had been more sensitive to issues involving honor and propriety, he would have immediately declined when former President Gloria Macapagal Arroyo (GMA) offered to midnight appoint him as Chief Justice. He knew the law and he knew that his appointment was illegal if not immoral. Instead of refraining, he accepted the offer. Likewise, the Arroyo appointed Justices should not have engaged in the dark conspiracy to legalize Coronas appointment. Ignoring public feelings about propriety and legality, they arrogantly and blatantly utilized their majority numbers to rule repeatedly in favor of the Arroyos and other special interests as if saying: We have the numbers. We own the Supreme Court. What we say is the law! Justices should be highly conscious that they owe their loyalty primarily to the people and not the President who appointed them. If the people had not voted a candidate to become president, he or she would not have had the power to appoint Justices. Here, it is even arguable whether or not former President Gloria Macapagal Arroyo (GMA) actually possessed the legitimate power to appoint Justices. Arguably, she should not even have been President. She is alleged to have resorted to election shenanigans (Hello Garci) and utilizing the Ampatuans and other allied warlords to engage in massive cheating on her behalf. Having a primary sacred duty to protect the public good, Justices must use the law to serve the interest of truth and justice. Instead, it appears that the Arroyo Justices did a one for all and all for one agreement conspiring to protect the interests of their patroness GMA above that of the people. To the public, Corona appears to have shook hands with the devil. He is perceived to be GMAs main man in the Supreme Court that in exchange for

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his appointment as Chief Justice, he is expected to constantly provide the leadership for the cabal of Arroyo appointed Justices in always protecting the interests of the Arroyos. He has not disappointed. Any person with a modicum of intelligence, who has been following the decisions of the Supreme Court on any Arroyo related matter, would not be unreasonable in concluding that the Arroyos own the Chief Justice and the other Arroyo appointed Justices. To restore faith in the Supreme Court, is it right and proper for President Benigno Simeon Aquino and legislators to use their powers and influence to bring down erring Justices who abuse their judicial powers? Heres my take on this: Most Filipinos sense that the Arroyo Justices who control decisions in the Supreme Court abuse their powers by continually, blatantly and shamelessly shoving unpalatable clearly biased pro Arroyo decisions down the peoples throats. Power tends to corrupt and absolute power corrupts absolutely observed British historian and moralist Lord Acton. How true. GMA and her appointees have obviously politicized the Supreme Court. In this uncontrolled culture of judicial power tripping, in this unspoken but understood secret conspiracy principles of truth, justice and fairness are no longer seen as primary issues but simply incidentals that can simply be given lip service but cleverly ignored. Tyranny or abuse of power inflicted on the people by a pack of dishonest Justices is no less a tyranny than that exercised by a brutal greedy dictator. Well meaning citizens must fight against all forms of tyranny. Our well being and the well being of future generations depend so much on our commitment and courage to be true to the deepest truths within us and our willingness to resist evil. The Supreme Court is an indispensable vital institution in a democratic society. The people need to have faith in the courts. It is belief in the honesty of the courts that prevents people from taking disputable matters into their own hands and resorting to self help frontier justice. Unfortunately, we now have a Supreme Court which the people justifiably do not trust. If the highest court in the land cannot be trusted, trust for the lower courts will deteriorate even more. The Arroyo Justices have not only abused the people with their consistently biased and unfair decisions but have also abused the Supreme Court as an institution. It is because of them that the people have lost faith in the Supreme Court as a true and fair arbiter of justice. Corona and the other Arroyo Justices have done enough harm to the Supreme Court and the nation with their tyranny. They can still redeem themselves by resigning. Corona has vowed to fight and defend himself against impeachment charges. Mistakenly, he thinks he can win this fight. What he and his few supporters fail to see is that even if assuming he is not formally impeached, he can never regain his credibility to be able to effectively function as Supreme Court Chief Justice. He cut his own throat the moment he agreed to be midnight appointed as Chief Justice. He dug an even deeper hole for himself when he repeatedly led the majority Arroyo Justices in making blatant pro Arroyo Supreme Court decisions. In reality, the impeachment trial of Corona in the Senate is not a true trial where the outcome is based on objective evidence. Instead, it will be based along party lines. Expect also some individual Senators who acquired many concessions from GMA to act as forceful advocates for her and not as objective listening judges. We have already seen some of these goings on in the impeachment trial of former President Joseph Estrada. There the people sensed that the majority of pro Estrada Senators were not sitting as objective Judges but were set to acquit him. As such, the people took to the streets and forced Estrada out of power. It was right and proper for the people to do so. They have a right to defend themselves against tyranny. In those historical moments, the people correctly defended themselves against the perceived corruption of the President and against the tyranny of a conspiring majority of Senators who were blind to the peoples call for justice. Will the people again need to take to the streets for Coronas impeachment? In defending himself from impeachment charges, Corona gathered together some employees of the Supreme Court and essentially delivered a political speech. He attributed the impeachment case filed against him by a 2/3 majority of the House of Representatives as stemming from Aquinos desire to be a dictator. He blames Aquino for his troubles as if this was something personal with Aquino and him. He suggests that as Chief Justice, he is in the forefront in defending the Supreme Court. Corona: I oppose this dictatorship that President Benigno Simeon Aquino III is slowly establishing. Coronas big problem is credibility. The ordinary thinking Filipino does not believe him. Most Filipinos believe that Aquino sincerely means well and is not a dishonest power hungry nor greedy egomaniac who wishes to have dictatorial powers. For sure, the humble low key Aquino does not fit that role. Moreover, most Filipinos feel that he is perfectly justified in seeking the ouster of Arroyo appointed Justices. They even support him in fully utilizing his extensive presidential powers to impeach or cause the resignation of Corona and the Arroyo appointed Justices. Filipinos also understand that Aquinos intention is not to usurp the Supreme Court as an institution but seeks the ouster of these Arroyo appointed Justices because it is the correct moral thing to do and necessary. They need to be ousted for the Supreme Courts credibility to be restored. This is not a personal battle between Aquino and Corona. As such, the offer of a Catholic bishop to mediate and have them shake hands will not amount to much. The issue is not about a frayed personal relationship between the two men. Neither is it a battle between the Executive Branch versus the Judicial Branch. As such, there is no Constitutional crisis here as Corona, other Arroyo supporters and mercenary journalists would have the public believe. The situation is this: The Filipino people simply want an honest and just Supreme Court that they can believe in. In order to have that kind of Supreme Court, they recognize that the Arroyo appointed Justices need to be impeached or be pressured to resign. They recognize and appreciate Aquinos strong moral leadership in leading this sacred fight and fully support him. It is noteworthy that Aquino who comes from a wealthy and powerful family could easily have avoided conflict by betraying the people and entering into a secret modus vivendi agreement with the wealthy and powerful Arroyos and the Arroyo Justices. So many of our leaders have betrayed us by siding with the wealthy and powerful for mutual tit for tat arrangements and personal gain. It speaks well for Aquino that he has followed his fathers lead. Ninoy could easily have avoided imprisonment and acquired a high position in Marcos government. All he had to do was cooperate with Marcos evil and provide legitimacy to his lies. But Ninoy knew that at stake was the Filipinos freedom and honor. By being true to his God and his conscience, he paid the ultimate price. He could not be bought nor intimidated. So he was killed. His sacrifice brought down a brutal and greedy dictatorship which would most likely be existing today had Ninoy not been true to his deepest self. Good versus evil. Truth versus lie. Right versus wrong.

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Life is constantly about the decisions we make and which side we are on. Note: Atty. Ted Laguatan is honored by the California State Bar as one of only 29 U.S. lawyers officially certified continuously for over 20 years as Expert-Specialists in Immigration Law. He also does complex litigation in other areas of the law. Email laguatanlaw@gmail.com

Palparanandthedesaparecidos:NuncaMs By: Raul Philippine Daily Inquirer 10:46 pm | Thursday, December 29th, 2011 1share13 10 Retired Maj. Gen. Jovito Palparan wants to have his cake and eat it too. If he truly wishes to avoid trial by publicity, he should surrender to the courts and there face the music. Otherwise, he would have evaded trial altogether, before both the courts of justice and before the court of public opinion. In fact, it is most telling that he stands charged only now for a 2006 incident, and merely with kidnapping and serious illegal detention for what are essentially enforced disappearances. Lest people forget, desaparecidos entered the jargon of human rights only in the 1970s. While dissidents may have disappeared earlier in history, it was only in the 1970s that the phenomenon emerged in Latin America as part of the strategy of repression by dictators, almost at the same time that it did in the Philippines when we were under martial law. The Latinos called it desaparecidos, while we called it salvaging. (I recall a foreign human rights intern who later published an essay on this strange term, salvaging, that he encountered during his summer in the Philippines.) The phenomenon changed linguistic practices as well. Hitherto, to disappear had been an intransitive verb, but today it can be used transitively as well. Whereas before we would say that Sherlyn Cadapan and Karen Empeo have disappeared, today the more accurate phraseology, one that captures the essence of disappearances, would say that Sherlyn and Karen were disappeared. The perpetrators have disappeared them, rather than made them disappear. Disappearances exploit the law itself to short-circuit our justice system and frustrate the laws remedies and safeguards. The usual remedy is the writ of habeas corpus (Latin for You have the body), by which a court commands government to produce the prisoner so that the court may rule on the legality of his arrest and custody. With disappearances, the governments security forces can merely shrug off the habeas corpus petition by simply denying that the person was ever in their custody. The Court of Appeals, when it initially threw out the habeas corpus petition explained: [T]he courts have limited powers, means and resources to conduct an investigation. This brings us to the second lesson. That it took more than five years for the criminal case to be filed reminds us why we must choose government leaders who have the political will to run after the evil men who in the first place devised and eventually carried out the desaparecido strategy of neutralizing dissidents. We cannot rely solely upon the courts to run after criminals. We need the support of the Executive Branch, with its investigative and intelligence network, to ferret them out. Thus the initial treatment of habeas corpus petition filed by the families of the two University of the Philippines activists, Sherlyn Cadapan and Karen Empeo. At 2 a.m. on June 26, 2006, they were seen being herded tied and blindfolded by armed men wearing bonnets and boarded on a jeep. The Court of Appeals initially threw out the case, saying that habeas corpus is not the appropriate remedy since there was no strong evidence that the missing persons are in the custody of the respondents. When the respondent military officers reported that neither Sherlyn nor Karen was in their custody, they had thus made a proper return upon the writ. The Court of Appeals reversed that finding only after the victims families moved to reconsider and likewise petitioned for a writ of amparo, a new remedy created by then Chief Justice Reynato Puno in 2007 to confront precisely this problem of deniability in desaparecido cases. The puzzle was solved by the eyewitness testimony of Raymond Manalo who, together with his brother Reynaldo, was kidnapped by the military. They both managed to escape and lived to tell their tale. The Supreme Court would summarize his testimony: The next day, Raymonds chains were removed and he was ordered to clean outside the barracks. He was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go home and be with her parents. During the day, her chains were removed and she was made to do the laundry. After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with Allan whose name they later came to know as Donald Caigas, called master or commander by his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if they escaped, their families would all be killed. The UN Special Rapporteur on Extra-Judicial Killings called Gloria Macapagal-Arroyos response to this problem a passivity bordering on abdication of responsibility. The recent transfer of Palparans co-accused from civilian to military custody is worrisome because it shows a persistent tendency to see this case as if it were business as usual, amid a fear that any undue attention will amount to unequal treatment. On the contrary, the case calls for our continued vigilance. After the restoration of democracy in Argentina, they formed a national commission on the desaparecidos whose widely regarded report was entitled Nunca Ms (Never Again). The typical Pinoy doesnt speak Spanish, but one day we should be able to join our Latin compaeros in proclaiming: Nunca Ms. C. Pangalangan

Why the House had to act swiftly GOTCHA By Jarius Bondoc (The Philippine Star) Updated December 28, 2011 12:00 AM Comments (3)

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Despite President Aquinos nationwide ban, logging goes on in the Muslim provinces of Maguindanao and Lanao del Sur. So with Lanao del Norte, outside the autonomous region. Two intertwined political families dominate the Lanao provinces. They, along with selected henchmen-mayors, vice mayors and a retired colonel, openly operate sawmills. They equip woodsmen with chainsaws for the dirty job of denuding forests, in the process exposing lowlands to mudslides and floods. Investigators can inquire from Togolan tribesmen in Iligan Citys mountain barangays of Rongonon, Digkilaan, Dulag and Mandulog. Army units in Lanao know who the destroyers of the forests are. If assured of full presidential backing and no political vendetta, they will move swiftly to stop logging. It is the philosophy of most armies to protect and replant decimated forests. * * *

Three petitions have been filed with the Supreme Court to stop the Senate trial of impeached Chief Justice Renato Corona. The petitioners see wrong in his swift impeachment by 188 congressmen within hours last Dec. 12. They are asking the SC to issue a status quo ante (SQA) order, since supposedly the signatories were coerced. The supplicants may not know it. But the potential release of such an SQA was the very reason leaders of the House of Reps sped things up. Twice before, SQAs had prevented congressmen from exercising their power to impeach. First was in 2003, when the House plenary was blocked from impeaching then-Chief Justice Hilario Davide, as endorsed by the justice committee. The SC en banc first voted 14-0 that they held jurisdiction over six petitions, then 13-1 that the impeachment complaint was unconstitutional. Supposedly it was filed only 143 days from a previous (dismissed) one, instead of at least a one-year gap. The House leaders then grudgingly relented. Second was in Sept. 2010, when the en banc barred impeachment proceedings against Ombudsman Merceditas Gutierrez. Purportedly the House might have violated Gutierrezs constitutional rights in merging two separate raps. In Feb. 2011 the SC ultimately ruled to let the House proceed, prompting Gutierrez to resign to avoid public trial. An SQA is the SCs polite way of intervening in the actions of a co-equal branch of government. But its spokesman in 2003 explained that it had the effect of a temporary restraining order (TRO) on a lower agency or private litigant. In the Davide incident, lawyer-congressmen likened the SQA to a TRO issued by a judge in a case where he was the accused. In Gutierrezs, they regretted that despite the SCs eventual go-ahead, the damage had been done of delaying constitutional House business for five months. Fear of yet another debarring SQA made the House leaders wary on Dec. 12. They wanted no head-on with the SC. So, limited copies of the impeachment rap were distributed. The justice committee presented the text and highlights on PowerPoint. One count of culpable violation of the Constitution raised against Corona was the very SQA of Sept. 2010. One count of corruption was for refusal to account for the Judiciary Development Fund, the same rap against Davide in 2003. A few questions were entertained; the objectors agreed to raise their points at the plenary, should the signatures not reach 97, or one-third of House members, to send the complaint for trial forthwith. No gift bag of cash, no pork barrel was dangled. Disallowed was to take out of the conference room the one copy for signature. For there was one other fear: the filing of a bogus, watered-down complaint ahead of the real one. Objectors were assured of no hard feelings if they left the room, for anyone was free to do so. To their surprise, 188 signed, nearly two-thirds of the House. It reflected the members trust in the House leaders. The House secretary-general then explained the meaning of verified complaint as stated in the Constitution, then certified it so. The certification was transmitted to the Senate, along with the verified rap. Still, one congressman later grumbled he was not permitted to study the rap sheet at home, so couldnt sign; fine, said the House leaders. Another claimed he was removed from chairing a powerful committee for objecting; untrue, said the House leaders who had been discussing his replacement three weeks prior for budget obstructionism. A third, a first-termer, said he signed after overhearing rumors that objectors pork would be withheld; colleagues scoffed at his acting on the basis of gossip. A fourth, a party-list rep who was absent from the Dec. 12 caucus, was quoted in a news report as saying the signatories were bribed P1 million each. Foul, cried the House leaders who, despite his subsequent distancing from the offensive claim, brought up charges of unethical behavior against him. Now it is the Senate that faces the prospect of a Supreme Court SQA. A congressman-prosecutor has urged it to ignore such order, if released, for unconstitutionality. Article XI, Accountability of Public Officials, Section 2-(6) states: The Senate shall have the sole power to try and decide all cases of impeachment. Deciding all cases includes side issues, like the matter of verified complaint, which the co-equal House already had certified as complied with.

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CJ: Dismiss impeach raps By Christina Mendez (The Philippine Star) Updated December 27, 2011 12:00 AM Comments (131) MANILA, Philippines - Chief Justice Renato Corona sought yesterday the outright dismissal of the eight articles of impeachment filed against him by the House of Representatives. Describing the filing of the case as done in blitzkrieg fashion, Corona said the impeachment complaint failed to meet the requirements of the Constitution and the impeachment court should enter a judgment of acquittal for all the articles of impeachment. Corona also prayed for all other reliefs just and equitable under the premises. Former justice secretary Serafin Cuevas leads Coronas defense team, which includes Jose Roy III, Jacinto Jimenez, Ernesto Francisco Jr., German Lichauco II and Dennis Manalo. Senate lawyer Arnel Jose Banas received 32 copies of the 79-page answer at 3:35 p.m. Yesterday. Also on hand was Senate legal counsel and designated impeachment spokesperson Ma. Valentina Cruz. In calling for the dismissal, Coronas legal team accused President Aquino of instigating and ordering the filing of the impeachment charges to remove the Chief Justice. With much effort, one reaches the inevitable conclusion that President Benigno C. Aquino III, as the head of the Liberal Party, must have been in on the plan from the inception. In contrast, it is unlikely that President Aquino knew nothing of the plans to impeach the Chief Justice, it added. Any president, Aquino included, hopes for a Supreme Court that consistently rules in his favor. Ensuring political advantage would amply justify the allegations that President Aquino seeks to subjugate the Supreme Court. More importantly, however, many circumstances and events dating back to the election of President Aquino support the conclusion that it was he who desired to appoint the Chief Justice and who instigated and ordered the filing of impeachment charges to remove CJ Corona, they said. Aquino manifested his desire even before he was elected president, they said, noting Aquinos statement that he would rather take his oath of office before a barangay captain than before Corona, whom he and the LP bloc consider a midnight appointee of former President Gloria Macapagal-Arroyo. Aquino then opted to take his oath before Justice Conchita Cario-Morales. In a prefatory statement, Coronas lawyers quoted: The sin of Pontius Pilate is not that he exercised his powers, but that he abandoned his judgment, washed his hands and let the angry mob have its way. They argued that impeachment, for CJ Corona, came like a thief in the night. Even as he stands before this Tribunal to defend himself, his great fear is the danger that lady justice herself must face, it read. They criticized the 188 members of the House of Representatives who hastily signed the Articles of Impeachment, causing the immediate transmission of the complaint to the Senate. Almost instantly, some members of the House resigned from the majority coalition, amidst complaints of undue haste in the filing of the Articles of Impeachment. It appears that members were expected to sign on being offered tangible rewards, even if denied the opportunity to read the Articles of Impeachment and examine the evidence against CJ Corona, it added. They argued that the impeachment was the handiwork of the Liberal Party alone, referring to the administration party that supported the campaign of Aquino. Borne out of bias What we have before us, then, is a complaint borne out of bias against CJ Corona and the predisposition to destroy him by associating him with the unpopular former President Gloria Macapagal-Arroyo and by misinterpreting his concurrence to certain Supreme Court decisions as protecting Arroyo, the answer read.

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The defense team also discussed the hidden forces who will benefit from Coronas ouster and who are conspiring and causing intriguebehind the scene to ensure his removal and their re-emergence into power to the detriment of the Bench, Bar and the populace. Certainly, such cannot be the backdrop, purpose and consequence of impeachment, they added. The impeachment process, although political in character, has therefore became a partisan orgy, devoid of any mature deliberation and of lawful purpose whatsoever, especially in a precedent-setting and historic event involving no less than the impeachment of the Chief Justice of the Philippines, they added. After outlining the political events that happened prior, during and after his impeachment, Coronas lawyers described an executive branch that is unwilling to brook any opposition to its power, particularly in prosecuting high officials of the former administration. Corona, however, recognized the need for the Senate to intervene in what he described as a move of a determined executive to impeach him. He argued that the bedrock of principles of separation of powers and checks and balances simply could not survive without a robust and independent judiciary. An independent Supreme Court and judiciary cannot be allowed to dissolve into hollow words from its fragile reality, he said. The Senate is now called upon to protect the judiciarys independence under the Constitution, and save the nation from the abyss of unchecked executive power. In these proceedings, Corona also recognized that the responsibility of protecting the judiciary belongs to the Senate. Only through a fair and judicious exercise of its judgment can the Senate restore productive coexistence within the trinity of the Republics three great branches, the lawyers added. Corona admitted that he rendered service as an officer of the offices of the Vice President and President, but not of Gloria Macapagal-Arroyo. He belied the accusation that he has been partial to the former president, who appointed him Chief Justice in May last year. Corona said he could not be held accountable for the outcome of cases before the SC, which acts as a collegial tribunal. By mentioning the decisions and actions of the Supreme Court, complainants demonstrate their lack of understanding of the concept of a collegial body like the Supreme Court, where each member has a single vote, he explained. The Chief Justice also stressed that it is not uncommon for justices to have previously worked as professionals in close association with the President, citing as example the case of Senior Justice Antonio Carpio, who was appointed by Arroyo to the SC after being a partner in the law firm that used to be the retained counsel of the Arroyo family. Coronas defense team SC spokesman Midas Marquez said Cuevas, who is identified with the Iglesia ni Cristo deposedPresident Joseph Estrada in his plunder trial, volunteered his legal services to Corona. and who was a defense lawyer of

The 83-year-old Cuevas served as associate justice of the SC during the Marcos regime from June 1984 to April 1986. Prior to his appointment to the SC, he was also a justice in the Court of Appeals, judge in Court of First Instance, and fiscal in Manila. A graduate of the University of the Philippines College of Law, he has four decades of experience in teaching law not only in UP but in other universities as well. Asked if the involvement of Cuevas would mean the support of INC to Corona, Marquez said he is not privy to such arrangement. But he stressed that any support from key sectors would be welcome to the Chief Justice. Cuevas will be joined in the defense panel by former Pamantasan ng Lungsod ng Maynila law dean and president Jose Roy III.

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Resident constitutional expert and long-time professor Jacinto Jimenez and Ateneo law school professor and public interest lawyer Ernesto Francisco Jr. also volunteered their services to Corona. Francisco used to be with ACCRA (Angara Abello Concepcion Regala & Cruz) Law offices. Another topnotch law firm Siguion Reyna Montecillo & Ongsiako also sent two lawyers to Coronas defense team, German Lichauco II and Dennis Manalo. In a press conference, Marquez revealed that Corona personally handpicked all six lawyers, who signed his answer to the impeachmentcomplaint from many others who offered their free services to him. Marquez explained that the list is only initial since there would be more lawyers who would aid them in the impeachment trial. The House named the members of its prosecution panel: Representatives Niel Tupas Jr. of Iloilo, Erin Taada of Quezon, Rodolfo Farias of Ilocos Norte, Reynaldo Umali of Mindoro Oriental, Giorgidi Aggabao of Isabela, Elpidio Barzaga Jr. of Cavite, Neri Colmenares of Bayan Muna and Arlene Bag-ao of Akbayan. They added Deputy Speaker Raul Daza to its prosecution team and named Representatives Juan Edgardo Angara of Aurora and Sherwin Tugna of the party-list group Citizens Battle Against Corruption as alternate prosecutors, and also designated Cavite Rep. Joseph Emilio Abaya as team manager and Marikina Rep. Miro Quimbo as spokesman. Asked to compare the caliber of Coronas defense team with members of the prosecution team from the House of Representatives, Marquez replied: Its difficult to compare because all lawyers of the Chief Justice are seasoned practitioners. I dont know if the prosecutors would hire lawyers, but I understand they are also lawyers in their own right. Marquez explained that representing the Chief Justice would not affect cases of his volunteer lawyers that are pending in the SC. Perhaps, the Chief Justice will inhibit in their cases, he stressed. He also revealed that Corona does not plan to temporarily go on leave from his work pending trial in Senate, but assured the people that he would appear in the hearing if required by the impeachment court. Marquez added that Corona would also appoint spokespersons for the impeachment trial in the Senate. The Chief Justice is very careful in appointing spokespersons. Hes looking at their respective background, he said. This will be the first time a Chief Justice would face an impeachment trial in the Senate. With Edu Punay

DeathoftheTruthCommissionasoriginalsin By: Fr. Joaquin Philippine Daily Inquirer 10:55 pm | Sunday, December 25th, 2011 17share228 202 Was the invalidation of the Truth Commission really the original sin of the Supreme Court which has impeded the Presidents campaign against corruption? I took a second look at the decision. If the President had read it with an open mind, he would have found that his speechwriters and advisers may have given him the wrong signal about the impact of the Courts decision. The fact is that, when the report on the death knell on the Truth Commission was rung by the Supreme Court, there was no lamentation in the Palace. A Palace spokesman simply said in a matter-of-fact way that the Palace accepted the decision. My colleagues and I were not surprised by such reaction. One main reason for creating the Truth Commission, after all, was the obvious Palace and public perception that the ombudsman could not be relied upon to pursue a campaign of walang corrupt, walang mahirap. And so indeed the Presidents allies would relentlessly go after the ombudsman and they could rely on a vast majority in the House of Representatives only too ready to satisfy the Presidents wishes. With the departure of the former ombudsman, the urgency of a Truth Commission would disappear. As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have rescued the executive order by minor amendments to make it conform to what the Court wanted. The Court was not asking for too much. All it was asking for was a textual expression in the G. Bernas S. J.

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law that it would not exclusively target the past administration. The Courts desire for a clear sign of equal protection did not exclude the possibility of giving priority to what had transpired during GMAs time. As the Court emphasized: Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution. All that was needed was a little tweaking as suggested by the Court itself. (I myself did not think that tweaking would be necessary.) The Palace, however, believed that it did not need a Truth Commission and therefore chose to let it die. My impression is that the governments motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented by the Palace. Why so? Because, aside from the fact that the Palace was looking toward a new ombudsman, the decision was in fact an affirmation of the legality of the Palaces determination to pursue a campaign against graft and corruption. The decision, very importantly, was and is an affirmation of the often ignored portion of Article VII, Section 17, of the Constitution, which says that the President shall ensure that the laws be faithfully executed. This is the same phrase on which President Cory Aquino relied when she denied the request of former President Ferdinand Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her, saying that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of executive power. Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. Echoing this earlier decision, the Truth Commission decision said: Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. The Palace, in fact, was preparing a new team that would lead the exercise of these vast powers. However, I dont know what happened to that team after the person who was supposed to lead it was incapacitated by sudden illness. The Truth Commission was also challenged by the opposition on the ground that it was a usurpation of the powers of the Office of the Ombudsman and of the Department of Justice. On this point the Court said: Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. Why is it then that in his recent speeches the President has repeatedly blamed the invalidation of the Truth Commission as a major cause of the governments failure to succeed in its drive against corruption? It seems that it is because, in spite of the vast powers of government and its singleminded campaign to pin down Gloria Macapagal-Arroyo and Chief Justice Renato Corona, he is seeing that his investigation and prosecution arms are failing him. He may be seeing this as his own personal failure. Thus, sadly, his lamentation over the death of the Truth Commission sounds like a smoke-screen for personal failure.

Theonlybossatbattlegroundofprinciple By: Oscar Franklin Tan 3:42 am | Monday, December 19th, 2011 38share1187 1072 Hilario Davide Jr., singlehandedly holding the nation together through sheer integrity, remains my image of a chief justice. I walked to Edsa with the Class of 2001, listened to him speak at my graduation then and, with the greatest of pride, entered his alma mater, the UP College of Law. This image broadened to include Justice Antonio Carpios stand against a sham peoples initiative for Charter change and Chief Justice Reynato Punos rallying the nation against extrajudicial killings. Thus, the so-called assault on the Supreme Court comes as a visceral blow. Natalie Portman almost whispers, So this is how liberty dies with thunderous applause. However, the players are woefully inferior to Davide, Carpio and Puno. Gloria Macapagal-Arroyo in her neck brace claimed to be a human rights victim. The Courts instant TRO was answered with the House of Representatives instant impeachment complaint, an incomprehensible rant with shoddy legal citation that congressmen hopefully read. Justice Secretary Leila de Lima claimed her police power creates exceptions to the constitutional right to travel other than the explicit national security, public safety and public health. Supreme Court spokesperson Jose Midas Marquez suggested judges go on nationwide strike. Ferdinand Topacio bet his ball. Elena Bautista-Horn opened her mouth. Glaringly absent from this circus is any semblance of principle, and President Aquinos grand crusade against corruption has degenerated into, per the Inquirers editorial cartoon, petty name-calling with Chief Justice Renato Corona. The President and Congress have a duty, equal to the Courts, to interpret the Constitution. Common sense dictates that they must interpret their source of authority. In 2003, then Justice Puno reiterated this duty as rooted in the separation of powers and counseled the Court not to rule on an impeachment complaint against Davide to allow Congress interpretation to first be heard. In 1893, in one of the first Harvard Law Review articles, James Bradley Thayer noted that Congress is the Constitutions primary interpreter; its laws affect every facet of life but go unreviewed unless a case is brought. It is indubitable that the sovereign people have the ultimate duty to interpret the Constitution. To say that the people themselves are heard only during elections is to disbelieve our democracys design and to have been left by the times. The speed at which ideas spread through Twitter and Facebook facilitates the expression of the peoples will outside the polls and the streets, and Harvard Prof. Laurence Tribe describes the invisible constitution shaped by experience. That it is impossible to concretely gauge the peoples will is no reason to discard it, as some later learned at the polls and the streets. It is indubitable that the President, Congress or the people themselves may challenge a decisions doctrine. In the fledgling United States, Thomas Jefferson pardoned those sentenced under the Sedition Act, a law he thought unconstitutional. Abraham Lincoln challenged Dred Scott, the infamous ruling that slaves were not citizens, and eventually fought a war over slavery. In the post-Great Depression recovery, Franklin Delano Roosevelt challenged antiquated Court doctrines on economic regulation. Finally, it is indubitable that the Courts doctrines may ultimately be challenged with impeachment.

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The absence of principle is damning, however, with a Chief Justice impeached. To engage the Court on a battleground other than its own reasoning debases its special independence from fickle politics. A president who argues principle with the Court is statesmanlike; a president who merely argues his losing record is a sore loser screaming at the referee after fouling out. It is doubly troubling that the so-called bullies refuse to argue principle because there is a wealth of dubious doctrine in the assailed decisions. Biraogo v. Philippine Truth Commission cited equal protection to strike down the latter because it was aimed only at officials of the Arroyo administration and not those of previous ones. The Corona Court thus elevated corrupt lackeys to the same plane as victims of apartheid and segregation, cheapening Edsas legacy with the stroke of a pen. One might also question the grammatical acrobatics that justified Coronas midnight appointment, the all-powerful letter that led the Court to reverse itself to the detriment of labor unions, and the Microsoft Word defense against plagiarism. Joseph Estradas impeachment underscored that we are critical of our duty as the only boss when confronted with it. The overwhelming popular support currently behind the President and the House will surely dissipate unless concrete evidence and clear principle replace crude ravings. This impeachment is not about Mr. Aquino, Arroyo or Corona, or even De Lima, Horn or Marquez. It is about once again placing our democratic institutions under intense scrutiny as a new generation of voters with no firsthand memory of Edsa emerges. An accounting of the judiciary must not degenerate into a superficial question of whose side are you on. It must be an accounting of its very doctrines to ensure that these adhere to the principles the President, Congress and the only boss believe our nation stands for. As Stanford Dean Larry Kramer cautioned: To nudge popular institutions out of the life of the Constitution is to impoverish both the Constitution and the republican system it is meant to establish. Oscar Franklin Tan was chair of the Philippine Law Journal in 2005 and student speaker at his 2007 Harvard Law School graduation. He twice won the Cortes Prize in Constitutional Law at the UP College of Law.

Accountability Philippine Daily Inquirer 11:49 pm | Friday, December 16th, 2011 26share1605 1577 There is no doubt that we are staring at a constitutional crisis right in the face, said Supreme Court spokesperson Midas Marquez, after the House of Representatives impeached Chief Justice Renato Corona. But on the day Marquez uttered his grave declaration, the Philippine republic seemed none the worse for wear from the supposed titanic and historic crisis it was going through. All three co-equal branches of government continued to operate normallyeven the Supreme Court, which, Marquez admitted, would continue to function regularly, despite the impeachment of the Chief Justice. By sunset of that day, nothing untoward had happened to the state or to its citizens. Whatever large-scale disruption there was would, in fact, occur only the next dayon the Supreme Courts turf, when Marquez, also the court administrator, enjoined everyone in the judicial branch of government to suspend work for the day to listen to Coronas speech decrying his impeachment and vowing to cling to his post by hook or by crook. Among the hearings affected by the court suspensions was the Ampatuan massacre trial. Marquez would subsequently deny that he ordered a court holiday, but an Iloilo judge said he got the call from Marquez himself. In any case, nearly the countrys entire judiciary ground to a halt, with employees of Manila salas even trooping to the Supreme Court grounds to cheer as their embattled chief launched a counterattack against President Aquino and his allies in Congress with a sour, caustic peroration that sounded more like a campaign stump speech, and whose main meatHanda po akong humarap sa paglilitisthe courts could have been told about without them having to go on work stoppage. Incidentally, the high court itself has forbidden government personnel from suspending official work to engage in rallies or politically related activities. Surely this counted as one. But for the Chief Justices sake, one supposes, a creative reinterpretation of the law was again in order. The anomalous court holiday derives from the same hubristic mindset that informs the so-called constitutional crisis Marquez troubles his head with: the idea that the Supreme Court is Corona, and Corona is the Supreme Court, and any attack on the Chief Justice is therefore also an assault on the Court and the branch of government it heads. Make no mistake, said Marquez, this is an assault not only on the person of Chief Justice Corona, not only on his office, not only on the Supreme Court. This is an assault on all the rights, powers and privileges of the entire judiciary. Corona himself, unperturbed by any scintilla of humility or circumspection, has no problem proclaiming that he and the office he holds are indeed one and the same: I am here. I am not going anywhere. I am your defender and most of all I am your Chief Justice. Together we will face these challenges and fight all who dare to destroy the Court and our system of justice under the Constitution. Ah, the Constitution. Its a good thing Corona mentioned it, because nowhere in that document does it say that any government official becomes one with the office he or she holds, and that that government official may be removed from office only at the risk of damaging the office itself. When President Joseph Estrada was impeached by Congress, did the nation hear him complain that the onslaught against him was an assault on all the rights, powers and privileges of the presidency? Even Estrada wasnt too dumb to claim that. The Constitution, in fact, lays out the opposite spirit. All government officials, whether elected or appointed, are accountable for their actions, and successful enforcement of that accountabilitythrough constitutional offices such as the courts, the Office of the Ombudsman, the Sandiganbayancould only disinfect and strengthen the offices defiled by their wayward personnel. But, since the Chief Justice cant be sued in his own court, the Constitution mandates one avenue by which to enforce accountability on him: impeachment. Loud and clear. When hard questions, then, are asked of the nations chief magistrate, when he is asked to explain himself on matters where his fairness, impartiality and fidelity to the oath of office he took are perceived to be in doubt, why should that be, necessarily and automatically, an assault on his office and the entire judiciary itself? Coronas impeachment is about Corona alone. He and his office are not one and indissoluble. To claim otherwise is the height of delusional conceit.

WhattoexpectintheCoronaimpeachment By: Fr. Philippine Daily Inquirer Joaquin G. Bernas S. J.

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3:42 am | Monday, December 19th, 2011 1share1 0 It has frequently been said that the impeachment process is a numbers game where the vote is along party lines. This has been verified historically. Partly for this reason no president of the United States or of the Philippines has been convicted via impeachment. To my knowledge, moreover, no justice of the Supreme Court has been convicted via impeachment. An attempt to impeach Associate Justice Samuel Chase was launched from the White House on the ground that Chase allowed his political leanings to affect his decisions. (Incidentally, as in the complaint against Chief Justice Renato Corona, there were also eight counts in the charge against Justice Chase.) The impeachment fizzled out. The dictum that impeachment is a numbers game is especially true when the partisan alignment in Congress is clear. Thus no one need be surprised at the swift and overwhelming approval of the impeachment complaint against the Chief Justice, especially since, with eight points in the complaint, each member of the House had a smorgasbord to choose from. It may be too early to evaluate the real consequence on the entire Judiciary. Instilling the fear of the Lord is not bad in itself, if the Lord is perceived to be fair. And, indeed, the Judiciary as it stands today can stand some shaking. The sentiment is widely accepted that there still are in the Judiciary sour apples who, if baked, will not make a tasty apple pie. But it cannot be denied that what is happening now can have or may already be having a chilling effect on the more pusillanimous among the good apples. Fortunately, the numbers game analogy may not be easy to apply to the Senate composition today. The Senate will try the case. The alignment in the Senate is not easily figured out and there are tried and tested statesmen in the Senate who can influence the novices. We can therefore have a decision that is clearly based on the merits. In fact, part of the reason why the outcome in the House was so swift could be the realization by the members that they were not making the final vote. They could pass the headache on to the Senate. That is where it will be and the senators are ready with their robes! The impeachment process is a legitimate tool found in the Constitution. Its general purpose is to rid the government of people who do not deserve to be in high office. For this purpose and in order to avoid a general bloodbath, it is meant to be carefully focused on individuals. From what I have seen in the charges made against the Chief Justice I can find charges that indeed are focused on him alone. But a good number of the charges are based on his vote in majority collegial decisions of the Court. Congress members and the Palace can deny until they are blue in the face that the target is the Supreme Court as a body, but the complaints tell us that some of them are clearly aimed at collegial decisions. That the target is not just the vote of the Chief Justice but also of the body is also borne out by the broad claim made on television by the chair of the House committee on justice that Congress can discipline justices. Discipline them for treason, bribery, graft and corruption, culpable violation of the Constitution, other high crimes or betrayal of public trust, yes; but not for collegial decisions with which the Congress disagrees. I shall not attempt to evaluate the merit of each of the eight points in the complaint. That is the heavy responsibility of the Senate. The Senate will evaluate each of them to determine if any or all of them can convincingly fall under the allowable grounds for conviction, namely treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. It is the Senate, and not the Court, which decides what these grounds for conviction via impeachment mean. The Court itself has said as much in an earlier impeachment case. The Court can only review whether the constitutional procedure has been followed. In evaluating the charges, will the Senate apply the rule, among others, of ejusdem generis? This rule says that undefined elements in an enumeration must be read as qualified by the defined elements. Concretely this means that when there is allegation of graft and corruption or culpable violation of the Constitution or betrayal of public trust, the allegation cannot be of merely venial offenses but must be of offenses comparable in gravity with treason, bribery or other high crimes, offenses which strike at the very life of the nation. This will be for the Senate to decide. Moreover, the Senate also decides the quantum of evidence needed to convict. Impeachment is not a criminal process which needs proof beyond reasonable doubt. There is another point that must be remembered. Impeachment is not just a legal exercise. It is also a political exercise, that is, a policy exercise. If judgment on impeachment were exclusively a legal exercise, it would have been entrusted to the courts. But since it is also a policy exercise, judgment on impeachment has been given by the Constitution to a policymaking body. Hence, when the senators vote, they will be voting not just on the validity of the charges but also on their perception of what is best for the country. That requires the wisdom of a statesman.

Proper perspective A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated December 19, 2011 12:00 AM Comments (7)

The raging word war on the Corona impeachment should be viewed in its proper perspective for a better understanding of the issues involved and for the shaping of a clear and correct public opinion. A proper perspective is necessary because impeachment is a political process where the Senator-Judges who will try the case may be influenced in making their decision, one way or another, by the alleged voice of the people. With a public trial fully covered by media like the previous Estrada impeachment case, and in view of the forthcoming elections, our Senators would naturally try to ensure that all their actions on the case get a high public approval rating. For a proper perspective, we should first of all look at the impeachment case on the basis of the principles rather than leading personalities involved. This is not a fight between a highly popular PresidentAquino and a very unpopular ex-President Arroyo or Corona who has been perceived and branded as partial and subservient to Arroyo based on his track record in public service especially in the Supreme Court as Justice and later on, as Chief Justice (CJ). This is not a case of if you are not with me or follow what I want to do, you are already against me. Thus the mere fact that nine of PNoys Liberal Party members in the House of Representatives did not sign the Articles of Impeachment and join their 188 colleagues does not mean that they are already against PNoy and his determined fight against graft and corruption. Obviously they just would like to

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have more time to ensure that the complaint is based on solid grounds and that the allegations therein are true and correct of their own personal knowledge or based on authentic records. Espousing principles different from PNoy and his supporters in the Lower House on how to initiate the impeachment of Corona does not necessarily mean having personal differences with, or going against him and his seemingly noble intentions. Unquestionably, PNoys determination to fulfill his campaign promise of cleaning and reforming thegovernment has the admiration and full backing of the citizenry. No one is actually against him in this campaign except perhaps those already addicted to graft and corruption Indeed his intention to prosecute Arroyo and to remove other officials like Corona who is perceived to be putting stumbling blocks on achieving his goal appear sincere and should thus be supported. But it does not mean that others who express contrary views or hurl criticisms against some of his moves or on some of the means he used in implementing his noble intentions, are already going against him and favoring Corona. They are merely pointing out some of the possible adverse effects of his moves against Corona especially on some basic principles like the separation of powers and systemof checks and balances. They are doing this because they want him to succeed in his crusade. In effect, they are more concerned on the principles rather than on the personalities involved because they dont want him to fail in his bold, unprecedented but dangerous move of reforming even the Judiciary which is an independent branch of government. Secondly, for a proper view of the impeachment case, the decisions of the SC as a collegial body should not be viewed as the decision of Corona. Citing some of them to charge Corona with betrayal of public trust is quite erroneous and misleading. Coronas opinion on a case is his alone and merely constitutes a single vote in the SC which decides en banc or in a division of five justices. A majority of the members sitting en banc constituting a quorum (8 Justices) or at least five (5) votes are needed to arrive at a decision on the issues in a case; while at least three are needed to decide a case in a division. Coronas opinion may or may not coincide with the majority. If it does then it becomes the decision of the SC. If it does not, then it is merely a dissenting opinion. Thirdly, for a proper perspective, it must be pointed out also that the SC decision in a case involves an interpretation of the applicable law. In the allocation of power among the three main branches of the government, this power to interpret the law belongs to the SC. Ofcourse, human as all the justices are, the SC may also err in its decision. Hence there are a number of cases where the SC has reconsidered and reversed its own decisions as there are number of cases where it has been attacked and criticized for its erroneous and flip flopping rulings. And there is nothing wrong with such practice. Everyone really has a right to criticize and assail the decision. But this is not the case with respect to the Corona impeachment. Here, the members of the Lower House are virtually telling the SC, a co-equal branch of government, that your interpretation of the law is not similar to our interpretation and not to our liking. And so we have to remove your Chief Justice in the exercise of our power of impeachment. Viewed from this perspective, the removal of Corona on the ground of betrayal of public trust may therefore result in the encroachment of the judicial power by the legislative and the executive department. This is not good for our justice system. It further erodes the peoples trust and confidence on the primary institution where they expect to get justice. Of course, like the other branches, the Judiciary also needs reforms. Coronas appointment as Chief Justice really looks as dark as midnight and he may really be a stumbling block to PNoys moves against ex president Arroyo in pursuit of his promised reforms. Indeed his trust rating is the lowest among the three heads of the different branches. It is due to several factors affecting his credibility rather to specific acts constituting betrayal of public trust. It may be a reason for him to consider resigning but not a ground for his impeachment and removal.

Dangerous signs A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) Updated December 16, 2011 12:00 AM Comments (4)

The problem with the impeachment of Chief Justice (CJ) Renato Corona by 188 members of the House of Representatives apparently lies not on its legality. Basically, it is in accordance with the provisions of Constitution on Impeachment. There is no question that impeachment is initiated exclusively by the House of Representatives (Section 3 (1) Article XI, Philippine Constitution). It is also unquestionable that Justices of the Supreme Court, including the Chief Justice are among impeachable officials (Article XI Section 2, Philippine Constitution). Our Constitution likewise provides that a verified complaint or resolution of impeachment by at least one-third of the members of the House of Representatives already constitutes the Articles of Impeachment which may be filed in the Senate for trial on the merits even without prior referral to the proper House Committee (Section 3 (4) Article XI). But there are various circumstances surrounding this move of our honorable Congressmen/women which have dire and serious consequences to our democratic and republican State founded on the observance of, among others, the principle of separation of powers, the system of checks and balances and that ours is a government of laws and not of men.

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Impeachment is really an extraordinary process of removing public officials occupying high positions in government specifically the President, Vice President, Members of the Supreme Court (SC), Members of the Constitutional Commissions and the Ombudsman (Section 2 Article XI). Our law on impeachment is actually patterned after the American Law which considers it as a remedy against executive tyranny for offenses which by nature may be denominated political as they relate chiefly to injuries done immediately to society. It is a method of national inquest into the conduct of public men (See The Federalist Nos. 65 and 85). Hence the process is essentially political in nature as a check by one political branch of government (the Legislative) on another political branch (Executive headed by the Chief Executive). Here, the political game of numbers actually comes into play. Being political in nature, it must be used against the members of the SC which is a co-equal, independent branch of government that is not directly involved in politics, with extreme care and caution so as not to destroy the peoples trust and confidence in it as an independent body tasked with upholding the law and dispensing justice. Apparently this was not observed in the impeachment of CJ Corona. The blitzkrieg style of initiating the impeachment and getting the signatures of 188 Congressmen/women is already a clear indication of irregularity in the process. Apparently, the signatories did not devote enough time to study the charges and the evidence supporting them. The clear perception is that partisan politics played a great role in obtaining the signatures. In fact some party members who did not sign were stripped of, or resigned their positions as heads of juicy committees. There are even reports, and I hope it is not true, that it was only after impeaching CJ Corona, that they started to take a closer look at the charges and to gather evidence supporting them. Indeed, according to reports the verification of the Articles of Impeachment is even defective because the signatories did not actually declare under oath that they have read the contents of the complaint and that the allegations therein are true and correct of their own personal knowledge or based on authentic records. Certainly this is not the proper way to exercise the power of impeachment against the SC CJ which is a delicate and serious task that has far reaching effects on a democratic and republican form of government. But more disturbing and chilling here is that emotion rather than reason seem to have played a bigger role in the impeachment move. Reports say that the members of Congress initiated the CJ Coronas impeachment to appease an angry President Aquino who had earlier openly and frontally criticized Corona during the National Summit on Criminal Justice held at the Manila Hotel for putting up the baricada (roadblocks) to his promised reforms in government particularly on his administrations actions against ex-president Arroyo. He has branded Corona as a staunch pro-Arroyo SC Chief Justice as manifested in several SC decisions the latest of which is the granting of TRO in favor of Arroyo and husband Mike without hearing the government side first in order to give them an opportunity to escape prosecution. Indeed the first ground of the impeachment complaint against Corona is betrayal of public trust through his track record marked by partiality and subservience in cases involving the Arroyo administration from the time of his appointment as Supreme Court justice which continued to his dubious appointment as a midnight chief justice up to the present. Another dangerous sign in this latest shocking and unexpected turn out of events is the seemingly overwhelming influence of P-Noy over the members of the Lower House. The current picture shows a Chief Executive practically using the Lower House of the Legislative branch of government to impeach the Chief of the Judicial branch of government. In effect the Chief Executive is indirectly exercising the impeachment power that belongs to the Legislative branch. Obviously the separation of powers has been subverted and the systemof checks and balances has been upset. But the most dangerous sign of all is the appeal to the emotion of the people in order not only to remove the incumbent CJ but more importantly to put pressure on the other SC justices in making politically correct decisions. Undoubtedly a great number of Filipinos still harbor a deep resentment against Arroyo. The peoples seething anger against the past administration for the misdeeds committed with impunity is only coming out now. This is apparently being exploited in the impeachment of Corona. He is repeatedly being depicted as a dyed in the wool pro Arroyo SC justice, so that people will also be mad at him as they are mad at Arroyo. In fact media surveys invariably show a big percentage of the populace approving his impeachment. There is a great possibility therefore that his removal from office will be decided by the popular sentiment rather than by the evidence presented. If this happens, then all the other SC justices will be frightened half out of their wits to write what they truly feel should be the proper decision according to law and the facts because they are afraid that if the issue is politically incorrect decision they might be threatened also with impeachment as SenatorMiriam Santiago aptly put it.

ImpeachmentisaPurgingProcess By: Jose Philippine Daily Inquirer 11:16 pm | Thursday, December 15th, 2011 1share24 20 Impeachment is a process provided by the Constitution to remove Presidents and Chief Justices. When an impeachment happens, there is disruption, the kind that triggers dramatic and unexpected change. I am happy that the situation is bringing us towards drastic change. Nothing less can reverse the endemic corruption and massive poverty afflicting the Philippines. The impeachment of Chief Justice Renato Corona is a welcome development. It affirms that co-equal heads can both be vulnerable to impeachment. Even the bid to impeach P-Noy by a lawyer known to be a Marcos loyalist can remind us that there are crucial unresolved issues concerning that dictatorship and the effort to extract justice for its victims. Corona is seen as a puppet of Gloria Arroyo just as Lozano is to the Marcoses. It is good to see where lines are drawn, where Filipinos can choose to be with or against. Even more welcome is the first show of support by judges and court employees for Corona. We have paid so much attention to the corruption in the executive and the Legislative over the decades that the corruption in the Judiciary has been put in the back burner. Yet, the view of many Filipinos, if not most, is that the justice system, meaning judges and justices, including the Supreme Court, are themselves badly tainted. Ma. Montelibano

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Change can now be focused on the Judiciary as well. That makes all three branches truly co-equal when change can target all of them especially on the issue of corruption or its promotion and protection. I can remember from my boyhood the accusations and allegations against presidents and senators and congressmen. Well, today offers an opening for change that is rare. Constitutions do not determine what is right and wrong, human conscience does. Laws cater to what people believe is right and deter what people believe is wrong. Constitutions spring from the aspirations of citizens for security, for justice, for a bright future. What is constitutional cannot veer away from the common good as expressed by the people themselves. The weakness of the Constitution of the Philippines, all versions of it, is that the majority of Filipinos have never read it, were not party to its formation, and cannot possibly understand the letter of its provisions. The strength of a democracy, however, is not in its Constitution. It is in the value system that is most acceptable or inspiring to the people if such is reflected in the Constitution. More than laws, it is values that are most relevant to members of a society. It is values that determine daily behavior, and values that dictate collective standards. From these values are formed the ethics of work, the ethics of business, the ethics of professions. What is beautiful about impeachment is that it is a political process as much, or even more, as it is a legal one as well. Being political gives Filipinos a chance to participate. If it were just legal, how can citizens get involved? I remember that an impeachment trail was going on and affected Filipinos so much that they took to the streets when they thought that numbers would be more important than what was true, what was fair. Impeachment can lead to people power if it is abused. Corona can be removed if the impeachment process finds enough senators voting that way. But so can P-Noy. Estrada was impeached by a Congress where he had the majority in support of him. People power is the ultimate arbiter, not the Supreme Court. In the cases of Marcos and Estrada, the Supreme Court was not the source of change, just a bystander to it. Its greatest participation was its Chief Justice swearing in the new president. The impeachment of Corona will focus on his character, on his integrity, on his subservience to Gloria Arroyo. In his fighting speech the other day, Corona claimed P-Noy wanted to appoint his own Chief Justice na hawak niya sa liig. He did not mention that the opposition to his appointment was based on law governing midnight appointments. Trying to justify why a law can be subverted to accommodate his appointment is more difficult than to accuse P-Noy of being partisan. Corona will have to do better because that glaring accommodation will be a central public focus. It will do Corona good to prepare to justify the Supreme Courts decision to protect one of their own who was accused of plagiarism and could not find a valid reason for such dishonesty except to claim he meant no malice. Who is more dishonest, the thief or the court which declares him innocent of theft because he meant no malice? And Corona will have to contend with the distrust of Filipinos for Gloria Arroyo whom he is being accused of protecting more than the Constitution. Gloria Arroyo is not just unpopular; she is suspected or judged to be a liar, a thief and a cheat. This judgment has been reflected in surveys over several years and could possibly be the strongest reason why Filipinos voted for a candidate who, in their eyes, will not lie, will not steal, will not cheat. On the other hand, P-Noy must run to the people, to his boss, and not depend at all on the superior numbers of the Liberal Party and its allies in Congress. If P-Noy is anchoring his move against Corona on his crusade against corruption, the people will support him. But if he is seen as simply using politicians against a Chief Justice, he will lose the high ground and it will devolve simply to numbers more than nobility. There is no Constitutional crisis, only a moral and ethical one. Impeachment is a purging process, and there is so much need for it. Most nations became one and strong because they went through and survived great conflict. This may be our moment.

SavetheConstitutionfromtheCourt By: Raul Philippine Daily Inquirer 11:25 pm | Thursday, December 15th, 2011 8share104 94 We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. . We want a Supreme Court which will do justice under the Constitution and not over it. These words were uttered not by President Benigno Aquino III in 2011, but by US President Franklin Delano Roosevelt (FDR) in a fireside radio broadcast in 1937. The alarmists amongst us dont remember much, and that is why their logic is bizarre. The Supreme Court hurriedly issues a TRO that would let Arroyo evade Philippine justice, and they chant Hallelujah, the rule of law has triumphed! Congress hurriedly uses its constitutional power to impeach, and they cry bully and dictatorship. We forget our history. One. It is not true that this is all unprecedented. There had been an earlier showdown under the 1987 Constitution between Malacaang and the Supreme Court where the Court was seen as an obstruction to the Palaces chosen policies. It was President Fidel Ramos versus the Narvasa Supreme Court. Ramos wanted to liberalize telecommunications in the country but the old PLDT monopoly stood in the way. The Court reversed itself only after the ponente of the pro-monopoly decision was forced to resign by an expos charging that it wasnt he who wrote the verdict. And the proof? A foreign English professor said the writing style wasnt the justices usual! Now you tell me. Will that kind of flimsy evidence thrive had they gone through a proper impeachment? Would todays critics prefer the stealth and subterfuge of that attack, and the injustice of that forced resignation? Two. President Aquino certainly isnt wanting for precedent in his public harangues. Last year, Barack Obama himself denounced the US Supreme Court in the presence of several justices for their ruling in Citizens United v. Federal Election Commission, that open[ed] the floodgates for corporate spending in electoral campaigns. Chief Justice John Roberts said he found it all very troubling, lamenting the lack of courtesy and respect. President Aquinos in-your-face lambasting might be a bit too forward for our tastes, but would you prefer the facelessness of the phantom enemy that the Narvasa Court had to battle? Three. Will this lead to a Court subservient to Aquino? Not necessarily so, and P-Noy can take a leaf from FDR on this. That same argument was made as well against FDRs court packing plan when a conservative US Supreme Court blocked New Deal legislation, Americas response to the Great Depression: welfare state benefits, minimum wage, maternity leave, overtime pay, etc. It was juristic heresy at that time. Thus FDRs plan where, as allowed by their Constitution, he would appoint an additional justice for every old (and old-thinking) judge who would remain in office after the age of 70. (Congress scuttled the plan but the court soon changed its tune.) C. Pangalangan

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If it is charged that I wish to place on the bench spineless puppets who would disregard the law decide specific cases as I wished them to be decided, I make this answer: that no president fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of [judge]. But if the charge is made that I would appoint [judges] who understand modern conditions who will act as justices and not as legislators then I [and] the vast majority of the American people favor doing just that thingnow. He concludes: This is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of constitutional government . The face-off we now see re-calibrates our separation of powers and restores the executives proper place as the source of leadership. Since 1986, the fall of the dictatorship has fostered a knee-jerk bias against executive power and in favor of judicial checks and balances. But this has led to government by stalemate, the primacy of procedure over results, where due process is misunderstood as endless process. This is the best time to correct that. Cory didnt want to; it was too soon after Marcos. Fidel Ramos preferred to do it behind-the-scenes, efficiently but not institutionally. Erap took to rhetoric, called them hoodlums in robes but didnt stay long enough to disrobe them. Gloria Arroyo alone had the gumption to flex executive muscle upfront; alas she possessed Machiavellian virt but not true virtue. And comes now Noynoy, riding the crest of popularity for his anti-corruption campaign. The real lesson here is that We, the People own this Constitution. The courts do not hold a monopoly over the power to divine its meanings. Holmes recognized that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts. Justice (later Chief Justice) Reynato Puno would say on the impeachment of then Chief Justice Hilario Davide Jr.: The President and Congress also have an obligation to interpret the Constitution. courts listen to the voice of the President and Congress but their voice does not silence the judiciary. (See Oscar Franklin Tan, It is Emphatically the Province and Duty of Congress to Say What Congress Is, 79 Phil. L.J. 39 (2004)). Presidents have an equal duty to develop our constitutional traditions. Abraham Lincoln defied the US courts ruling in the infamous Dred Scott case that upheld slavery, and how! He emancipated the slaves and fought a civil war. The incivility between our political and judicial branches is no great shakes by that standard, but I sure hope it would yield as liberating a legacy.

Only CJ Rene Corona is under fire, not the entire Judiciary AS I WRECK THIS CHAIR By William M. Esposo (The Philippine Star) Updated December 15, 2011 12:00 AM Comments (2) Like a battle plan prepared by the Duke of Wellington who vanquished Napoleon in Waterloo the impeachment of Supreme Court (SC) Chief Justice (CJ) Renato Rene Corona came hours after the besieged CJ rallied his troops in the Judiciary last Monday. Just as your Chair Wrecker had predicted, those December 1 and 5 tirades on the SC and its CJ by President Noynoy Aquino (P-Noy) were but the first volleys fired and more salvos were to be unleashed. Last Monday, December 12, 188 Congressmen led by House Speaker Sonny Belmonte sent to the Senate the impeachment complaint against CJ Corona. Per Rep. Niel Tupas Jr., House Justice Committee Chairman, CJ Coronas impeachment was based on the following grounds, as enumerated by the GMA Network website: 1. Partiality and subservience in cases involving the Arroyo administration; 2. Failure to disclose to the public his statement of assets, liabilities and net worth (SALN); 3. Issuance of flip-flopping decisions in final and executory cases; 4. Issuance of the status quo ante order against the House of Representatives in the case concerning the impeachment of then Ombudsman Merceditas Gutierrez; 5. Decision in favor of gerrymandering in the cases involving the 16 newly-created cities, and the promotion of Dinagat Island into a province; 6. Granting temporary restraining order in favor of former President Arroyo; 7. Failure and refusal to account for the Judicial Development Fund (JDF) and special allowance for the judiciary collections; and 8. Since the impeachment complaint was supported by more than one-third of all House members, it will be transmitted straight to the Senate for trial once the House approves it on the plenary. Atty. Midas Marquez, the CJs mouthpiece and defender, tried to make an issue of the sending of the impeachment case to the Senate sans approval by the House Plenary. He accused P-Noys House allies of railroading the impeachment process. Was it ignorance that prompted Marquez to cry railroad when the law clearly states that one-third of the House can forward to the Senate an impeachment complaint without having to go through the Plenary?

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More than one-third (95 votes) of the House had signed the Corona impeachment complaint 188 in all. Or was his statement a desperate propaganda maneuver to try to discredit what is a legal process? Marquez should stick to reporting faithfully the developments in the SC, a task that he bungled when he announced the status of the controversial TRO (Temporary Restraining Order that would have allowed GMA to travel) after its first hearing. Justice Tony Carpio had snapped at Marquez to tell the truth. Its expected that CJ Corona will attempt to defend himself and try to refute the issues being raised against him. However, CJ Rene Corona has no business making his impeachment appear as an assault on the entire Judiciary. Only CJ Corona is under fire and for specific issues but not the entire Judiciary. In his WE STAND TOGETHER speech last Monday, CJ Corona said: I want all of you to know that your Chief continues to be in command and will lead the fight against any and all who dare to destroy the Court and the independence of the Judiciary. We do not want to see a constitutional crisis befall our democracy, but if we are challenged to defend our independence, we shall not meekly walk away. We must keep our guard otherwise the enemies of the Court will surely take advantage of our good faith, the besieged CJ said. I do not intend to leave you to fight this battle alone, he added. Its precisely the questions about the CJs partiality favoring the cases of GMA that caused his impeachment. Those who want to impeach Corona are merely seeking reforms in our Judiciary. Corona is reversing the issue and is dragging the Judiciary into his fight. Corona says that he doesnt want to provoke a constitutional crisis but that will happen if the Judiciary follows the CJs suggestion and joins the fight. Do they think that they will win when a constitutional crisis has been created and extreme situations unfold? Have they bothered to see the public pulse, how many Filipinos want to see CJ Corona impeached and GMA jailed for all the transgressions she committed when she was president. Even the once highly regarded Fr. Joaquin Bernas, SJ had lost a lot of fans when he started favoring the GMA side of this SC issue, even likening P-Noy to a broken record for the relentless assault on the CJ. Puzzled why this is now a different Fr. Bernas speaking, many in the social networks were asking if the marriage of his favorite nephew to Lulli Arroyo has affected his views? Lets pray that CJ Coronas Ignatian values will guide him to make the right decisions. CJ Corona should remember the lessons Ateneans learned from the lives of Saints Thomas More and Thomas Beckett public officials who sacrificed their lives in order to serve God. Saint Thomas Beckett is a most appropriate role model. Appointed by Englands King Henry II as Archbishop of Canterbury, Thomas Beckett refused to serve the kings agenda when it conflicted with his commitment to God. Folly FIRST PERSON By Alex Magno (The Philippine Star) Updated December 15, 2011 12:00 AM Comments (8)

We all know, from unending repetitions of Lord Actons dictum, that power corrupts. We are less aware that it breeds folly; that the power to command frequently causes failure to think; that the responsibility of power often fades as its exercise augments. Barbara Tuchman, The March of Folly During moments when our politics becomes incomprehensible, I pull out Barbara Tuchmans classic The March of Folly from my shelf. It is among the most precious books I keep. I strongly suggest the President and his hangers-on read this masterpiece. Tuchmans book is a breathtaking scan of history, examining those key points when acts of folly by those who exercised power drastically changed the course of events. It examines, among many other things, why the Trojans dragged that funny wooden horse into their fortifications; why Montezuma, whose fierce warriors outnumbered the conquistadores a thousand to one, lost the battle; why the pig-headedness of the Renaissance Papacy sparked the Reformation; why Israel lost 10 of its 12 tribes; why the British kings decision to use cruelty instead of conciliation resulted in the loss of the American colonies. By all the cases studied in this great work, one might conclude that folly on the part of those who wield power is the historical rule rather than the exception. Americas second president, John Adams, once rued: While other sciences have advanced, government is at a stand; little better practiced now than three or four thousand years ago. Folly is the only word that describes this mad obsession with impeaching the Chief Justice for the most precarious of reasons. Whatever the outcome of this effort, it will leave our institutions devastated and our politics deeply polarized, driven by the obscene dynamic of hate and bitterness.

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The setting for this effort is not reassuring. A popular President, constantly deciding on the side of what is popular, tries to sustain his legitimacy through a constant campaign against his unpopular predecessor. That sets him on a course defined by hubris. Recall this character named Adolf Hitler. He was neither particularly brilliant not constantly lucid. However, he had a knack for blaming all the bad things on a pantheon of scapegoats. That enabled him to be quite popular with his distressed people, at least before he began destroying a whole continent and almost eradicating a whole race. He used his popularity to scuttle his nations republican institutions. Recall this man Mao Tse-tung. From the late fifties to the early sixties, this revered liberator of his people pursued a destructive economic program called The Great Leap Forward. About 20 million of his people died from the famine this caused. Threatened with disenchantment within his own party and government, Mao unleashed his fanatical Red Guards on the establishment, taking down institutions and persecuting intellectuals. It took two generations for China to recover from the damage this episode caused. The method by which this impeachment effort was launched is not too comforting either. Palace spinners might vainly try to convince us the President did not initiate this alarming effort. Well, Hitler did not personally burn down the Reichstag either. Two weeks ago, the President went on a verbal rampage attacking the Chief Justice. Last week, during the Liberal Partys Christmas Party, the President made the signals very clear. His operatives went to work immediately, encouraged perhaps by the facility with which they were able to force Ombudsman Merceditas Gutierrez to resign through sheer political bullying. Last weekend, the Presidents supporters at the House held a caucus. By Tuesday, 188 congressmen, none of whom read the articles of impeachment because they were not yet printed, lined up to sign the same, sight unseen. The process was so scandalous two stalwarts from the Presidents own coalition Deputy Speaker Boying Remulla and Rep. Toby Tiangco refused to sign. Both publicly decried what they basically describe as railroading. Tiangco was immediately maligned by Aquino loyalists as a turncoat and subsequently resigned from the majority coalition. The House of Representatives is often described as the larger but lesser chamber because of its perceived record of political prostitution. That derogatory perception was just reinforced this week. Its institutional independence has again been compromised. A war between the branches of government has now broken out. With the filing of the impeachment complaint, this war has now moved beyond mediation. It will only conclude with the victory of one and the defeat of the other. Whoever wins and whoever loses, our republican democracy is unhinged. The onus now falls on the Senate, which must now function as an impeachment court. It is a chamber rife with political ambitions of every sort. Any decision it renders will be read as partisan every which way. Should it convict the Chief Justice, this will be read as an act of political accommodation to an unfortunately popular President. Should it acquit, even with the volume of reason to do so, this will be interpreted as a coup of sorts because it will immediately reduce the incumbent Chief Executive into a lame duck. Meanwhile, the rank and file of the judiciary is rallying around the Chief Justice, who has made this an issue of judicial independence. The independence of this branch of government has already been threatened by impoundment of its budget. If the Chief Justice is taken out in this most partisan process just begun, everyone on the bench will be vulnerable. The next few months we will have hyper-politics galore as the economy weakens, business sours and the poor multiply. The march of folly continues.

Separationofpowers By: Randy Philippine Daily Inquirer 11:43 pm | Wednesday, December 14th, 2011 2share36 33 David

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That photo showing President Aquino meeting with his allies in the House of Representatives just after a majority of its members signed the impeachment complaint against Chief Justice Renato Corona might at first glance give the impression of a conspiracy hatched by two branches of government against one. Clearly, there was coordination between the two, but not a conspiracythey are not hiding it. Both the President and the leadership of the Lower House appear to be taking full responsibility for their actions. These are not without risks: If the public disagrees with them, they will be punished in the next elections. If they take legal shortcuts, they will be stopped by the Supreme Court. That is how the system works. It is not the first time that a chief justice of the Supreme Court has faced impeachment. In June 2003, former President Joseph Estrada, who earlier had been ousted from the presidency, filed impeachment charges against Chief Justice Hilario Davide Jr. and seven associate justices of the high court. The House dismissed the complaint for being insufficient in substance. Four months later, in October 2003, young legislators from the Nationalist Peoples Coalition (NPC) led by Gilberto Teodoro Jr. and Felix William Fuentebella filed another impeachment complaint against Davide. This time, the complaint carried the signatures of more than one-third of the House members, the minimum number needed to send a complaint to the Senate for trial. Despite the numbers, Davide was not impeached. The case never reached the Senate. Before the resolution could be formally transmitted, the House adjourned for more than two weeks, allowing Davides lawyers to go to the Supreme Court to question the complaint on constitutional grounds. The challenge was anchored on the constitutional provision that permits only one impeachment proceeding to be initiated against a public official within one year. Defenders of Congress, in turn, raised the issue of separation of powers, arguing that the high court should restrain itself from ruling on the petitions because they involved a political question beyond the scope of its powers. The Court went ahead and recognized the petitions, dismissed the political question argument, and ruled that the filing of the second impeachment case against Davide was unconstitutional for being filed within the same year as the first. We came close to a constitutional crisis that year. The magistrates of the Supreme Court asserted their power of judicial review, while the members of Congress insisted on their political prerogative to impeach erring public officials. Then President Gloria Macapagal-Arroyo initially distanced herself from the controversy. But, later, seeing where public opinion was going, she went to a prayer rally for the beleaguered Davide in front of the Supreme Court to signal her sympathy for the man who had sworn her into the presidency at the height of Edsa 2. The high courts decision turned out to be beneficial to her when it was her turn to fight the impeachment complaints filed against her. These were all dismissed on the same technical ground that only one complaint could be initiated against the president within a year. Every year, her people made sure that a bogus complaint, working as a vaccine against impeachment, would be filed ahead of everyone elses. But it was not technicality that saved the day for Davide as much as public opinion itself. Davide enjoyed a reputation as an honest, competent and fair public servant. It was President Cory Aquino who appointed him as a member of the Supreme Court in 1991. He had served in the Court for seven years before President Estrada named him chief justice in 1998. Setting aside all personal debt of gratitude, he presided with admirable impartiality over the impeachment court that tried Estrada in December 2000. The Ramon Magsaysay Awards Foundation recognized his qualities as a public servant in 2002 by conferring on him the distinguished award for government service. His detractors in the Lower House who accused him of misusing the Judiciary Development Fund found themselves at the receiving end of public opinion. The public questioned their motives. In the end, disputes of this nature are settled on the basis of public trust, which is not the same as being merely popular. Popularity can win votes, but only trust can confer respect. Trust is also different from legality. Legality can win cases or keep a man out of prison, but it will not necessarily earn him public esteem. As Chief Justice Renato Corona ponders his current situation, it may be useful for him to ask whether, beyond the legal arguments at his disposal, he could call upon a reserve of public esteem to help him fight his battle. He will need it. For impeachment is not just a legal battle; it is also very much a political one precisely because the question of public trust lies at its core. This is different from the way the Supreme Court should work, where only facts and norms must reign, and the political must be kept out. The German political theorist Carl Schmitt once wrote: All significant concepts of the modern theory of the state are secularized theological concepts. There is thus nothing weird about separation of powers; it is borrowed from the religious idea of the Trinity. Three co-equal branches of government exercise public power, each according to its distinct mandate. Yet, sovereign power comes from only one source: the people.

WhenthePresidentcriticizestheSupremeCourt By: Randy Philippine Daily Inquirer 11:09 pm | Wednesday, December 7th, 2011 66share3697 3610 In a political system like ours where governmental power is exercised by three co-equal and autonomous branches, disagreements are to be expected. That is how the system works. Each branch of government functions as a check on the others. But the manner in which this check is to be carried out varies from one branch to the other. The legislature can impeach a president or a justice of the Supreme Court. In turn, the Supreme Court can restrain any action of the legislature or the executive. Wielding the power of the purse, the executive can trim the budgets of the other branches, or delay the release of allocations. But, again, actions of the executive can be questioned by the legislature or before the courts. David

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In many instances, we may hear a president criticize Congress for not acting fast enough on priority measures like the budget. But, it is not often that we hear a president publicly criticize Supreme Court justices. I suppose this is because we put magistrates, especially of the highest court, on a pedestal, as an expression of our commitment to the rule of law. In return, we expect justices to stay above politics and to manifest virtue in their personal lives. Staying above politics, however, has not been easy, particularly for the justices of our Supreme Court. Each one of them is appointed by the president based on a list submitted by the Judicial and Bar Council. In a society like ours, debt of gratitude to the appointing authority cannot be ignored. Often, it outweighs professional considerations. This is even more so when the appointing authority handpicks choices for sensitive positions with an explicit eye for their proven personal loyalty. In modern societies like the United States, Supreme Court justices are chosen not only for their sterling professional qualifications but also for their perceived ideological leaning. Although the latter is neither officially avowed nor required, people do take it into account when they assess the suitability of a nominee. We dont do that here. For us the main concern is always the capacity of an appointee to rise above personal gratitude and affinities. This reflects an acute awareness of the persistent dangers posed by personalistic norms to modern institutions. At no other time in our nations history, except perhaps in the period of martial law, were our institutions more engulfed by politics than during the presidency of Gloria Macapagal-Arroyo. This stemmed from her dubious accession to the presidency in 2001 after the ouster of the duly-elected president, Joseph Ejercito Estrada. The Supreme Court found a way of legalizing the removal of Estrada, but Arroyo continued to be beleaguered by challenges to her legitimacy. Instead of putting these challenges to rest, the massive fraud that attended her reelection in 2004 only further weakened her claims to the presidency. As a result, throughout her term, she became preoccupied with political survival and acceptance. Wielding her appointing powers and her broad control of the budget as tools of patronage, GMA generously rewarded political lackeys and apologists with cushy positions in government corporations. She named individuals who had been loyal to her to high offices, including the Supreme Court. She controlled the military by naming favorite generals to senior positions in the armed forces, and by packing the Cabinet with retired military personnel. She dispensed public money like largesse to favorite local government officials. She coddled provincial warlords like the Ampatuans who complied with her every whim by manipulating electoral outcomes. She did not care that what she was creating in the process was a bonfire of the nations institutions. She has much to account for now that she no longer enjoys immunity from criminal prosecution. But having anticipated a moment like this, she had made sure she would be fully covered. She stepped down from the presidency, but retained political power as a member of Congress. People who benefited from her patronage are everywhere, quick to come to her defense. But, in the middle of all her legal troubles, she now finds herself turning as a last resort to the magistrates she appointed to the Supreme Court, most of all, Chief Justice Renato Corona. Coronas midnight appointment by Arroyo was an incredible act of political brazenness. No one believed she would press it. The Constitution barred her from making any appointments, except temporary ones in the executive branch, two months before the next presidential elections until the end of her term as president. The seat of the chief justice would not be vacant until May 17, 2010, or six days after the election, when the new president would have already been known. But Coronas patroness went ahead and appointed him anyway, defying the letter and spirit of the law and going against all the norms of courtesy and delicadeza. Not surprisingly, the rest of the Arroyo court sustained her. It is in the nature of our culture that we bristle at personal slights, but seldom take offense at the systematic damage done to our institutions. P-Noy took a different route the other day. At the great risk of appearing discourteous, he gave vent to his deep frustration with Arroyos magistrates in the presence of Corona himself. It is an encouraging sign that the public seems to side with President Aquino, whose shaking voice betrayed not only anger but a certain discomfort at having to tell people to their faces that they ought to be ashamed of themselves.

InTheKnow:Thepathofimpeachment Philippine Daily Inquirer 1:52 am | Tuesday, December 13th, 2011

UNDER HEAVY FIRE I assure you I do not intend to leave and do as they please, says Chief Justice Renato C. Corona LYN RILLON Under the Constitution, the House of Representatives has the exclusive power to initiate cases of impeachment against the President, Vice President, members of the Supreme Court and constitutional commissions, and the Ombudsman. The Senate, on the other hand, has the sole power to try and decide all cases of impeachment. Impeachable offenses include culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust. Path of impeachment A verified complaint is filed in the House by any member, or any citizen upon endorsement by any member, or a resolution filed by at least one third of all members. It is then referred to the justice committee, which determines if it is sufficient in form and substance. The committee, after hearing, and by a majority vote of all its members, submits its report and recommends resolution to the House. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the members of the House, it will constitute the articles of impeachment, and trial by the Senate proceeds. At least one-third of all the members of the House must vote to approve the articles of impeachment. The Senate sits as a court to hear charges. When the President is on trial, the Chief Justice of the Supreme Court presides but does not vote. On the other hand, the Senate President presides in the impeachment of the Vice President, members of the Supreme Court and other officials. The House of Representatives acts as the sole prosecutor at Senate trial through a committee of eleven members. A two-thirds vote of the senators is needed to convict. What Went Before: Impeachment cases Then President Joseph Estrada became the highest Philippine official to be impeached by the House of Representatives and tried by the Senate. In October 2000, he was accused of accepting bribes, engaging in graft and corrupt acts, knowingly violating the Constitution and betraying public trust. On Nov. 13, 2000, then Speaker Manuel Villar moved to impeach Estrada. No vote was held by the full House on an impeachment declaration. Villar explained that it was unnecessary because 77 of the 218-member House signed the impeachment complaint, or more than the 73 signatures needed.

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But on Jan. 16, 2001, a majority of the senators voted not to open supposed key evidence on Estradas alleged P3.3-billion secret bank account. This brought the impeachment trial to an abrupt end and led to Edsa II, which toppled Estrada and installed then Vice President Gloria Macapagal-Arroyo to the presidency. On Sept. 12, 2007, the Sandiganbayan found Estrada guilty of plunder, but he was pardoned by Arroyo a month later. Other officials faced impeachment complaints. On Oct. 22, 2003, the House dismissed an impeachment complaint filed by Estrada against Chief Justice Hilario Davide and seven other Supreme Court justices for purportedly conspiring and participating in Edsa II. On Oct. 23, congressmen allied with businessman Eduardo Danding Cojuangco signed a second impeachment complaint against Davide, this time for alleged irregularities in the disbursement of the Judiciary Development Fund. On Nov. 10, 2003, the Supreme Court voted 13-0 that the complaint was unconstitutional. Davide retired in December 2005. Several complaints were also filed against then President Gloria Macapagal-Arroyo in the wake of the Hello Garci election fraud scandal. But the House dismissed all complaints that accused her of rigging the 2004 polls, involvement in corruption and condoning human rights violations. In March, the House of Representatives, by a vote of 210-47, impeached then Ombudsman Merceditas Gutierrez for allegedly sitting on complaints against public officials. She resigned before her trial began.Lawrence de Guzman, Inquirer Research

Sovereigntyofthepeople By: Fr. Joaquin Philippine Daily Inquirer 11:41 pm | Sunday, December 11th, 2011 2share40 38 Appeal has repeatedly been made to the will of the sovereign people as guide. Popular sovereignty in fact is the bedrock upon which a democratic system rests. Our Constitution begins with the assertion that The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. The sovereign people assert their sovereignty in two distinct processes. The two processes should not be confused. The first is through their vote in a plebiscite ratifying or amending the Constitution. Through this process the people express in a permanent manner what the powers of government should be, what the limitations are, how the people who are to exercise the powers of sovereignty are to be chosen and what the extent and limits of their power are. As presently found in the Constitution, powers are divided among three departments. Succinctly, this means that the legislature makes the law, the executive implements the law and the Constitution, and the judiciary determines what the law and Constitution mean, thereby achieving orderly checks and balances. The second is through the sovereign peoples vote in an election. This vote is not an unlimited grant of power. Nor is it a grant of power to navigate outside of the limits of the will of the sovereign people as expressed in the Constitution. To assume that an overwhelming vote of the people in an election or a high approval rating in a periodic survey is an expression of popular revision of what they have expressed in a constitutional plebiscite is an invitation to disaster. Government officials have only so much authority as is given to them by law and the Constitution, and not what they might assume to be given to them by popular rallies. A great lawyer once said to a reform-minded English monarch, This country is planted thick with laws from coast to coast. If you cut them down, do you really think that you will be able to withstand the winds that will blow then? True, the lawyer was beheaded later! But the consequences of his beheading confirmed the correctness of his warning. In this critical moment of our constitutional history, my hope is that the justices of the Supreme Court, imperfect though they may be, will not capitulate and that others in the judiciary will not tremble in their boots and yield what is constitutionally theirs to President Aquino. If they do, it would be tragic for our nation. Impeachment. Impeachment is very much in the air. It is a legitimate tool enshrined in the Constitution. But it is a two-edged sword. It can be an instrument of reform but it can also be an instrument of vindictive persecution carried out by blindfolded followers. For this reason the Constitution has surrounded the process with safeguards which limit the number of people subject to impeachment and which makes its success difficult to achieve. The obvious goal of the current move toward impeachment is to scuttle the membership of the Supreme Court and remove the obstacles to progress. The initial target has been revealed, with more expected to follow. But there are 15 justices of the Supreme Court. I am not surprised if the Palace people do not expect impeachment, a very arduous partisan and political exercise, to achieve a pro-Palace Supreme Court. Not in the near future anyway. Hence, another impatient rallying cry is beginning to be heard: Occupy the Supreme Court! Roosevelt tried to neutralize a Supreme Court whom he found to be a stumbling block by trying to pack it with people of his choice. He failed. In the end, Roosevelt had to wait until the retirement of the justices he disagreed with. It did not happen during his term. And to date divisions in the US Supreme Court continue. Count the continuing number of cases where the vote is 5-4. I have been teaching constitutional law long enough to realize that there often are two or more possible sides to a constitutional argument. And the outcome of a constitutional debate often depends upon the modality of constitutional interpretation a justice might use. As one political writer has put it, describing the Supreme Court is like discussing the theories of Karl Marxone has to indulge in half-truths correcting each other and exaggerations of important truths. This is because the Supreme Court is not just a court. It is also a political institution. Because the key provisions of the Constitution are couched in grand ambiguities and because the key provisions concern the larger issues of our life, of our liberties, and of our happiness, the Supreme Court, by the exercise of judicial review, wields tremendous political power. Moreover, the composition of a Court at any given time in history is not just a product of chance. It is the result of a deliberate creation. One only has to look at the confirmation debates and what precedes them in the choice of US Supreme Court justices to see how personal, political and ideological considerations play a determinative role. It is just too bad that we see nothing as thorough in our process of choosing justices. If we did, the Court would now have a different face. What is now referred to as the Arroyo Court took nine years in the making through a selection process heavily tilted in favor of an incumbent president. That tilted process remains, but I doubt that President Aquino will have time, within constitutional limits, to create an Aquino Court during his term. And G. Bernas S. J.

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since so much depends on the outcome of constitutional debates, what is required of him, if he wants the constitutional upper hand without resorting to bullying, is to build a strong, not necessarily loud, constitutional litigation team.

Faceoftyranny By: Conrado Philippine Daily Inquirer 11:11 pm | Wednesday, December 7th, 2011 10share195 179 The justices, says Midas (In Reverse) Marquez, almost walked off the stage when P-Noy was delivering a stinging rebuke of them at the Justice Summit. But they judiciously held their peace. Its not very difficult to do that (rise in protest), but then we dont want the people to suffer. Later, though, the justices issued their own rebuke of P-Noy. While it is the prerogative of the President to speak his mind, they said, we find it quite disturbing (that he should do so) at an event that was meant to foster cooperation and coordination. It is not at all unusual for the executive branch to disagree with the judicial branch. But what is considerably unusual is for the Chief Executive to look down on members of the judiciary in public and to their faces denounce the courts independent actions. Marquez added the Courts favorite mantra: While the Aquino administration was popular, no one branch of government has an overruling influence over the other. The accumulation of all the powers in the same hands, whether one, a few or many, and whether appointed or elected, may justly be the very definition of tyranny. Well, to begin with, if they had walked out of P-Noys speech, the people would not have suffered, the justices would. The people would have cheered lustilynot their gesture of protest but their disappearance from their sight. Which they probably knew anyway, Gloria Macapagal-Arroyos justices, in particular. They are not liked, they are not wanted. They may show their faces before the public only at the publics sufferance, not at their pleasure. You truly wish they had done as they had plotted. Then would they have known exactly in what esteem they are held by us. But of course a branch of government that arrogates all the powers of government poses a tyranny. But Marquez misses his target by a mile. That is not true of P-Noy, that is true of Renato Corona. That is not true of Malacaang, that is true of the Supreme Court. At the very least that is so because there is no institution in society today, let alone branch of government, that is utterly without accountability more than the Supreme Court. Or at least utterly without accountability to the people, Arroyos justices are perfectly accountable to her, being the hand that anointed them, being the hand that feeds them. P-Noy is an elected official, one who won the elections in ways that were not unlike the people exercising People Power all over again. Corona is a midnight appointee, one who got to where he is by imitating his appointers capacity for shamelessly, and illegitimately, clinging to power. Between the two of them, who has the right to wield power to begin with? When government issues a patently unjust decree, the people may challenge it and bring the case to court. When the Supreme Court makes a patently unjust ruling, what can anyone do about it? What can the flight attendants do after the Supreme Court decided to reopen a case it had ruled upon with finality three times in their favor because of a letter from Estelito Mendoza importuning it to do so? Legally at least, the flight attendants know that the resolution of their caseif it ever comes to thatrests on the same Court that has been screwing them. Indeed, when the president issues an unjust decree, the justices may rebuke him by decreeing it unconstitutional. When the Supreme Court makes an unjust ruling, what can the president do about it? Ultimately he has to bring it before the court of last resort, the Supreme Court, which is the same Court that has been screwing everyone. Its a Catch-22. Or a Gordian knot, a puzzle seemingly without a solution. Well, Alexander showed us how to solve a Gordian knot: slice it with a sword. And P-Noy shows us how to deal with Arroyos justices: insult them to their faces. They complain that they have been humiliated before the public because of their independent actions? There is nothing independent about their actions. Being berated like truant schoolboys is the least they deserve. But far more than that, the Supreme Court hasnt just banished accountability from its office, it has banished fallibility from its utterances. The Supreme Court is the new priesthood, a near-mirror-image of the religious one. Until Martin Luther came along, the Church saw itself as the ultimate diviner of Gods will, the sole interpreter of Gods word, as contained in the Bible. Its divinations and interpretations were beyond question. Those divinations and interpretations might little reflect the way people normally saw right and wrong and justice, but it didnt matter. The Church officials themselves might be corrupt to the core, but it didnt matter. Their word was, quite literally, law. Until P-Noy came along, the Supreme Court saw itself as the ultimate diviner of the peoples will, the sole interpreter of the peoples word, as contained in the Constitution. Its divinations and interpretations were beyond question. Those divinations and interpretations might little reflect the way people normally saw right and wrong and justicewhich was the case during Arroyos time, and which is the case up to this time, decreeing as they did the justness of executive privilege and the unreality of Edsa. But it didnt matter. Arroyos justices themselves might be corrupt to the marrow of their bones which was the case then and which is the case now, the poisoned tree bears poisonous fruits. But it didnt matter. Their word was, quite literally, law. But of course a branch of government that arrogates all the powers of government practices tyranny. But of course a cabal that usurps the powers of heaven and earth mounts tyranny. Look at Renato Coronas Supreme Court, and know: That is the face of it. de Quiros

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WhatWentBefore:TheimpeachrapvsJusticeDelCastillo Philippine Daily Inquirer 1:43 am | Thursday, December 8th, 2011 0share8 8 In May, the House of Representatives committee on justice declared an impeachment complaint against Supreme Court Associate Justice Mariano del Castillo sufficient in form. The vote was 11-10, with one abstention. The complaint stemmed from a decision written by Del Castillo in April 2010, when the high court dismissed a petition filed by 70 Filipino comfort women led by Isabelita Vinuya, 79. The womenvictims of sexual abuse by the Japanese Imperial Army during World War IIhad asked the high court to compel the Philippine government to seek a public apology and reparation from Japan. In July 2010, the womens lawyers, Harry Roque and Romel Bagares, filed a supplemental motion for consideration, claiming that the decision had been plagiarized. They said passages had been lifted without attribution from articles in the Yale Law Journal and the Western Reserve Journal of International Law and a portion of a book by the Cambridge University Press. The works from which passages were taken were: A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Decent, Breaking the Silence: Rape as an International Crime by Mark Ellis, and Enforcing Erga Omnes Obligations by Christian J. Tams. Backing womens case Roque and Bagares said at least three sources were plagiarized to make it appear that these sources support the judgments arguments. In truth, the plagiarized sources even make a strong case for the petitions claims, they said. The lawyers said the most extensively plagiarized article was the one by Criddle and Fox-Decent. They said the article supported the womens case that the state could not set aside such crimes as genocide, torture and similar grave offenses. They cited 31 passages that, they said, made no reference to the article. In the same month, author Ellis himself sent an e-mail to the high court saying it may have misread his article to justify its position that the comfort women had no legal remedy to press their demand against the Japanese government. Ellis, the executive director of the International Bar Association composed of 198 national bar associations with 40,000 members worldwide, asked the high court to take the time to carefully study the arguments he had made in his article, and said he looked forward to a response. The high court said Ellis e-mail would be referred to the ethics committee especially formed to look into the matter. Accidental deletion In a statement issued on Aug. 10, 2010, 37 law professors of the University of the Philippines said Del Castillos purported plagiarism was unacceptable, unethical and in breach of the high standards of moral conduct expected of the Supreme Court, and called for his resignation. In October 2010, the high court voted 10-4 to dismiss the plagiarism case filed by Roque and Bagares. (Del Castillo took no part in the proceedings.) It said that there was no acknowledgement of Del Castillos sources in the decision because of his legal researchers accidental deletion of the footnotes, and that he could not have twisted the meaning of the lifted passages because these only provided background facts in international law. On Dec. 14, 2010, 11 members of the House filed an impeachment complaint against Del Castillo for betrayal of public trust. They said that in twisting the true intents of the sources, [Del Castillo] misled the other members of the high court. Inquirer Research

HaciendaLuisita,stilalongwaytogo By: Artemio Philippine Daily Inquirer 12:13 am | Sunday, December 4th, 2011 2share2 0 The Supreme Court resolved on Nov. 22, 2011 to invalidate the 1989 Stock Distribution Plan (SDP) of Hacienda Luisita. In lieu of the SDP, the Court ordered the parceling of the huge estate consisting of 4,915.75 hectares (about twice of Makatis 2,736 hectares) for eventual distribution to the 6,296 qualified farmworker-beneficiaries (FWBs). Constitutional mandate. Hailed as a triumph of social justice, the resolution penned by Justice Presbitero J. Velasco Jr. held that tillers should be made owners of the land they work on, not just minority shareholders cum workers in the owning corporation controlled and managed by their former landlords. It rests on the Constitutions mandate for the state to undertake an agrarian reform program founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till The resolution partly reversed a July 5, 2011 decision, also written by Velasco, allowing the FWBs to continue owning shares of stock in the Hacienda Luisita Inc. (HLI) and to be paid with 3 percent of gross revenues, salaries, home lots and corporate profits. However, the parceling and distribution is subject to the caveat, likewise of the Constitution, that requires the payment of just compensation to the landowners; in this case, the family of Jose Cojuangco, father of the late President Cory Aquino. On this constitutional rock, President Benigno Aquino III the only son of President Cory confidently anchored his concept of agrarian reform: Farmers need to be empowered so they can have their own lands to till. But agrarian reform has a second part. Let us not deplete capital. That means there should be just compensation so that the owners of land do not end up having their land taken from them, that they are rightly paid. The capital that is returned can be invested in other industries that can create more jobs in the country. Unanimity and divergence. The underlying principle of land to the landless tiller was unanimously upheld by 14 magistrates (Justice Antonio Carpio inhibited). But they were divided on several corollary issues; the major one being precisely how to determine just compensation. The resolution was fully concurred in by only six justices (Velasco, De Castro, Peralta, Del Castillo, Abad and Perez). It held that just compensation should be based on the fair market value of the estate on Nov. 21, 1989 (totaling less than P1 billion) when the Presidential Agrarian Reform Council (PARC) approved the SDP, and thus legally made the taking of the estate. But this is only preliminary as the HLI can still revert to the Regional Trial Court to determine just compensation. V. Panganiban

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The other justices had divergent views. Justice Sereno reckoned the taking on Jan. 2, 2006. The market value in 2006 could be many, many times more than in 1989, given the phenomenal rise of property prices. Justice Bersamin, joined by two others (Reyes and Bernabe) left the reckoning date to the Department of Agrarian Reform, the Land Bank and ultimately to the Special Agrarian Court. Apart from the date of the taking, other nitty-gritty issues include (1) how to account and treat the 3 percent of the gross revenues already given to the FWBs under the SDP; (2) should the P1.250 billion sales proceeds of the 500 hectares converted into an industrial park and business center, plus the P80.5 million paid for the sale of 80.5 hectares (at P100/sq m) and used as part of the Subic-Clark-Tarlac Expressway (SCTex) inure to the FWBs (the total of P1.33 billion is more than enough to cover the 1989 appraisal of about P1 billion); (3) how to compute the legitimate taxes and expenses incurred for legitimate corporate purposes of HLI, and (4) how the home lots given the FWBs under the SDP are to be valued and accounted. Avoiding problems and delay. The Court tossed these contentious details to the PARC, DAR and LandBank. The PARC is chaired by President Aquino and is composed of 10 Cabinet secretaries, plus the LandBank president and three representatives of landowners. More questions. The SCTex traverses Hacienda Luisita. Naturally, the parcels adjacent to or near the expressway would command much higher prices than the interior ones. Should the 4,915 hectares be divided and allotted equally among the 6,000 FWBs at an average of a little less than a hectare per FWB? Who gets what and where? Which brings a deeper issue: Should the FWBs who accepted the SDP be treated the equal of those who fought it? Also, may the FWBs now sell their putative parcels? The Nov. 22, 2011 resolution, complicated by the many concurring and dissenting opinions, is by no means easy to implement. Add the fact that the implementation is to be undertaken by P-Noys alter egos. Indeed, the road ahead is still long and winding, full of slippery slopes with sharp twists and turns that could still careen the contending parties into the precipice of confusion and partisan conflicts. These conflicts could mutate this triumph of justice into decades of more unrest before the FWBs could enjoy their own farms and the landowners receive their just compensation to create more jobs, as P-Noy avows. To help shorten, straighten and flatten the road, the Court, I think, should render one omnibus resolution that will include all the justices opinions and clearly show where the majority is. In the past, omnibus resolutions have been issued to clarify contentious opinions.

'No basis for Corona to inhibit from GMA cases' (The Philippine Star) Updated December 02, 2011 12:00 AM Comments (53)

MANILA, Philippines - Senate President Juan Ponce Enrile and Sen. Miriam Defensor-Santiago yesterday reiterated the dangers to the countrys democracy of calls for Chief Justice Renato Corona to inhibit himself from the cases involving former President Gloria Macapagal-Arroyo. If all appointees of the president must inhibit when the case is involving that president ... then you have no Supreme Court. What kind of system are we going to have? Enrile said at a weekly media forum at the Senate. I am not defending anyone. Im just scrutinizing the logic. If that is the case of GMA, then it is the case of the incumbent of the president like Justice (Bienvenido) Reyes and others. But based on that presumption, there are justices partial to the former. I dont think that is the correct presumption, he said. He stressed the need to consider the international audience in dealing with the issue. We are supposed to be the first democratic republic in Southeast Asia. And I hope we protect that image, he said. Meanwhile, Santiago, a constitutional law expert and former regional trial court judge, said those calling for the inhibition of the Chief Justice are trying to be a law unto themselves. They seek no less than the unconstitutional power to determine who will judge what cases. The Constitution does not grant that power to anybody, no matter how strident or self-righteous, she said in a statement issued from New York, where she is campaigning as the Philippine candidate to the International Criminal Court. She said pressuring any judge or justice to inhibit himself from a case also violates the independence of the judiciary. If a howling mob is allowed to pressure the chief justice or any justice to inhibit, that would serve as a calamitous precedent. Any litigant would then be able to pressure an impartial judge to inhibit, in order to obtain a group decision from the substitute, she said. In effect, the pressure on Corona to inhibit is an effort to substitute him with Carpio. If it can be said that Corona might be biased in favor of Arroyo, it can also be said that Carpio might be biased against Arroyo. We cannot allow the composition of the Supreme Court in a certain case to be determined by an unelected exterior group on the basis of the groups own political biases, she added. Santiago described as arrogant and supercilious the call of certain groups to force Corona to inhibit.

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This group is suffering from doctrinal confusion on the nature of a tripartite democracy. They want to be higher than the Supreme Court. It is improper for the political branches (executive and legislative) to influence the judicial branch. But this group thinks that it is a fourth branch. You have to admire their hubris, she said. Santiago cited decisions of Philippine and US courts upholding the principle that judicial inhibition should be discretionary on the part of the judge and not forced on him by interested parties. In the 2001 case of Soriano vs. Court of Appeals, she said the Supreme Court held that a litigant may not demand that a judge inhibit himself. She also cited the 2004 case of Dimo Realty and Development Inc. vs. Dimaculangan, where it was held that whether judges should inhibit themselves from a case rests on their own sound discretion. In the 2006 case of People vs. Ong, she said the Supreme Court affirmed the discretion of the judge to inhibit himself. She said the ruling said judges are in a better position to determine the issue of voluntary inhibition as they are the ones who directly deal with the parties-litigants in their courtrooms. She said a 1976 US court ruling states that a judge is presumed impartial, while another decision said prejudice merely based on, or growing out of, a business or professional relationship, or political or social relations ordinarily is not sufficient to disqualify a judge.

Coldneutralityofjudges By: Fr. Joaquin Philippine Daily Inquirer 4:09 am | Monday, November 28th, 2011 0share1 1 The ideal virtue that is desired of a court, whether it is a single-judge court or a collegial body, is the cold neutrality of an impartial judge. This, of course, is a consummation devoutly wished but not always attained. An interesting phenomenon to watch is an oral argument in the Supreme Court. Those expected to argue are the lawyers of the opposing parties. The justices are expected to be neutral observers, more or less. Sometimes it is more and sometimes it is less. You can tell from the questions of the justices to whom their minds belong. Sometimes you can also tell the leaning of the justices from their vote even on preliminary matters. Take the vote on whether to remand the issue of the validity of the joint Commission on Elections-Department of Justice panel. A preliminary question was whether to remand the preliminary matter to the redoubtable Judge Jesus Mupas or to keep it in the Supreme Court. Remanding the case to a one-judge court can make a big difference. You can get speedier action from a one-judge court than from a collegiate court. In a one-judge court you only have to convince one judge, whereas in a collegiate court you have to work harder to convince more judges who might have the backing of invisible forces. Also part of the judicial system is the prosecutorial power of the executive arm of government. The executive arm also has to show fairness. And determination, of course. And, ah, yes, speed. As one admiral is reported to have commanded his men during a naval battle, Full speed ahead and damn the torpedoes. But how to handle the torpedoes in litigation? In an effort to balance things and to do away with criminal impunity, the temptation to appeal to a thousand past wrongs as justification for looking at present wrongs as remedially right can be blinding. Can an eye for an eye and a tooth for a tooth save the nation? She did it to 5,000; lets do it to her! Is this higher law? Indeed, what we often seeconfirmed again and againis that, in an imperfect world, we do not always have perfect justice. We work to achieve the ideal. But in the end, we just have to wait for the Last Judgment when the sheep will finally and fairly be separated from the goats. The central issue. To my mind one central issue in the ongoing litigation is whether the executive department, independently of court orders, can curtail a citizens right to travel. This issue in turn depends so much on the meaning of the tricky phrase as may be provided by law. The Bill of Rights says Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. Is the phrase as may be provided by law limitive or expansive? In other words, should the provision of law authorizing impairment always be related to national security, public safety, or public health, or does the phrase mean that Congress is free to provide grounds for impairment in addition to national security, public safety, or public health? If it is the latter meaning, the phrase added by the 1986 Constitutional Commission should have been or as may be provided by law. On the other hand, if the meaning of the phrase is limitive, that is, any restrictive provision of law must be related to national security, public safety, or public health, how closely must the law be related to these three? A case in point is the current justification of hold-departure orders (HDOs) and watchlist orders (WLOs). DOJ Circular 41 purports to base it on a provision of the Administrative Code which authorizes the Department of Justice to investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services . . . to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individuals right to travel. If this broad prosecutorial and investigatory power of the DOJ can authorize restriction on the constitutional right to travel, can it also justify restriction on other constitutional rightse.g., the rights of the accused found in Section 14 of the same Bill of Rights? Conceivably, the DOJ restriction on GMA (Arroyo) is being imposed on the argument that she is a flight risk and can therefore frustrate investigation and prosecution and that therefore, to that extent, her escape from investigation and prosecution can be a threat to public safety. Voila, the Constitution is satisfied! Should the Supreme Court buy that argument? And what about her health condition? To my mind the argument based on the state of her health is a distraction or a decoy. (Incidentally, a fellow Jesuit who had a similar surgery in St. Lukes in the same week as GMA is back in his post in Naga but with a neck brace.) The fact alone that her condition G. Bernas S. J.

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might not be life threatening is not sufficient to justify denial of the right to travel. The denial must be based on something else and not on the lack of humanitarian basis. We are waiting for the Court to sort out the arguments. Speaking of speed. This week the Maguindanao massacre of two years ago was recalled. The clamor, especially coming from relatives of victims, is for speedier justice. The prosecution is encountering torpedoes all around. What can the admiral do? Will the supersonic speed and the triple determination in the GMA prosecution be applied to the Maguindanao massacre? If this is what the Palace rhetoric means, it is a welcome development. Full speed ahead and damn the torpedoes!

JusticesSALNandotherFAQs By: Artemio Philippine Daily Inquirer 12:42 am | Sunday, October 30th, 2011 2share38 32 Pursuant to the Anti-Graft Law the Statement of Assets, Liabilities and Networth (SALN) of the president, vice president, Cabinet members, senators, congressmen and other high government officials except those of justices and judges are always released to media at the start of their term and every year thereafter. Why are magistrates exempted? Readers pop this query all the time. Challenge unaccepted. This frequently asked question (FAQ) was also raised during my first press conference as chief justice on Dec. 22, 2005. In answer, I told reporters that even if I wanted to I could not release the justices SALN because two decisions promulgated long before I joined the Court banned their release. I knew that many justices had no objection to the release of their SALNs. In fact, upon being inducted, Justice Adolfo S. Azcuna (now retired from the Court) made public his SALN. However, after he learned of these decisions, he withdrew his SALN from public scrutiny because he (like the other justices) was bound by this jurisprudence, whether he agreed with it or not. I challenged the reporters and the bar and this was published and broadcasted to file an appropriate petition, so the Court could revisit the matter. But no one during my watch picked up my dare. Personal matters. Some FAQs ask for legal advice on personal problems, especially on family and property relations. At times, even lawyers want me to review their opinions on complicated issues before sending them to their clients. My usual answer is that I do not dispense long distance advice on personal matters. Every legal problem is unique and requires an ascertainment of the specific facts and a research on applicable laws and jurisprudence. For example, a question asked by a reader is whether she, as an adopted child, will inherit from a deceased son of her adoptive parents. This query looks deceptively simple. But the answer requires an ascertainment of the facts: What is the legal basis of her adoption? Did the decedent have a wife and children? Did he die testate or intestate? If testate, where is the will? Has it been probated? Etc. The best advice I could give is for the reader to consult a good practicing lawyer, and for indigents, the Public Attorneys Office or the Integrated Bar of the Philippines. Sometimes, readers raise questions of public interest and of common benefit to a large group. So I render an extended opinion, which I publish in this space, like my piece last Sept. 18 titled Enfranchising duals and greens. Other FAQs. Question: When you cite cases, you give only the title and date of promulgation. Why dont you print also the case number and publication source, like the Philippine Reports (abbreviated as Phil) or the Supreme Court Reports Annotated (SCRA)? Answer: To save on space, I do not anymore cite the usual Phil or SCRA or the case number. By knowing the case title and the date of promulgation, readers can easily access the full text of the decision via the Internet, or the Supreme Court Library. Decisions are printed in the Philippine Reports and the SCRA chronologically per their dates of promulgation. Hence, by knowing the promulgation or issuance date, researchers can easily find the appropriate volume in which the decision is printed. The date of promulgation is useful not only in finding the text of the decision but also in determining how recent the decision is. Sometimes, jurisprudence change; the later the date of promulgation, the more current and authoritative the judgment is. Question: Why are lawyers referred to as members of the bar? Answer: Traditionally, courts have a railing or barrier that divides the front area reserved for lawyers (and the witnesses) from the rear portion that is occupied by the general public who watch the proceedings. Since only lawyers may pass the small swing doors of the railing, they are called members of the bar. This nomenclature has nothing to do with their vaunted voluminous drinking habit. Question: Why have you not joined Facebook, Twitter and other social networks? Answer: I thank readers for their well-meaning invitations but I am now retired from public service and would rather keep my privacy as much as I can. I am not sure I can keep up with the demand of updating tweets and small talk in the networks. But I respond to questions sent to my e-mail address below, provided they are related to my columns. I get over a hundred e-mails a day, most of them junk which I promptly delete. I do not comment on mails not related to my columns. But I reply to relevant ones as soon as I can, usually within 24 hours. To avoid viruses, I do not open unknown attachments. Question: Do you have a law firm? Answer: No, my law office was dissolved when I joined the Supreme Court. After I retired, I have not formed or joined any law firm, not even as of counsel. I feel that it would not be fair to other lawyers if I now practice law. After all, as a former chief justice, I know many of the incumbent justices and judges who may wittingly or unwittingly be accused of bias if I appear before them as counsel, or worse, if I win my cases. However, as an independent director/adviser of some companies, I pass upon legal matters on the agenda of their board meetings. I articulate what I believe is correct. And I do write my legal opinions in this space on matters of interest to the reading public. I do not claim to be infallible, only reasonable. V. Panganiban

OnwhomwilArroyosfaterest?

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By: Artemio Philippine Daily Inquirer 10:59 pm | Saturday, November 26th, 2011 0share21 20

V.

Panganiban

Accountability. This one word sums up the Aquino administrations goal in barring former President Gloria Macapagal-Arroyo from leaving the country. The administration wants to hold Gloria Macapagal-Arroyo accountable for electoral sabotage a case of which has been filed by the Commission on Elections in the Regional Trial Court (RTC) of Pasay and for corruption, plunder and several other serious indictments pending in the Office of the Ombudsman (OMB) and in the Department of Justice. Out of reach. If allowed to leave, the former president so the administration fears will not come back and thus frustrate our peoples quest for justice. At the very least, she would be able to delay the cases until the term of President Aquino ends in 2016 and a more sympathetic president takes over. Once abroad, she would be beyond the reach of our courts. And if she manages to fly prior to her arraignment, the criminal proceedings would be halted indefinitely until she personally appears (or is somehow brought back here) and pleads guilty or not guilty during her arraignment. Without such arraignment, trial cannot proceed and justice cannot be served, so the administration ratiocinates. On the other hand, Arroyo, via her battery of lawyers, argues that her constitutional and statutory rights, especially her rights to travel and to seek medical attention, are being emaciated. At the Manila airport, Justice Secretary Leila de Lima stopped her from leaving, even though the Supreme Court had issued a Temporary Restraining Order (TRO), thereby nearly precipitating a constitutional crisis. Arroyos remedies. The focus now is on the electoral sabotage case filed by the Comelec in the Pasay RTC, presided over by Judge Jesus Mupas, who issued a warrant for Arroyos arrest. Under our laws, the accused in capital offenses, like electoral sabotage, are not entitled to bail and are detained during their trial. What are Arroyos remedies to invalidate her arrest, to be freed of detention and to be able to go abroad? And what are governments options to thwart her and to keep her in jail? First, Arroyo is now challenging the authority of the joint DoJ-Comelec panel that conducted the preliminary investigation (PI) for electoral sabotage. She claims that by partnering with the DoJ (a partisan political agency), the Comelecs constitutional independence had been severely compromised. Thus, the PI undertaken by the joint panel, including its recommendation to the Comelec for Arroyos prosecution, reeks with partisan bias. Lacking in objectivity, the electoral sabotage charge later filed by the Comelec en banc with the RTC is void and the warrant of arrest issued on the basis of these proceedings is also invalid, so Arroyo claims. The government counters that the DoJ was just assisting, not interfering, with the Comelec. After all, under Republic Act 9369, the authority of the Commission to conduct preliminary investigation of all election offenses is concurrent with the other prosecuting arms of the government, like the DoJ. Instead of conducting a separate and repetitive PI, the DoJ was well within its powers to conduct the said PI jointly with the Comelec. Second, Arroyos lawyers are also questioning the RTCs jurisdiction over the sabotage suit, saying that cases against high public officials exclusively fall on the Sandiganbayan. Hence, the RTCs warrant of arrest is void since it was issued sans authority. Au contraire, the government posits that the Omnibus Election Code gives the RTC exclusive jurisdiction over election offenses. Third, Arroyos legal eagles argue that Judge Mupas gravely abused his authority because he could not have determined personally, as required by law, the existence of probable cause before issuing the warrant of arrest. It is inconceivable, they say, that Judge Mupas could intelligently pass upon the voluminous records of the DoJ-Comelec PI in just four hours. Judged by our people. However, the government counters that precisely the determination of probable cause was prioritized because Arroyo was all set to fly and would have frustrated the quest for justice, if the RTC dilly-dallied. So, instead of being vilified, Judge Mupas should be praised for speeding up the case. In addition to showing the legality of Arroyos detention in the electoral sabotage case, the government is probably speeding up also the PI of Arroyos other cases in the OMB and DoJ. After all, even if the Supreme Court quashes the electoral sabotage case, the filing of another information for another capital offense would effectively bar Arroyos travel. Also, precedents repeatedly held that all the above three issues should be addressed first to the RTC before being elevated to the Supreme Court. Many skirmishes, maneuverings and howling there will be but in the end, the Supreme Court not Malacaang will rule on Arroyos fate. The Palace can investigate, prosecute, cite precedents, wail and huff, but the Supreme Court can alter jurisprudence or create exceptions thereto. If, after the oral argument this Tuesday, the Court should issue an order or TRO allowing GMA to fly immediately, will the Palace dutifully follow? Or will it do another Leila and precipitate another crisis? How will our people respond? As I have always said, the might of the Supreme Court rests on its being right. By its rulings on Arroyo, the high courts being right would be judged by our people and by history. That judgment could also come immediately via impeachment by their elected alter egos.

TheArroyo8justices By Ted Laguatan 5:36 pm | Tuesday, November 22nd, 2011 19share920 799 Should the 8 Arroyo Justices be allowed to continue to abuse the nation? Concerned about former President Gloria Macapagal-Arroyo (GMA) and her husband, former First Gentleman Jose Miguel Mike Arroyo (FG), eluding prosecution for serious crimes Secretary of Justice Leila de Lima correctly issued a watch list order (WLO) or hold order to prevent them from going abroad and maybe escaping. Perhaps sensing that charges were about to be filed against them, GMA and FG petitioned the Philippine Supreme Court to issue a Temporary Restraining Order (TRO) to invalidate the WLO reasoning that GMA needed to get medical attention which she claimed was not available in the Philippines.

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Hogwash! quips one Filipino specialist doctor trained in one of the best medical establishments in the U.S. We have so many qualified competent doctors here trained abroad who can attend to her. Secretary of Health Dr. Ike Ona echoed the same sentiments. Oral arguments on the TRO petition were scheduled on November 22, 2011 a normal procedure which would give all parties the opportunity to present their positions consistent with procedural due process principles. But instead, what did eight Supreme Court Justices do? Led by GMA midnight appointee Chief Justice Renato Corona and seven other GMA appointees, the eight rushed the unilateral approval of the TRO petition not giving the government the opportunity to present counter arguments and not waiting for the scheduled oral arguments to take place. As if on signal, the Arroyos rushed to the airport the same day seeking to board a flight to Singapore. They reserved five different flights to Singapore using different airlines. From there, their itinerary included a flight to Spain, a country with which the Philippines has no extradition treaty and which really does not exactly have international renown for exceptional medical expertise. These facts suggest that de Limas concerns are not without basis. Showing uncommon common sense, Secretary de Lima stayed the WLO preventing the Arroyos from leaving. Fr. Joaquin Bernas, S.J., former dean of the Ateneo law school, known as a Constitutionalist takes the position that the decisions of the Supreme Court should absolutely always be obeyed. Otherwise, he asserts, we will have chaos or risk having a Constitutional crisis. He asserted the same stand when the Supreme Court composed of GMA appointees confirmed the midnight appointment of Renato Corona as Chief Justice even if precedent law indicates that this is illegal. Bernas is absolute in his position that the Supreme Court should always be obeyed. He criticizes Secretary de Lima in his column that she should have immediately obeyed the TRO of the Supreme Court and allowed the Arroyos to travel even if there is a risk that the Arroyos may escape prosecution and never return. Issue: Should the decision of the Supreme Court be absolutely obeyed at all times? Heres my take on this: The concerns of Secretary de Lima who represent the people of the Philippines are legitimate concerns. This is not the same as saying that the Arroyos do not have individual rights. Everyone recognizes that they do. But if the eight Justices of the Supreme Court were acting in good faith, they would have given the government the opportunity to present counter arguments against the Arroyos TRO petitions and waited for the submission of briefs and the oral arguments before making a decision. The government who collectively represent the Filipino people should be afforded the same procedural due process rights as the Arroyos. If the eight justices do not see that or refuse to see it, surely, it should be obvious that de Lima, as an individual has due process rights. In emergency situations, a proper court may unilaterally issue a TRO to instantly prevent some harm from occurring where the facts clearly suggest this might happen. This is not the situation here. Even GMAs doctors affirm she is in no immediate danger of dying or suffering irreparable injury. They even state that she should recover in a few months. Nevertheless, in her petition for a TRO, Arroyo insists that she needs to immediately go abroad for medical treatment. On its part, the government will be claiming that GMA can get the necessary treatment in the Philippines and that more likely than not, she is using her illness as an excuse to be able to leave the country and elude prosecution for the serious charges of plunder and electoral sabotage no bail offenses for which she could spend a very long time in jail if convicted. As in every case, credibility is always an issue. It is only proper for the Justices to scrutinize if the parties are telling the truth and which party has the weightier more rational arguments before making their decisions. At all times, the Justices are supposed to remain neutral and fair and base their decisions on proper procedure and objective evidence. Here, the eight Arroyo appointed Justices never provided the government the opportunity to present written briefs contra to the TRO petitions nor did they bother to wait for the scheduled oral arguments which would have taken place in a few days. Instead, contrary to the protestations of the five dissenters, they unilaterally granted the TRO petition of the Arroyos. Notwithstanding these irregularities, Constitutionalist Fr. Bernas declares that this tyranny of a clearly biased majority cabal of justices should nevertheless absolutely be obeyed. Having gone to a Jesuit law school in the United States and continuously doing cases in California and federal courts for some thirty years which includes litigating many complex immigration and human rights cases involving US Constitutional Law, I am somewhat sad to see that a Jesuit priest who is also a lawyer fails to see the more important issue here. With no disrespect intended, I note that Fr. Bernas takes a mechanistic absolutist position in declaring that the decisions of the Supreme Court should always be followed. I grant, that in general, the decisions of the Supreme Court should be followed unless they are in conflict with moral laws as in this case. As a matter of conscience, man made laws should be ignored, disobeyed and fought against where they conflict with moral law. There was a time when slavery and segregation laws were part of the United States Constitution. Some law professors and Constitutionalists admonished that the law had to be obeyed simply because it was the law notwithstanding the terrible injustice and extent of suffering that this inflicted on other human beings who were not even defined as human beings under this same law but as chattels or personal property. Some humanists like Henry David Thoreau were willing to go to jail and suffered personal consequences rather than accept and give legitimacy to such anti-human laws. The laws are made for man rather than man being made for the laws. Some laws are clearly unjust or the way some good laws as applied are clearly unjust. Conscience dictates that in these situations, civil disobedience should be resorted to. Mahatma Gandhi, Nelson Mandela, Martin Luther King, Ninoy Aquino, Jose Rizal all these great men listened to the calling of their hearts and moral law rather than to tyrannical artificial laws made by corrupt greedy men. They paid heavily, some with their lives, to be true to Gods law that they found within their deepest selves but with their sacrifices, unquestionably left the world a better place for others. Here, by their actuations, eight pro Arroyo Justices show that they are placing the interests of their patron above that of the Filipino people. They are using their official powers to dish out laws or orders that tyrannize and brutalize the rights of the citizenry. How different is this from the tyranny of an individual dictator?

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It is one thing for a Constitutional law professor to explain that in general, Supreme Court orders should be obeyed. It is another thing for him to say they still need to be obeyed even if clearly tyrannical, unjust and immoral. Fr. Bernas may sincerely believe he is promoting public order with such admonition. In actuality, he is creating instability and distrust by insisting that the public accept and swallow the unpalatable biased decisions of a majority of Justices in the Supreme Court who are all GMA appointed. Lets take a second issue: Should the Executive branch risk causing a Constitutional crisis by defying the Supreme Court? Defying biased eight pro Arroyo is not the same as disrespecting the Supreme Court as an institution. Secretary de Lima is simply affirming the rights of the Filipino people in taking a stand against judicial tyranny. This important stand inevitably needs to be done now at this point in Philippine history. It is not the end of the world if President Simeon Aquino assumes this risk which he should. In fact, he is showing true moral leadership if he does. This touchy situation of a majority of Justices, who by their actuations, show more loyalty to GMA and to themselves than to the people and to principles of promoting justice needs to be resolved now. Unless resolved now, it will repeat itself. The Secretary of Justice and the Ombudsman can file all kinds of charges against the Arroyos and their cronies, exert tremendous efforts and spend millions to win these cases. Assuming they win, expect these cases to be appealed to the Supreme Court and to the waiting hands of the biased Arroyo 8. Lets call a spade a spade. What will happen there is predictable and foreseeable. They will decide in favor of GMA. Fr. Bernas will again say we should absolutely accept their decision. Faced with a Supreme Court with a majority of Justices clearly loyal to GMA, what then should President Aquino and Secretary de Lima do? They should continue to defy the Arroyo 8 Justices when they come out with unjust results such as ordering de Lima to obey the TRO and allowing GMA to depart. Aquino should use all of his formidable political powers against the Arroyo 8. He is the the elected President of the Philippines voted into office by millions of Filipinos. They expect him to provide strong moral leadership. He is the Commander in Chief of the Armed Forces. Under him also is the NBI and the PNP. He also has tremendous other resources at his command. Most importantly, he has the support of the Filipino people in the fight against corruption and injustice. What about these eight justices? They were appointed by a discredited President who like her husband is perceived as having betrayed the country with their unbridled greed and corruption. The midnight appointee Chief Justice and the seven others have no credibility in the eyes of the people. If the President and Justice de Lima defy their orders, the people will understand and support them knowing they do it for the sake of justice and that it is the right and moral thing to do. What will the Arroyo 8 do hold de Lima in contempt? Aquino can simply just immediately pardon her. Who will the eight order to arrest de Lima? The President has the loyalty of the Armed Forces, the PNP and the NBI. The President should not hesitate to use his political powers to accomplish good for the sake of the people. He cannot allow 8 questionable individuals who repeatedly abuse their discretion in using their offices to thwart the ends of justice. He should pressure them to resign or caused them to be impeached. Replacing them with new Justices should bring back credibility and respect back to the Supreme Court as an institution. The people will love him more for showing strong moral leadership. Note: San Francisco based Atty. Ted Laguatan is a member of the California Bar. He does complex litigation and is the Legal Counsel and Spokesperson for US Pinoys for Good Governance

Ruleofjustice By: Conrado Philippine Daily Inquirer 9:30 pm | Wednesday, November 23rd, 2011 Its mind-boggling how some people are depicting Gloria Macapagal-Arroyo as the object of the most violent oppression. I never heard these levels of remonstration when Brig. Gen. Francisco Gudani and Col. Alexander Balutan were jailed for testifying against Arroyo. I never heard these levels of protest when Jun Lozada was kidnapped for daring to speak out against unmoderated greed. I never heard these levels of vituperation when the political activists were massacred in the name of fighting insurgency. I agree completely: Government should observe due process as steadfastly, resolutely and matuwid-ly as it means to run Arroyo to the ground. I have said so again and again: The only way to keep Arroyo here is to charge her, preferably for stealing the presidency in 2004, which is the original sin, and not for 2007, which is merely derivative. Government may not do that by invoking a law she herself passed to prevent her enemies from leaving the country. That is a tyrannical law, one that has no place in a democracy, indeed one that has no place in a government vowing to hew to the straight and narrow, vowing to be the opposite of the past. You cannot reverse tyranny by the ways of tyranny, you can only do so by the ways of decency. I am glad in this respect that the government has gone ahead and charged Arroyo with electoral fraud, however that seems a little rushed. Yet having said that, where did the government err egregiously in point of law or decency in preventing the former first couple from hightailing it a couple of weeks ago? Why should P-Noy bow to the wishes of the Supreme Court without challenge? For that matter, why should the people of this country submit to the wisdom of the Supreme Court without question, when at the very least it is headed by someone who should never have been a chief justice, who should have resigned long ago out of basic decency, and who should have inhibited himself out of fundamental justice from rendering judgment on the one person he owes his life to? de Quiros

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When at the very most the Supreme Court harbors justices who should never have been justices, who should have been deeply ashamed of themselves for championing plagiarism and reinventing finality, who should have resigned long ago for being an outrage to the true, the good, the beautiful, especially the beautiful? As shown subsequently, which only proved how Renato Corona could not have been acting objectively on the matter, his mouthpiece, Jose Midas Marquez, would distort the Courts position on the TRO by claiming it was binding, although the Arroyos had not complied with one of the basic conditions for leaving the country. Where was the fault on governments part? By all the ways of law and justice, P-Noy had right of say. By all the ways of heaven and earth, P-Noy had right of way. But its more than that. Far, far more than that. What in Gods name has happened to our memory? Have we forgotten who Gloria Macapagal-Arroyo is? Have we forgotten what she has done to the country? Have we forgotten the lying, cheating and stealing? Have we forgotten the killings? Have we forgotten how in her time the wicked were rewarded and the righteous punished? Have we forgotten how everything was turned upside down in this country? Have we forgotten how like Midas in reverse, Marquez or not, she turned everything she touched, including freedom, including decency, including human life itself from gold to dross? Have we forgotten the weeping and gnashing of teeth of a people condemned to living hell who thought they would never see the light of day, let alone catch a glimpse of heaven? The least that P-Noy deserves is appreciation for what he is doing, which is to give a long-suffering people justice, which is to give a much disillusioned people a monumental lesson in crime and punishment. The most that P-Noy deserves is the gratitude of the nation for turning the world back on its feet, for setting free the innocent and jailing the guilty, for making sure by the implacable demonstration of the fate that awaits tyrants that we can truly say, Never again! Its the clearest sign by far that P-Noy means to take the road not taken, and make all the difference. Its the strongest proof by far that PNoy means to curb corruption, in the profoundest sense of the word corruption, in all the senses of the word corruption. P-Noys administration may not possess the smartest lawyers in the world, the kind like Estelito Mendoza who can make the Supreme Court betray duty and obligation to favor Lucio Tan with a mere letter. It does falter now and then, it does fumble time and again. But its heart is in the right place, its head is in the right direction. We keep talking of the rule of law or the devious do when they want to hide under its skirts but what do we really mean by that? True enough, you cannot have justice without law. Laws are the roads by which you reach your destination. But even truer, you cannot have law without justice. Roads mean nothing if you dont know where you are going. For far too long have the leaders of this country wielded law to thwart justice, propagated law to foment injustice. Ferdinand Marcos especially, Gloria Macapagal-Arroyo especially. Its time we restored sanity to life. Its time we gave back moral depth, lofty height, or plain common sense to law. Its justice that animates laws. Its justice that unlocks the irresistible force of law. Its justice that unleashes the hurricane power of law. Not the other way around. By all means let us abide by the rule of law, steadfastly, resolutely, matuwid-ly. But only in its truest sense, which is to abide by the one thing that defines it: The rule of justice.

Pacquiao,notDeLima,shouldresign Philippine Daily Inquirer 12:04 am | Monday, November 21st, 2011 2share109 106 The President is a political animal. So is every Cabinet member, as his alter ego. Therefore, a justice secretary takes into account not only the strictly legal aspects of an issue but also relevant policy considerations. Decisions should not lightly erode confidence in the presidency, on the principle of the greatest good for the greatest number. Any disbarment case filed against Justice Secretary Leila de Lima will go nowhere because she is being attacked not for dishonesty, immorality, criminality, etc., but for a quasi-policy decision not within the disbarment milieu. The Sunday of the Pacquiao-Marquez bout, I was in a huge gathering for lunch-cum-ballroom dancing. I had asked why high noon? I was told no other venue in Metro Manila was available. Business seemed OK then. So at least 200 guests were not watching the fight. Somebody called boxing the manly art of modified murder, where one is cheered on while he kills another softly, as money rides on it. It would be as if one were among those watching gladiators in the Roman coliseum in the days of yore, or seeing a knight in the medieval era, unhorse, maim or kill another. I was bloodthirsty myself. Not anymore, in the last quarter, last two minutes, or pre-departure area phase of my borrowed life. Many are so blinded by Manny Pacquiaos billions that we tolerate a non-performing liability (NPL) in the House, an institution now being disgraced by one who trivializes chamber work as only a sideline or a hobby, who gambles and loses millions of dollars in casinos, womanizes, hosts a TV show (Manny Many Prizes), threatens to sue because of canceled singing concerts, humors his mother in an ostentatious birthday fiesta with a Hermes bag and imported DIs at a time of great want for many. Some were surprised he did not do better last Sunday. But, he lacked focus in preparing against a helluva fighter. He should resign as absentee congressman to do better as a modified murderer. The issue then is, absent a resignation, should he not be expelled from the House of the Salongas, Sumulongs, Roxases, Osmeas, Villareals, Pelaezes and Lims? The expulsion issue is moot of course. You dont cross billionaires. You are rich, you are respectable; money brings prestige and power. Pacquiao will remain in the House where his colleagues will not see an NPL as a disgrace to it. What Manny Many Prizes can do. He may even run for

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president in 2022. So also talk among our experts who had predicted an early KO win, and caused betting losses among the gullible who had relied on the cognoscentis crystal ball. No one has apologized for misleading those who betwhich is illegaland lost. Leila has done nothing illegal. She should stay. Manny should resign. His colleagues should worry about institutional prestige, instead of who won between Manny and El Dinamita and what happened to their bets. They can also talk about the false prophets who led them to bet wrongly and now continue to regale us that they know it all. RENE SAGUISAG, ravslaw@gmail.com

Arroyos to question probe panel By Aie Balagtas See (The Philippine Star) Updated November 21, 2011 12:00 AM Comments (211)

MANILA, Philippines - Former first gentleman Jose Miguel Arroyo will ask the Supreme Court today to declare the joint Department of Justice (DOJ)Commission on Elections (Comelec) investigation panel unconstitutional and suspend all its recommendations and findings that led to the arrest of his wife, former President and now Pampanga Rep. Gloria Macapagal-Arroyo, last Friday. Lawyer Ferdinand Topacio said the legal team of Arroyo decided to file a supplemental petition with a very urgent motion for the issuance of a temporary restraining order (TRO) against the DOJ-Comelec panel that recommended the filing of charges of electoral sabotage against Mrs. Arroyo. We will reveal before the Supreme Court (SC) the irregularities committed against the Arroyos last Friday... in effect we are praying for the High Court to issue the TRO to negate the effects of the filing of the criminal charges and the warrant of arrest against the former president, Topacio said. The joint DOJ-Comelec committee tasked to investigate the allegations of cheating in the 2004 and 2007 polls recommended the filing of charges of electoral sabotage against Mrs. Arroyo, along with former elections chief Benjamin Abalos, former Maguindanao election supervisor Lintang Bedol, and former Maguindanao governor Andal Ampatuan Sr. last Friday. Arroyo, on the other hand, was not included for lack of evidence. The committees resolution was forwarded to the Pasay City Hall of Justice and was raffled off to Judge Jesus Mupas of Pasay Regional Trial Court Branch 112 before noon Friday. Mupas then issued an arrest warrant, which was served on Mrs. Arroyo at the St. Lukes Medical Center in Taguig City that evening. The former president was subsequently placed under the custody of the Southern Police District which took her mug shots and fingerprints the following day. Topacio said these supervening events would be the basis of their supplemental motion. Topacio said the electoral sabotage case filed against Mrs. Arroyo had been railroaded. Through Topacio, Arroyo described the panel as a kangaroo court designed with the sole purpose of persecuting the former first gentleman and his ailing wife. Arroyo also said the order creating the DOJ-Comelec panel should be declared null and void considering that Justice Secretary Leila de Lima and Comelec Chairman Sixto Brillantes Jr. had acted as lawyers for Sen. Aquilino Koko Pimentel III, one of the complainants in the electoral fraud case against the Arroyos in his election protest. Arroyo noted Brillantes also acted as the lawyer for the late actor Fernando Poe Jr., who lost to his wife in the 2004 presidential elections. Back to square one The Comelec had denied allegations that the joint panel resolution that led to the arrest of Mrs. Arroyo had been railroaded. Comelec Commissioner Rene Sarmiento noted the Arroyos are set to question before the SC the constitutionality of the joint panel that recommended the filing of the charges.

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Sarmiento though remained confident that the legality of the joint panel, created under Republic Act 9369, would be upheld by the SC. So we can say that we acted with legal support, he said. Sarmiento, however, also saw the possibility that the SC might declare otherwise. If this occurs, Sarmiento said the poll body has the option to conduct an investigation against Mrs. Arroyo on its own. It wont be back to square one because we already have the sworn statement of the witnesses, so there is already a basis even without the DOJ, he added. Sarmiento admitted that Mrs. Arroyo could be out of detention once the SC declares the joint panel unconstitutional. If the Supreme Court would rule that the creation of the Comelec-DOJ joint panel is illegal or unconstitutional the effect might be the nullification of the arrest warrant, Sarmiento said. SC spokesman Midas Marquez also said that if the SC rules in favor of the Arroyos, then the proceedings as well as the recommendations of the joint panel that became the basis of the filing the electoral sabotage complaint against the former president may be declared void ab initio. If that panel is adjudged as unconstitutional then of course all the proceedings conducted by that panel would have to be nullified but again we have to wait for the decision of the Court, he said. Contempt and disbarment Topacio added they would also ask the SC to declare De Lima in contempt for defying the temporary restraining order (TRO) that allowed the Arroyos to leave the country last Tuesday. He said they would also seek the disbarment of De Lima and presidential spokesman Edwin Lacierda. Topacio said several groups of lawyers are also set to join them in questioning the defiance of the executive branch of the TRO. They (De Lima and Lacierda) are lawyers. They are supposed to be officers of the court. They owe their loyalty not to Malacaang but to the rule of law, Topacio told reporters. He said Lacierda should be included since he openly supported De Lima. The SC had denied the motion for reconsideration filed by De Lima, through the Office of the Solicitor General, which sought the recall of the TRO on watchlist order that prevented the Arroyos from leaving the country last Tuesday. However, the filing of the electoral sabotage charges and the issuance of the arrest warrant by the Pasay City court against Rep. Arroyo superseded the TRO. House Minority Leader Edcel Lagman questioned what he described as the precipitate issuance of a warrant of arrest for Mrs. Arroyo. With admittedly eight volumes of evidence, affidavits and documents submitted to the Pasay City (court), it would be a Herculean task to wade through the voluminous records and would be physically impossible for a judge to determine probable cause in less than four hours to justify the issuance of a warrant of arrest, Lagman said. The inordinate and precipitate haste in the issuance of the warrant of arrest brazenly violates Section 14 of the Bill of Rights (of the Constitution), he said. Government lawyers insisted there was nothing irregular in the issuance of the warrant considering the repeated attempts of the Arroyos to leave the country. But Lagman said the Bill of Rights also mandates that no search warrant or warrant of arrest shall be issued except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

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Under the Rules of Court, Lagman said the judge must personally evaluate the resolution of the prosecutor and its supporting evidence before deciding whether to issue a warrant of arrest based on his personal determination of the evidence on the existence or non-existence of probable cause. Settled is the jurisprudence that what the judge is never allowed to do is to follow blindly the prosecutors bare certification as to the existence of probable cause. Much more is required by the constitutional provision, he added. On the other hand, Sen. Francis Pangilinan asserted the right to travel being invoked by the Arroyos is a one-dimensional angle that attempts to keep the larger issues of accountability and true justice away from public debate. To view the raging controversy only from the issue of the right to travel alone is to be one-dimensional and will definitely lead us to ignore all the other cases wherein the Supreme Court voted repeatedly to favor the interest of the Arroyos, Pangilinan said. Pangilinan expressed the view that one cannot just use the right to travel of a citizen to argue Mrs. Arroyos case. It is my view that one cannot look at the TRO controversy involving Gloria and Mike Arroyo simply as a textbook case in constitutional law, he said. Sen. Pimentel, for his part, defended De Lima in her efforts to pursue the prosecution of the Arroyos. Secretary De Lima was well within her mandate and prerogative as head of the Justice department to insist that the right to travel is not absolute. Even before the Supreme Court issued its TRO, there were already six plunder complaints filed against Arroyo with the Office of the Ombudsman and another complaint for electoral sabotage with the DOJ and the Comelec, Pimentel said. To have allowed Arroyo to leave for abroad would have been tantamount to abdicating Secretary De Limas duty to uphold the rule of law in the country, he added. - With Mayen Jaymalin, Jess Diaz, Christina Mendez, Sandy Araneta

Unfinishedlegalbusiness By: Fr. Joaquin Philippine Daily Inquirer 12:10 am | Monday, November 21st, 2011 0share41 38 As of this writing former President Gloria Macapagal-Arroyo is under police guard at St. Lukes Medical Center in Taguig City. The obvious effect of such situation is that her movements are limited. She will not be able to board a plane to Singapore; that is, assuming that everything the prosecution has done is valid. Clearly, under our legal system, the movements of a person charged with a criminal offense may be limited by a court. But that does not settle everything. There are questions whose answers transcend the individual welfare of former President Arroyo. The first glaring question is whether an executive officer, no matter how highly placed, may defy the clear order of no less than the Supreme Court. This is now scheduled for deliberation by the Court. It will have to decide whether indeed there was defiance by the justice secretary and what to do with the defiant. In the past those proved to have defied the order of a court, even of a lower court, have been penalized for contempt. Will this happen here? In the order of things, the principle is clear enough. In our tripartite system the functions are distributed. The legislature enacts the law, the executive implements it, the judiciary passes judgment on the validity of the law and acts of the executive. The judiciary, of course, is not perfect or omniscient. It can make, and it has made, mistakes. But mistaken or not, the court must be obeyed. But the judiciary has no guns to implement its orders. Thus, if every person is free to obey only what he or she considers a correct decision or order of the court, we can have chaos. We had the beginnings of that at the airport last Tuesday. The validity of the position taken by the executive officer depends both on the facts of the situation and on whether the executive has the power to do what he or she is doing. A public officer has only so much power as is given to him or her explicitly or implicitly by the Constitution. In the current controversy, what is involved is a persons right to travel within or without the country. The right, of course, is not absolute. It can be limited. The Constitution says that the right to travel may not be impaired except in the interest of national security, public safety, or public health, as may be provided by law. It is noteworthy that the phrase as may be provided by law was not in the less libertarian 1973 Constitution. This fact was noticed during the deliberations of the 1986 Constitutional Commission. The phrase was added as a limitation on the discretion of executive officers. In the current controversy, the validity of DOJ Circular 41, on the basis of which the DOJ has acted, is in issue. The DOJ circular recognizes that earlier circulars of the Supreme Court did not recognize the power of the executive officers conducting investigation to limit the movement of people. Because of this, DOJ Circular 41 decided to empower the DOJ. Was this an act of self-empowerment? Did this act of the DOJ satisfy the requirement of the phrase as may be provided by law? This is an important question which needs to be decided by the Supreme Court. It may be argued that this question is no longer ripe for decision because the DOJ action on the basis of Circular 41 has been mooted by the warrant of arrest issued by a Pasay court. True, normally moot questions are not taken up by the Court. However, in more than one instance the Court has decided to take up a question that has become moot on the argument that the question dealt with a very important issue capable of repetition. G. Bernas S. J.

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Definitely, this is a very important issue. As jurisprudence has said, Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly. And the issue is likely to come up again and again. As dissenting opinions in the GMA TRO case already noted, there are now restrictions which are imposed even in the absence of a law. There is need for clarification on the subject. Finally, now that a warrant of arrest against GMA has been issued, is the possibility for her to travel definitively closed? I shall not enter into the issue of whether the Pasay Regional Trial Court has jurisdiction over the case. I have heard it argued that, since GMA is a public officer (dont forget that she is a member of Congress) and the offenses for which she is accused were allegedly committed when she was president, the case should go to the Sandiganbayan. As I said, I am not prepared to navigate in that sea because the statutory law on the jurisdiction of the Sandiganbayan is perhaps the most frequently amended law. But assume that the warrant of arrest is valid. Assume further that she is charged with a non-bailable offense. Does that close all possibility of foreign travel? We know that denial of bail is not automatic. The prosecution still has to prove in a proper hearing that the evidence of guilt is strong. That has not yet been done. Assume next that the evidence of guilt is shown to be strong and that therefore bail is not available as a matter of right. At the risk of sounding like the Old Testament patriarch bargaining with God about sparing the city of Sodom from fire and brimstone, may a judge still grant bail and even give to an accused permission to travel? On the basis of recent Supreme Court decisions as late as 2007, that is not outside the realm of possibility. But considering the temper of the times, that may be outside the realm of Sodomic bargaining probability!

Rightsofilegitimatechildren By: Artemio Philippine Daily Inquirer 11:25 pm | Saturday, November 19th, 2011 0share13 13 The shocking murder of Ramgen Bautista, allegedly masterminded by his brother RJ and sister Ramona, has unfolded conflicts and rivalries among the many children of former Sen. Ramon Revilla Sr. (Jose Acua Bautista in real life). Use of surname. In an interview, the former matinee idol admitted siring around 80 children with about 16 women. The most publicly known of these women is Genelyn Magsaysay, herself a daughter born out of wedlock of another former senator, Genaro Magsaysay. The police theorize that the alleged unequal distribution of the allowances given by the ailing senator was the motive for the murder. Text messages retrieved from the cell phone of Ramgen reveal money rifts among the siblings. To begin with, I think there are really no illegitimate children. There are only illegitimate fathers and mothers, who beget offsprings outside a valid marriage. I say this because it is quite unfair to tarnish children who had really no fault in their conception and birth. However, our laws principally the Civil Code and the Family Code label children conceived and born out of wedlock as illegitimate. So, to avoid confusion, this column, in discussing their rights, will abide by such nomenclature. The Civil Code and the Family Code, which both regulate filial relationships, provide that illegitimate children shall use the surname of their mother. But Revilla Sr. himself authored a law in 2004 (Republic Act 9255, otherwise known as the Revilla Law) that amended these two codes and allowed illegitimate children to use the surname of their father, if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Simply stated, such express (not implied) recognition may be found in the original birth certificate signed by the father, or in a notarized document, or private written instrument executed by the father. Absent such express acknowledgment, an illegitimate child can use only the surname of the mother. Extent of support. Obviously, the children of Genelyn have been expressly recognized since they freely use both the real-life surname Bautista, and the reel-moniker Revilla of their father. Once properly signed, the express recognition grants to illegitimate issues not only surname rights but also monetary benefits, like support and succession (or inheritance) from the father. There have been varying media reports on the amount of support given by Revilla Sr. to Genelyns children from P1 million to P150,000 a month which was apparently apportioned by the deceased Ramgen among his siblings. Support, according to the Family Code, comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. Education can extend beyond the age of majority. The amount of support shall be in proportion to the resources or means of the giver and to the necessities of the recipient. It may vary proportionately from time to time according to the reduction or increase of the financial capability of the obligor and the needs of the obligee. It is not just the parents who are obliged to give support. Brothers and sisters not legitimately related, whether of the full or half blood, are likewise bound to support each other, but support may be denied to illegitimate siblings if the need is due to a cause imputable to the claimants fault or negligence. Under the Family Code, the many Revilla children, whether legitimate or not, may owe support to each other. Succession or inheritance. By succession, the property, rights and obligations (to the extent of the value of the inheritance) of a person are transmitted to the heirs (and others called devisees or legatees) upon his or her death, either by a will or by operation of law, or partly by will and partly by operation of law. Decedents may dispose by means of a will only such portions of their property that are not reserved by law for the compulsory heirs. In other words, a testator cannot, as a rule, disinherit compulsory heirs. Once duly acknowledged, illegitimate children are entitled to inherit from their father. They are entitled to what the law refers to as legitime, which is that part of the testators estate that cannot be freely given away because the law reserves it for V. Panganiban

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the compulsory heirs. While recognized illegitimate children are compulsory heirs, their legitime, according to the Revilla Law, is equivalent only to onehalf of the legitime of legitimate children. Legally adopted and legitimated children are treated better than illegitimate children because the former enjoy the same rights as legitimate ones. Children conceived and born of parents who at the time of the conception of the former were not disqualified by any impediment to marry each other may be legitimated by the marriage of their parents after their birth. For example, if Genelyns children were conceived and born when Ramon Revilla Sr. was not legally married to anyone and not otherwise disqualified to marry Genelyn (who was single), they could become legitimated children if Ramon Sr. and Genelyn would marry now. But if Revilla Sr. had an existing marriage at the time of their conception, Genelyns children cannot be legitimated. ***

Arroyospleaspolitical,nothumanrightsissue By: Raul Philippine Daily Inquirer 3:28 am | Friday, November 18th, 2011 2share38 36 Former President Gloria Macapagal-Arroyo It would be the supreme irony to allow GMA (Gloria Macapagal-Aroyo) to invoke our most sacred human rights protections to escape justice. That would be her supreme, final perversion of our democratic institutions. While countless voices have correctly quoted human rights law, our democracy must recognize GMAs pleas as a political, not human rights, issue. Our Bill of Rights is our democracys greatest triumph. It is counter-majoritarian; it empowers the weakest member of our society to stand against the most powerful members. Wind and sunshine may enter the humblest hovel, but the king must first knock at the door. The Bill of Rights is applied by the courts with very strict scrutiny in favor of the disadvantaged for whom those political processes ordinarily to be relied upon to protect minorities historically do not work: From the Maguindanao massacre victims to millions of starving children who might be fed and clothed with the money from the fertilizer and ZTE scams. That is why we must pierce legal rhetoric to see what is really at stake. Portrayed as victim One, Gloria Macapagal-Arroyo has been portrayed as the victim boxed into a corner and fighting for her survival. Lest we forget, the supposed underdog here is a former President and now a member of the Philippine Congress, with loyal allies and appointees in high places, with a formidable war chest at her disposal, much of it our own money, the criminal complaints say. She is not a political nobody by any stretch of the imagination. Two, if there was any legal sleight of hand, it lies in the TRO, which consolidated the separate cases of Gloria Macapagal-Arroyo and Jose Miguel Arroyo. In a discussion of this case with some law school classmates, it was asked: How did Mike get to benefit from Glorias medical emergency? Consolidated petitions Gloria and Mike filed two separate SC petitions to challenge their respective watch-list orders. Consolidating the two petitions looks procedurally innocuous. After all, since both cases deal with the same issues (the invalidity of the watch-list order) and ask for the same remedies (the issuance of an allow-departure order), why not indeed hear them together? Going by newspaper accounts, only Gloria, but not Mike, has invoked a medical emergency to be allowed to travel. And yet when the ban on Glorias travel was lifted, Mike likewise became free to leave by virtue of the consolidation. Three, the Arroyo camp makes it appear that all that is at stake now is a mere temporary restraining order, emphasis on temporary. They are correct, but only if we look merely at the surface. After all, the issue is the validity of the watch list powers of the Department of Justice (DOJ), and the TRO does not purport to settle that question on the merits and with finality. The TRO is an interim measure taken while the merits are still pending. It is merely preliminary and provisional in character. But lest we forget, if she doesnt return, all the pending cases are effectively frustrated. Exhibit A Her own versions of her health condition raise many questions. Her list of destinations are mostly (not all, it turns out) nonextradition states. And finally, even if she finds herself in an extradition state, she can still claim asylum as a refugee, or at the very least, invoke the states duty of non-refoulement, to not return a person to the country of origin where she faces the risk of persecution. When she applies for asylum, videotapes of the airport drama of Tuesday night will be Exhibit A. Secretary Leila de Limas insistence that the TRO is held in abeyance pending reconsideration can be seen as reflecting its true nature as potentially the permanent disposition of the Arroyo charges, or an attempt to buy time while the DOJ actually files at least one case against Arroyo and secures a judicially ordered hold-departure order or, lastly, an outright defiance of the Supreme Court. In case of the last, various voices have warned us that to defy the Supreme Court is to imperil the rule of law that we regained at Edsa I. By defying the court, De Lima calls the bluff, as if to say: The court is damaged goods. It is they who jeopardize our rule of law by lending their imprimatur to impunity. Political solution I would be the first to call for the rule of law, but the image of GMA the human rights victim gives pause. As the Inquirers editorial called for, this issue needs a political, not a strictly legal, solution. We must stop looking at the neckbrace and wheelchair in a vacuum and allow our democracys checks and balances to play out at the very highest level. It has been said that the Supreme Court can withstand defiance, but it cannot withstand ridicule, and the Arroyo court has clearly dissipated its reservoir of public trust. The ultimate guardian of our Constitution is We the People. What De Lima is really doing is, beyond the Constitutions explicit text, asking people to recognize that this is really a political issue. President Aquino seems willing to be judged by history alongside Arroyo and the Arroyo court. Perhaps we should let him. C. Pangalangan

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Legit President checks SC The textbooks say that to condone a secretary of justice ignoring a Supreme Court order is to go down a slippery slope. However, history has shown that when the referee is punching alongside a boxer, the Filipino people have been ready to throw away the rulebook and reclaim their ultimate authority at Edsa. Faced with GMA as human rights victim, this is not the best time to demonstrate our commitment to rule of law, to grant a reviled former President her fundamental right to travel, but the worst time, to allow her to escape with impunity in a final, irreparable mockery of the rule of law. Whereas in 2006 a respected Supreme Court deployed its powers to check a dubious President in Professor Randolf David v. Arroyo, today should we not allow a legitimate President to deploy an extraordinary power to check a dubious Supreme Court? The Presidents greatest and perhaps most desperate check on the judiciary is to ignore it. In a famous fictional account, President Andrew Jackson ordered: John Marshall has made his decision, now let him enforce it! It is said that the judiciary wields neither purse nor sword, and its sole means of enforcing decisions lies in its moral authority. Perhaps we should allow the President to confront a court that has lost it.

Would-belaughingstock Philippine Daily Inquirer 10:36 pm | Sunday, November 13th, 2011 1share26 24 Whether former President Gloria Macapagal-Arroyo should be allowed to go abroad to seek medical treatment despite several high-profile plunder and election cheating charges shes facing is a question that obviously involves constitutional and legal issues that in the end may have to be resolved by the Supreme Court. While most of her supporters and defenders invoke the freedom of travel and abode that is enshrined in the Constitution, the powers and prerogatives of the state to ensure that the justice system operates credibly and firmly should also be given thoughtful consideration. Justice Secretary Leila de Lima defended the governments position thus: To have [our legal system] depend on faith and on the goodwill of the defendant/respondent is to make our criminal justice system the laughingstock of the entire world. The Department of Justice has thus denied Arroyos request for an allow-departure order so she can seek medical care abroad. The DOJ has put the former president, now a representative of Pampanga, in its watch-list order (WLO) based on DOJ Administrative Circular 41 which limits a persons right to travel in the interest of national security, public safety or public health. The rules say that an allow-departure order must be based on some exceptional reason. De Lima said Arroyos medical condition is not the life-and-death case that qualifies as an exceptional reason. Besides, Arroyo has given disparate versions of her condition. Initially, her doctor certified that she had metabolic bone disease. But another doctor recommended later a bone biopsy first to determine whether or not she had the disease. Days later, another doctors medical abstract didnt mention it at all. And a little later, her doctors were talking of another problem, hypoparathyroidism. Moreover, for someone who purports to be sick, Arroyo has presented an itinerary abroad that would daunt even Superman. She has scheduled nonmedical meetings in New York for the Clinton Global Initiative, and in Geneva for the International Commission against the Death Penalty. How can someone so sick have the energy to attend those meetings? In addition, for someone seeking medical treatment, Arroyo seems to be going on an intercontinental tour as she lists a wide variety of countriesItaly, Austria, Singapore, Germany and Spainall of which do not have an extradition treaty with the Philippines. Her itinerary is a tourists itinerary, not a medical patients. The government has therefore serious reasons to doubt Arroyos real reasons for traveling abroad. But the Bill of Rights says, Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law. However, as former UP Law dean and Inquirer columnist Raul Pangalangan pointed out, in the past the high court upheld the power of the Presidential Commission on Good Government to issue hold-departure orders against persons [who are] known or suspected to be involved as Marcos cronies. In addition, the Court, citing public safety, also upheld the power of the labor secretary to issue a deployment ban or to regulate the deployment of migrant Filipino workers. But of course, in upholding the powers of the executive agencies in regulating the right to travel, the Court cited their charters on which those powers are said to be incumbent or suggested. In Arroyos case, the bone of contention appears to be the legal and constitutional validity of the WLO system itself. The WLO was issued by the DOJ purportedly pursuant to its Administrative Circular 41 (which the Arroyo administration itself issued). The circular is meant to implement the second clause of the Constitution limiting a persons right to travel in the interest of national security, public safety or public health. But some legal pundits question whether the DOJ can issue a WLO based only on an administrative circular because the Constitution itself uses the phrase as may be provided by law. The word law definitely means an enactment of Congress and not an administrative circular. Arroyo has the right to seek medical treatment anywhere, but this should be balanced by the states right and duty to ensure that the justice system works credibly and effectively. If she is allowed to leave the country and then refuses to return to face the charges against her, then the justice system will be left holding wretched stalks of embarrassmentand could indeed end up the laughingstock of the entire world.

PuzzlingoverDOJcirculars By: Fr. Philippine Daily Inquirer 10:35 pm | Sunday, November 13th, 2011 6share52 44 In the controversy over the right of former President Gloria Macapagal-Arroyo to seek medical assistance abroad, DOJ Circular 41 has played a very central role. After some effort to understand it, I would conclude that Circular 41 is humorous were it not for the fact that it plays around with an important constitutional right. DOJ Circular 41 begins with a Whereas clause saying that Supreme Court circulars clearly state that Hold Departure Order shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts. But the Whereas clause immediately adds that the Supreme Court Joaquin G. Bernas

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circulars are silent with respect to cases falling within the jurisdiction of courts below the RTC as well as those pending determination by government prosecution offices. In the face of this silence of the Supreme Court, the DOJ (but some time before the current secretary), decided to make up for the Courts silence. The DOJ did so by an act of supreme creativity authorizing itself. The first question, therefore, is whether the DOJ has the authority to fill out what it considers lacunae or deficiencies in Supreme Court circulars. The answer should be obvious. Needless to say, jurisprudence has repeatedly said that the Supreme Court has authority to restrict the movement of those under custody of the law. One is under custody of the law when one has been arrested or has submitted to the authority of court. This is far from the situation of GMA. The DOJ is still trying to figure out whether or how to charge her in court. We must therefore ask whence the DOJ got the power to restrict travel. The Constitution says that the right may be curtailed in the interest of national security, public safety or public health, as may be provided by law. A DOJ circular is not a law. Is there a law authorizing the DOJ? Circular 41 answers that question by asserting, (and I quote), that apart from the courts, the Secretary of Justice, as head of the principal law agency of the government mandated to, inter alia, investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services, is in the best position to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individuals right to travel. On this basis, Circular 41 concludes that therefore the DOJ has authority to issue restrictions on travel. Circular 41 does not consider this as sacrificing an individuals right to travel. In fact, however, this attempt to justify DOJ authority was not invented by Circular 41. It was copied from DOJ Circular 18. DOJ Circular 18 for its part cited Section 3[1], [2] & [6], Chapter I, Title III, Book IV, E.O. 292 as source of its authority. EO 292 is the Administrative Code promulgated when Cory Aquino still had legislative power. We must therefore look at these cited provisions of the Administrative Code. What do they say? The cited Section 3 enumerates the powers and functions of the secretary. Paragraph 6 of the section authorizes the DOJ to [p]rovide immigration and naturalization regulatory services and implement the laws governing citizenship and the admission and stay of aliens. Thus the DOJ has jurisdiction over the Immigration Bureau. But this is hardly applicable to the situation of GMA. She is not an alien immigrant but a native citizen of Pampanga. Paragraphs 1 and 2 also authorize the DOJ to (1) [a]ct as principal law agency of the government and as legal counsel and representative thereof, whenever so required; and (2) [i]nvestigate the commission of crimes, prosecute offenders and administer the probation and correction system. The two paragraphs are a general grant of prosecutorial and investigatory powers. In other words, Circulars 18 and 41 are saying that, since the justice secretary has prosecutorial authority, she can, in the exercise of that authority, limit the right of people to travel. Following this logic, this means that the justice secretary can dispense with the limitations of the Bill of Rights in the name of administration of justice. The current secretary heartily agrees; but that seems to me a very dangerous kangaroo leap. What we see therefore is that, in the handling of the GMA case, there clearly has been no attempt whatsoever to link the restriction to national security, public safety, or public health as required by the Constitution. True, a health officer was brought into the picture, but more as an exorcist and not about public health. It was all about the private health of GMA. What is obvious is that there has been a deliberate effort to hide the constitutional issue in a smorgasbord of words. And to think that President Aquino is even willing to throw in peoples money for importing medical specialists just to keep GMA home! We eagerly await how the Supreme Court will deal with this conundrum. I hope that action on the matter, whether a final decision or a TRO, will come from the entire tribunal and not only from one justice. Already some sectors are nervous about the fact that the case has fallen initially into the hands of a known friend and ally of the President.

Flightandplight By: Artemio Philippine Daily Inquirer 11:55 pm | Saturday, November 12th, 2011 0shareNew 0 Flight is an admission of guilt, exclaimed Senator Ramon Bong Revilla Jr. upon learning that his half-sister, Maria Ramona Bautista, sneaked out of the country the day after her full blood brother Ramgen Bautista was shot and stabbed to death. The police tagged Ramona and her younger brother Ramon Joseph (RJ) as prime suspects in Ramgens murder. Ramonas flight. During an interview, the senator said: She [Ramona] should face this. Her brother RJ is in jail. With her departure, it is like telling everyone that the accusations are true. If Senator Revilla is correct, does that make Sen. Panfilo Ping Lacson, guilty of the double murder of Salvador Bubby Dacer and Dacers driver Emmanuel Corbito? Like Ramona, Lacson fled on Jan. 5, 2010 before charges against him could be filed in, and a warrant of arrest issued by, the courts. So, too, is the desire of former President Gloria Macapagal-Arroyo to fly abroad an admission of guilt? Per our Supreme Court, Flight means the act of evading the course of justice by voluntarily withdrawing oneself to avoid arrest or detention or the institution or continuance of criminal proceedings. The unexplained flight of the accused may, as a general rule, be taken as evidence tending to establish guilt. (People v. Ayupan, Feb. 13, 2002) To recall, RJ Bautista and two other suspects, Roy Francis Tolisora and Michael Nartea, were promptly arrested and taken into police custody. But Ramona tagged as a co-conspirator was allowed to fly to Hong Kong en route to Turkey, for the simplistic reason that no warrant of arrest or holddeparture order had been issued against her. To the plaint of RJs lawyer that his client was detained illegally without a court-issued warrant, the Paraaque police, citing the rule on in flagrante and hot pursuit arrests, reasoned that: (1) an offense the killing of Ramgen had just been committed; and, (2) the police had probable cause to believe that RJ had committed it. If that were so, why then did they not also arrest Ramona? Had they done so, there would have been no gnashing of teeth over Ramonas flight, no finger pointing on why no hold-departure order was issued, no need to cancel Ramonas Philippine passport, no need for an Interpol red notice and no need for the more intricate process of extraditing her from Turkey. V. Panganiban

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Lacsons flight. Note however that flight is damning only when unexplained; only when unrebutted by contrary evidence. Though admitting that evading arrest may be legally difficult to justify, Lacson was in hiding for 14 months, from his disappearance on Jan. 4, 2010, until he reappeared on March 26, 2011. He thus avoided detention as a consequence of the non-bailable double murder case filed against him a month after he fled. Lacson aborted his flight only after the charges against him were dismissed and the arrest warrants nullified by the Court of Appeals (CA) on Feb. 3, 2011. By tanking the charges though Lacson was still at large, the CA encouraged lawlessness and disrespect for the rule of law. However, the CA explained that the Supreme Court allows petitions for certiorari even when the accused is at large and evading arrest. For Lacson, however, the issue of whether he could be indicted anew for the Dacer-Corbito case is still open since the CAs decision was based on lack of probable cause, not on an acquittal after Lacson had been arraigned and pleaded not guilty. The defense of double jeopardy attaches only after the accused has been arraigned. Glorias plight. Compared to Lacsons, former President Gloria Macapagal-Arroyos plight is a bit more complicated. She cannot go abroad due to a watch-list order (WLO) of Justice Secretary Leila de Lima. In her Supreme Court petition filed on Nov. 8, Arroyo insists that her constitutional right to travel cannot be impaired except in the interest of national security, public safety or public health, as may be provided by law. Au contraire, De Lima cites Department of Justice Circular 41, promulgated ironically during GMAs reign, authorizing her to issue the WLO. To be sure, the oft-cited Supreme Court decision on the right to travel (Marcos v. Manglapus, Sept. 15, 1989) barred the return of former President Ferdinand Marcos for reasons of national security even when not provided by law. This policy-oriented interpretation of the Constitution tried to balance this constitutional right with the national interest. GMAs petition asks for a temporary restraining order (TRO) to enable her to fly while her case pends. Clearly however, an ex-parte TRO will practically decide the whole case without any hearing. So it may be best to require respondents to comment on the petition and to call for an early oral argument. This, I think, is the fair and transparent way of handling this paramount case with far-reaching consequences. I believe that every litigation is unique and should be decided based on its specific context and facts. As aptly put by US Justice Oliver Wendell Holmes, general propositions do not decide specific cases. Yet, the flight and plight of Ramona, Ping and Gloria find some commonality and traction in the right to travel of suspects in capital, non-bailable offenses, suspects who may not want to be detained while their cases slowly grind. Is the government really helpless in preventing flight on the suspects invocation of their right to travel? Can this general invocation decide their plight sans their unique context? The oral argument could provide some answers. Abangan!

WhostoblameifGloriadoesaRamona? By: Raul Philippine Daily Inquirer 9:17 pm | Thursday, November 10th, 2011 1share59 57 Justice Secretary Leila de Lima rightly says: To have [our legal system] depend on faith and on the goodwill of the defendant/respondent is to make our criminal justice system the laughingstock of the entire world. The Department of Justice has denied former President Gloria Macapagal-Arroyos request for an allow-departure order to seek medical care abroad. There are two tests to determine its validity: first, whether the DOJ meets the requirements of its own circular on departure restrictions and, second, whether the DOJ circular respects the right to travel under the Bill of Rights. The DOJ rules say that an allow-departure order must be based on some exceptional reason. To the secretarys credit, her order actually takes Arroyos word on her medical condition and travel plans, and yet concludes: its not the life-and-death case that qualifies as an exceptional reason. One, there are discrepancies in Arroyos versions of her medical condition. Initially, her doctor certifies that she has metabolic bone disease. The day after, a second doctor says that the she may require a bone biopsy to determine if she has that disease. Two days later, her third doctors medical abstract doesnt mention the disease at all. Four days later, her doctors brief Health Secretary Enrique Ona without mentioning the disease at all, and instead speak of another problem, hypoparathyroidism. On the other hand, if there were any life-threatening moments, it was during the three major operations Arroyo already had, and her own Filipino doctors have declared them largely a success. Finally, Glorias itinerary includes non-medical meetings: in New York for the Clinton Global Initiative and in Geneva for the International Commission against the Death Penalty. The DOJ asks: How can someone so sick have the energy for such meetingsunless of course the medical treatment is not entirely necessary and urgent? Stated plainly, you saw her photo with the neck braces and other contraptions, so will she shake hands with Bill Clinton wearing that brace? In summary, one doctor says she has the disease, the next says she still needs to be tested, and later maybe not anymore or maybe for something else. At best, she needs to be tested and that test is conducted regularly in the country. Two, Arroyos travel plans belie her intent to skedaddle Philippine jurisdiction. Even for medical care, she fails to specify the countries and merely lists Italy, Austria, Singapore, Germany and Spain as her options, in the words of the DOJ, an ambivalence in her country of choice of medical consultation and treatment. To top it all, these five states are non-ambivalent on only one thing: they are non-extradition states! Once she gets out, theres no forcing her back. This brings us to the second test of validity, namely, the constitutional right to travel. The Bill of Rights says: Neither shall the right to travel be impaired except in the interest of national security, public safety or public health, as may be provided by law. C. Pangalangan

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To start with, the Supreme Court itself has ruled that the right to travel is not absolute. The Court has upheld the power of the Presidential Commission on Good Government to issue hold-departure orders against persons [who are] known or suspected to be involved as Marcos cronies. Yet that power was not explicitly granted in the PCGGs charter, and was merely implied from its power to conduct investigation[s] and restrain any [act] that may render moot and academic, or frustrate or otherwise make ineffectual [its] efforts. In another case, the Court also upheld the power of the secretary of labor to issue a deployment ban. The power to regulate the exit of our migrant workers is encompassing, to the chagrin of legitimate OFWs who simply want to earn an honest living, including overseas Filipino professionals who are harassed at the airport with queues and inutile paperwork each time they visit family. Yet the Court, citing public safety, has upheld the DOLEs powers. There is an impression held by many (including myself initially) that these departure restrictions may be issued only by courts. Not so, as both cases demonstrate. Both departure constraints were issued merely by executive agencies, not by courts. Neither the Constitution nor the Supreme Court requires a judicially issued order. So all that we now need is a statutory anchor for the exercise of the DOJs rule-making power. That law is the Administrative Code, which defines the powers of the DOJ, and the interest involved is public safety, as the Supreme Courts DOLE decision has broadly construed it. The statutory basis lies in the DOJs power to prosecute crime and punish criminals, which includes keeping those under investigation within reach of Philippine courts. It is a mere extension of its prosecutorial power to subpoena under pain of contempt. If Arroyo goes to a non-extradition state and insists on staying for as long as she claims is medically necessary, Philippine courts become powerless to bring her before the bar of justice. Since all complaints against her are non-bailable, her promise to return, says the DOJ, without any form of guarantee whatsoever is practically worthless. The attainment of justice cannot depend on such flimsy guarantees . . . her mere say-so that she will return, when the temptation to simply escape stares us in the face. In the public debate, its as if we are torn between two extremes: the legalistic, wherein we take Arroyos word without inquiring into her truthfulness, and the common sense, wherein we recall all the times she cried wolf and evaded justice. That is a false dilemma. There is enough law to vindicate common sense. All thats needed is the audacity to vindicate justice.

Onthewatchlist Philippine Daily Inquirer 12:07 am | Wednesday, November 9th, 2011 0share56 55 Ah, how the tables are turned. In June 2010, then President Gloria Macapagal-Arroyo approved the issuance by Justice Secretary Alberto Agra of a circular governing the departments issuances and implementation of hold-departure orders, watch-list orders and allow-departure orders. Section 2.b of the circular specifically says a watch-list order may be issued by the DOJ against the respondent, irrespective of nationality, in criminal cases pending preliminary investigation, petition for review, or motion for reconsideration before the Department of Justice or any of its provincial or city prosecution offices. Arroyo must now be ruing giving her imprimatur to that otherwise innocuous circular. Just over a year later, her own name is on a DOJ watch list, placed there by incumbent Secretary Leila de Lima in the wake of several cases of plunder and graft that have been filed against Arroyo, plus a poll fraud case relating to the May 2007 elections that she and her husband, former First Gentleman Jose Miguel Arroyo, also face. These cases all happen to be under preliminary investigation at the DOJ, which puts the department on solid legal ground, based on the Arroyo administrations own circular, to inscribe her name on the watch-list. To hear it from Arroyo lawyer Raul Lambino, however, there is nothing more base or fouldangerously evil, in his overabundant phrasethan the DOJ watch list. We believe that the evil called the watch-list order of the DOJ secretary, which has dangerous effects far greater than a hold-departure order issued by the regular courts, would still be around even if De Lima will allow the former president to leave, Lambino said, referring to Arroyos request for travel clearance from the Aquino administration to seek medical treatment abroad. Such a dangerous evil must be obliterated once and for all for the sake of every individual in the country. Unless and until the Supreme Court rules on this fundamental issue, everyone will be at the mercy of De Limas whim and caprices. So, in Arroyos time, it was par for the course to issue a watch-list order. This time, when the law has unexpectedly boomeranged on her, it has morphed into a dangerous evil with dangerous effects, threatening the very life, liberty and happiness of every citizen of the republic. Lambinos ululation would hold more merit if there was a smidgen of acknowledgment there that Arroyos pending legal troubles do place her squarely within the sights of the very regulation she herself had promulgated. There might no longer be any question that Arroyo is sick and requires urgent medical treatment. There remains, however, the question of whether its worth the risk to let her fly out of the country and see justice subverted instead when she flees the multiple charges awaiting her here. Arroyo and her camp must forgive the publics cynicism in this matter. The former president has not exactly been a model of candor and sincerity in her 10-year tenure in Malacaang, and even beyond, when she used her still-considerable political clout and material influence to dismiss, diminish, stall and frustrate questions and investigations into her scandal-plagued administration. Truthfulness is a virtue that seems to have long fled the Arroyo character, from her broken promise not to run for reelection, to the unresolved Hello, Garci affair, to ZTE and its sordid by-products of kidnapping and bribery, to the helicopter mess that her husband could not even be bothered to testify about in person, preferring rather to mock the publics credulity by foisting on it, for the second time, his patsy of a brother as the fall guy. Even Arroyos allies know any assurances from her that she would come back and face the music wont hold any water anymore with a largely skeptical country, hence their appeal to absolutist scenarios to justify her request. No doctor in this country, they insist, is good enough to treat her bone disorder

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a condescension that has earned them the ire of the Philippine Medical Association, which, while conceding that Arroyo has as much right as any patient to choose her own doctor, also says the countrys top bone specialists are as good as anyone whom Arroyo could tap abroad. That she has been afflicted by what looks like a serious illness is not Arroyos fault. But that she has to labor under the impression that shes not above using her condition to escape accountability and the reach of justicesadly, Arroyo has no one to blame but herself.

SpeedingupjusticeinMaguindanaomassacre By: Artemio Philippine Daily Inquirer 11:29 pm | Saturday, November 5th, 2011 1share4 3 The most gruesome murder of this century the senseless shooting, mangling and back-hoeing of 57 defenseless civilians (32 were journalists) in Maguindanao province on Nov. 23, 2009 was allegedly masterminded by the powerful Ampatuan clan and carried out by 187 malefactors. Unfortunately, the murder case is at present still languishing after two years despite the trial courts singular effort in hearing it twice a week with two witnesses per hearing day. More gutsy prosecution. Given the judiciarys clogged dockets, cases are on the average heard only once a month. But even at the already faster hearing rate, the Maguindanao case could still take forever, considering its complexities and technicalities. Thus, to further speed it up, Judge Jocelyn SolisReyes recently directed the prosecution to be prepared with five or six witnesses for every trial day and suggested, per gmanews.tv, that the case be heard no longer just twice but thrice a week. The prosecutors balked at this order of Judge Reyes, saying that it is extremely difficult to prepare five witnesses per trial day three times a week, or a total of 15 witnesses per week. They explained that the witnesses have to be transported to Manila from Maguindanao, interviewed patiently via interpreters for they speak neither English nor Pilipino, and persuaded that it is safe for them to testify, given their families vulnerability in their remote, insecure hometowns. So too, the government lacks the funds and personnel to tend the witnesses, and to house and feed them while the trial lasts. Problems indeed the prosecutors have, but it is far better to face and solve them now than to risk delay. Time has a way of warping justice, of making witnesses forget, or lose interest in the case, or become easy prey to corruption, undue influence and outright bribery, or worse, die. They could one day disappear or become strangely inaccessible. Witnesses must be presented and cross-examined in person during the trial, otherwise the case cannot prosper. Documents could be misplaced or destroyed. A little more diligence, a little more patience, a little more gutsiness, the prosecutors need. No-nonsense judge. The trial court itself is battered by meager finances and logistics. It lacks competent interpreters; many of the witnesses speak only their local dialect with nuances and shades of meaning not easy to translate and transcribe. Of course, Judge Reyes has many other cases to hear and decide. Should the Maguindanao trial drag on for say 10 years, she though eminently qualified may lose the chance to be promoted to the Sandiganbayan or the Court of Appeals, just because she has to preside over this momentous but time-consuming trial. Should she be promoted, or changed as presiding judge in midstream, her replacement to be able to decide properly would need to read meticulously thousands upon thousands of pages of records and testimonial transcripts, aside from hearing more witnesses and examining more pieces of evidence. Such eventuality would delay the case even more. And I am speaking only of the trial phase. Such midstream change will also deprive the new judge of the opportunity to observe the demeanor of the past witnesses. The basic rule in criminal procedure is that the findings and conclusions of the trial court on the credibility of witnesses deserve great weight and respect because it had the advantage of observing the witnesses demeanor, deportment and attitude under grilling examination on the witness stand, an advantage that would be lost in case of a midstream change of judges. More zealous defense. Most of all, it is the defense that should be zealous in preventing delays and in opting for speed. The accused face a capital offense and are detained while the case pends. Should any of them be eventually acquitted, he or she would have suffered pain and incarceration beyond retribution. Considering that there are 187 accused, each of whom is theoretically entitled to a lawyer who in turn may have different strategies and tactics depending on how they see the guilt or innocence of their clients, the proceedings indeed could be monstrously delayed. And let us not forget the predilection of some counsels to grandstand before media cameras and reporters. Just accommodating each of the lawyers in the courtroom and listening to them object to questions on every technical twist during the trial is a nightmare. Moreover, lawyers may raise interlocutory issues to higher courts thereby interrupting the trial schedule. In fact, the two measures ordered by Judge Reyes (to prepare five witnesses and to hear the case thrice a week) could be brought to a higher court, which would ironically delay the trial should a restraining order be issued. And of course, a judgment on the merits rendered by the trial court could be elevated to the Court of Appeals and later to the Supreme Court, thereby really consigning the case beyond the foreseeable future. The Maguindanao massacre case though already two years in the offingis really just beginning. It will have more twists and turns as it unwinds. My consolation is the fierce resolve of Judge Reyes to tackle the case head-on and to see that justice is done though the heavens may fall. In imperishable Latin, fiat justitia ruat caelum. In this monumental endeavor, she deserves the support of both the prosecution and the defense, and the eternal vigilance of the Filipino people. *** V. Panganiban

DOF, BIR defy SC order on PEACe bonds By Edu Punay (The Philippine Star) Updated November 04, 2011 12:00 AM Comments (1)

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MANILA, Philippines - Despite a temporary restraining order (TRO) from the Supreme Court (SC), theDepartment of Finance (DOF) has pushed ahead with the collection of 20 percent final withholding tax on the Poverty Eradication and Alleviation Certificates (PEACe) bonds and sought the dismissal of a petition by eight banks against the collection of the tax. The SC, in reaction, said the DOF may be cited for contempt for defying a court order. With due respect to the Honorable Court, its TRO dated Oct. 18, 2011 and received by the respondents on Oct. 19, 2011, could no longer be implemented, as the acts sought to be enjoined are already fait accompli (accomplished), the DOF said in its 137-page comment filed with the SC through the Office of the Solicitor General. The SC issued the order pending release of a ruling on the petition against the final withholding tax on the PEACe bonds. The DOF, citing technicality, said it decided to disregard the TRO since it was issued on the same day of the bonds maturity. The bond offer was made in 2001. As the TRO is already effectively moot, the same can no longer be implemented, the DOF said. The DOF also explained that it cannot comply with the SCs order to temporarily place collected taxes in an escrow account without violating Article VI Section 29 of the Constitution, which prohibits money being paid out of the treasury except in pursuance of an appropriation made by law. The DOF added that based on section 218 of the Tax Code, the courts except the Court of Tax Appeals are not allowed to stop the collection of any national taxes. The petitioners against the final withholding tax were Banco de Oro, Bank of Commerce, China Banking Corp., Metropolitan Bank and TrustCo., Philippine Bank of Communications, Philippine National Bank, Philippine Veterans Bank and Planters Development Bank. They argued that imposing tax on governmentbonds is extremely prejudicial to the bondholders, including petitioners who relied in good faith on the Bureau of Internal Revenue(BIR) declaration that the bonds are exempt from final tax. Such unilateral imposition of the 20 percent final withholding tax on the interest/discounts realized on the government bonds only on the eve of its maturity with nary any prior consultation with the petitioners and other bondholders also amounts to confiscation of the petitioners property without due process, petitioners said. Sources said the final withholding tax collected was still with the Bureau of Treasury and has not yet been transferred to the BIR. The government earlier said that it expected to collect about P4.83 billion in tax from the matured bonds. The bonds were issued in 2001 upon the proposal of Code-NGO, which bought the bonds through the Rizal Commercial Banking Corp. in October 2001 for P10.17 billion, a discounted rate, with interest of 12.75 percent. Under the proposal, Code-NGO would purchase the notes and sell them to investors. The estimated net proceeds of P1.45 billion would be used by Code-NGO for anti-poverty projects. Contempt When asked by The STAR if the DOF action may be basis for its being cited for contempt, SC spokesman Midas Marquez said disobedience of or resistance to a lawful writ, process, order or judgment of the court is plainly contempt, which the court can initiate motu proprio. It has to be (contempt) for the court has an inherent power to preserve its integrity, maintain its dignity and ensure effectiveness in the administration of justice by punishing those who defy its order, he stressed. Parties in cases lodged with the high court should avoid invoking technicalities to evade compliance (of orders), especially if compliance is still possible, he said. As what government offices have been doing when issues are raised before the court, they (respondents) should have been more prudent in acting and defer collection of the (final withholding tax) pending verification of the media reports, he said. That is simple courtesy expected of any government official to a coequal branch, he said. With Iris Gonzales

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BringMILFbeforeTheHaguecourt By: Raul Philippine Daily Inquirer 9:32 pm | Thursday, November 3rd, 2011 0share16 14 In pursuit of his all-out justice response to the atrocities by the Moro Islamic Liberation Front, and in addition to his other options, there is one action the President can take: Hale them to the International Criminal Court. It was UP law professor Harry Roque who first broached the idea at a forum at Malcolm Hall, where he was the discussant at a lecture by Sen. Miriam Defensor-Santiago on the International Criminal Court. Reports show that, of the 19 Filipino soldiers killed in Al-Barka, Basilan, several were actually captured alive after the firefight and were killed while in the custody of the MILF. That, Professor Roque rightly says, is a brazen violation of international humanitarian law. International humanitarian law prohibits the wanton killing of detainees under the custody of an enemy. The Rome Statute (the charter of the ICC) protects those members of armed forces who have laid down their arms and those placed hors de combat [out of action] by sickness, wounds, detention or any other cause, that is, even in internal armed conflicts like that which we face in Mindanao. The captured Filipino soldiers fall squarely within that scope of protection. The Statute protects them against violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. The best argument that the MILF can raise to avoid this is to say that ICC jurisdiction is limited to the most serious crimes of international concern and that this was merely an isolated incident. Unfortunately for the Philippine government, that is exactly how its own peace negotiators have described the killings. That is equivalent to the Philippine government shooting itself in the foot. Its like when your own lawyer forgets who his client is. Make no mistake about it. This was not a solitary episode of MILF impunity. Its not as if this was the first time the MILF has committed war crimes. As recently as in 2007, MILF members beheaded soldiers or, in other words, committed violence to life and person, in particular mutilation, cruel treatment and torture, quoting from both the Rome Statute and our own Republic Act 9851, the Philippine Act on Crimes Against International Humanitarian Law. The MILF might also think that it can raise the defense of complementarity, namely, the principle that Philippine courts should have the first shot at prosecuting offenders. Unfortunately for the MILF, that is an argument of inadmissibility that can be raised only on behalf of the Philippine government whose courts can claim to have that first shot. That jurisdictional objection is not available to the MILF. In fact, RA 9851 even gives our local authorities, in the interest of justice, the option to dispense with the investigation or prosecution [if an] international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Finally, from a political standpoint, referring the case to the ICC shouldnt jeopardize the peace talks. Indeed the punishment of crime before an international court should be seen as complimentary to political negotiations toward a peaceful settlement. To start with, the Rome Statute de-politicizes the prosecution of the war crimes. Whether or not the killers should be punished will be decided by neutral judges applying legal standards, not by politicians trading favors on the bargaining table. It doesnt matter what army the accused belong to, what banner they fly. What matters is whether the facts of the case satisfy the elements of the crime. The ICC proceedings should offer the MILF an opportunity to demonstrate its bona fides by surrendering the suspects among its ranks. Apparently the MILF has refused to do so. It should realize that by taking part in a cover up, it actually invites the application of the principle of command responsibility, so that even if actual killers are not identified, its commanding officers can be punished if they either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes. In other words, the MILF makes the job easier for the prosecutors because it is easier to lay the blame on the commanders rather than trace the actual perpetrators of the crime. Reports say that the MILF has called for an impartial investigation by an international body. As they say, be careful what you wish for. The ICC prosecutor is precisely one such independent and impartial investigator. Should President Aquino actually refer the case for investigation by the ICC, the MILF shouldnt complain. It is strange that the Philippines has not seen fit to make use of the ICC, a treaty that we ratified barely two months ago. But even if the Philippine government feels paralyzed and hesitates to exercise its powers under the Rome Statute, its not as if were all helpless. For sure, under the Statute, a trigger mechanism for ICC jurisdiction is referral by a state-party like the Philippines. But if for some reason the Philippine government balks at this optionand that reason, I really would like to knowthat shouldnt stop the ICC from hearing the case. There is another trigger, namely, the ICC prosecutors motu proprio powers to pursue a case on his own, in which case he may seek additional information from non-governmental organizations, or other reliable sources. That should leave the Philippine government enough wiggle room to talk peace without forsaking justice. *** C. Pangalangan

GMAandtherighttotravel By: Fr. Joaquin Philippine Daily Inquirer 12:52 am | Monday, October 31st, 2011 6share62 54 Justice Douglas, in Aptheker v. Secretary of State, said: Free movement by the citizen is, of course, as dangerous to a tyrant as free expression of ideas or the right of assembly, and it is therefore controlled in most countries in the interest of security . . . . That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes. Freedom of movement in Philippine law has evolved through the 1935, 1973 and 1987 constitutions. The watch list order issued by the justice secretary must be measured against the present status of the current constitutional provision. G. Bernas S. J.

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The 1935 provision simply said: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired. The teaching then was that no one could be compelled to change his or her home except in accordance with law. Thus, when the mayor of Manila sought to cleanse the city of prostitutes by sending them to Davao, the Supreme Court stopped him. The Court then said: If [the City Mayor and Chief of Police] can take to themselves such power, then any official can do the same . . . And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen. The 1973 Constitution altered the 1935 text to read: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. The liberty could thus be impaired either upon lawful order of the court or even without such order provided that the restriction was necessary in the interest of national security, public safety, or public health. The phrase within the limits prescribed by law in the 1935 provision disappeared. Thus, the net effect was that an executive officer could impair liberty of abode and of travel even without a prior court order provided only that in the executive officers judgment impairment was necessary in the interest of national security, public safety, or public health. Drastic attempts by the government to control the travel of citizens during the period of martial law did reach the Court. The curtailment took the form of denial of exit permits. The Court had occasion to warn the Travel Processing Center not to treat the constitutional guarantee of the right to travel as an empty phrase in a paupers will. The 1987 Constitution has strengthened the guarantee by splitting freedom of movement into two distinct sentences and treating them differently. The liberty of abode is treated in a separate sentence. It may be impaired only upon lawful order of the court, and the court is to be guided by the limits prescribed by law on the liberty itself. The clear intent was to proscribe practices like hamletting. As to liberty of travel, under the 1987 law, it may be impaired even without a court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations. He can impose limits only on the basis of national security, public safety, or public health and as may be provided by law, a limitive phrase which had disappeared from the less libertarian 1973 text. My questions, therefore, are two. First, in what way will the travel of Gloria Macapagal-Arroyo be a threat to national security, public safety, or public health? Second, by what statutory authority is the justice secretary preventing the exit of GMA? In issuing watch list orders the Department of Justice has relied on its prosecutorial powers as found in Section 3[1], [2] & [6], Chapter I, Title III, Book IV of the Administrative Code. Of these, the only part specifically related to travel is Section 3(6) which deals with the admission and stay of aliens! In effect, the policy being followed now claims even a broader executive discretion than that given under the 1973 Constitution which at least was limited by the needs of national security, public safety, or public health. The limitation on the right to travel must be based on law and not on a mere executive circular. The limitation may also be by legitimate court order under the Rules of Court. As the Court has said in reference to persons out on bail, (and who are therefore under the jurisdiction of a court), the right to travel should not be construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer. The executive department is claiming similar discretionary power and without relation to national security, public safety, and public health. Incidentally, the celebrated case on the right to travel was the ban of President Cory Aquino on former President Ferdinand Marcos return to the Philippines. Since the authority to impair the right to travel must be based on law, there was need to point to a law giving her such authority. The Court found it in the faithful execution clause of Article VII, Section 17. The Court accepted the argument that the return of Marcos then could be a threat to public safety and the stability of the government at that time. Is the justice secretary making such claim even if President Aquino himself has been quoted as saying that he has no objection to the foreign travel of GMA?

SCdidntflip-flop 9:58 pm | Friday, October 28th, 2011 0shareNew 1 The recent decision of the Supreme Court to recall the Sept. 7 resolution of its Second Division dismissing a second motion for reconsideration of the Philippine Airlines (PAL) because of a procedural lapse or procedural mix-up does not show that it flip-flopped. It only shows that the Supreme Court, as it humbly admitted in the past, is not infallible. It is not perfect. Just like any one of us, it can commit a mistake or an error in law or in procedure. In a case, the Supreme Court has acknowledged that it is not infallible and that, if upon examination an error in judgment is perceived, the Court is not obliged to blindly adhere to such decision (and) in this jurisdiction, rectification of an error, more than anything else, is paramount. (Firestone Ceramics v. CA, GR 127022, June 28, 2000) Instead of condemning the Supreme Court for its recall decision, we should be glad that this Court knows how to accept a mistake and makes a public disclosure immediately upon its discovery and tries its best to rectify whatever error it has committed. While I sympathize with the more than 5,000 employees retrenched by PAL on July 15, 1998 who already won in the July 22, 2008 decision of the Courts Third Division, which was affirmed with slight modification by the Courts Special Third Division on Oct. 2, 2009, I am very, very sure that the Supreme Court en banc, which will now decide the Second Motion for Reconsideration of PAL, will resolve the case with immediate dispatch. The Court cannot just ignore such a procedural lapse or mix-up because it will affect proceedings in future cases that might be placed in the same predicament. The better rule is to correct the error now to serve as a guide for future litigants, and their lawyers and the courts. After all, as 18th-century English poet Alexander Pope put it: To err is human and to forgive divine and that A man should never be ashamed to own that he is wrong, which is but saying in other words that he is wiser today than he was yesterday. ROMULO B. MACALINTAL, Philamlife Village, Las Pias City

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By: Raul Philippine Daily Inquirer 12:59 am | Friday, October 28th, 2011 0share5 5

C.

Pangalangan

In Philippine law, we have embraced the welfare state in rhetoric but betrayed it in practice. Yet there is one lesson we can learn from abroad: social safety nets reduce the incentive for corruption among the rank-and-file. Corruption thrives on the need to cushion ones family from lifes uncertainties: accidents, disease, unemployment, the vagaries of old age. A strong social insurance system and a bankable pension system actuarialize those risks. Concededly it wont stop the truly greedy; for them, more money merely whets and does not suppress the craving for even more money. It wont matter to the big fish either; for them, the ordinary employees petty graft is merely loose change. Why even bother? But it will halt corruptions corrosive effects on our moral fabric. As graft spreads to every level of society, social insurance will stop it at the lower levels to which the mass of Filipinos are exposed, and contain the social cancer within the highest levels where the new Ombudsman will now focus on the big fish. I am in Xian, China as I write, attending an international gathering of constitutional law scholars discussing social rights, more familiar to us Filipinos in the language of social justice and the welfare state. There is a global trend to constitutionalize these non-traditional rights. Our country has jumped on the bandwagon, but we should be warned. Its been controversial at best. To start with, the welfare statein which we expect the government to support many of our basic needs has had a spotty track record hereabouts. We are a poor country, and we simply do not have enough resources to help everyone in need. There are wonderful sounding clauses in the constitution, exemplified by the all-time classic: the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. (I wonder what the drafters were smoking when they wrote that.) There are many other guarantees to a right to education, a right to health, etc. But increasingly they seem to be more like hollow promises that serve no practical purpose. Abroad there abound judicial decisions purporting to enforce these social claims, but they too have been widely criticized. It installs judges as administrative overseers, a managerial task for which they lack both the expertise and mandate. It strains their legitimacy and places them on the same footing as politicians eternally playing to the gallery. A Singaporean scholar has remarked: in places like the Philippines, we take pride in the right to housing, but in other countries, people actually have houses. Moreover, insurance and pension plans are typically contributory, which assume that the beneficiary has a job. In our country, that will exclude millions in the informal sector, the micro-level entrepreneurs. While we are taking strides toward universal health care through PhilHealth, for instance, it is certainly difficult to aim for universal coverage for the whole range of other social rights. And then there is the chicken-and-egg dilemma: the welfare state expands the bureaucracy, and the more goodies they are in a position to give away, the more temptations to pocket some. Every new benefit is a new rent-seeking moment. Remember President Gloria Macapagal-Arroyos presidential bid in 2004: health coverage was distributed as campaign largesse and health funds were redirected toward the campaign itself. Social insurance was never intended as an anti-corruption measure. As a tool for social engineering, it was designed to insulate the workingman from the harshness market. It wasnt designed to eliminate the market of bribe-givers and -takers. But we must recognize corruption as the first problem of governance in the Philippines. It distorts democratic elections by giving candidates perverse incentives to run and voters perverse motives to vote. It distorts decision-making when rules are custom-tailored to ensure a winning bidder. It distorts the delivery of government services when lofty goals embraced by higher-ups are twisted into the agenda of the mafiosos in the local bureaucracies. If we recognize corruption as a separate problem, then we should take social insurance as an imperfect but welcome anti-corruption measure. For instance, being contributory cuts both ways. It may be confined to job-holders but that ensures that it has self-sustaining and not dependent on taxpayer subsidies. It may be politically manipulable by petty gods and a profitable racket for clerks, but even if that pollutes 50 percent of all transactions, think of the unpolluted 50 percent. Half-full, half-empty. Take your pick. For too long, we have taken a purely punitive approach to anti-corruption. We began with the Revised Penal Code rules on bribery and malversation. Then we refined it with the Anti-Graft and Corrupt Practices Act. We created the Sandiganbayan and the Ombudsman. We enacted into law the Code of Ethics for Public Officers. Its time we took a preventive approach and seek the pull factors that draw otherwise decent human beings into taking shortcuts. One legitimate source of pressure is the need of parents as breadwinners to protect their families from catastrophic health costs now and aging-related infirmities in the future. Even with a living wageand that itself is already the first hurdlethe workingman still needs the security available only from social insurance and pension funds. At its core, social rights are about peace of mind. Corruption has spread too widely. It has become the norm rather than the exception among public officers. We must start saving their souls before petty bribes become just a regular part of their family budget.

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SC affirms Candao conviction for P21-M malversation By Marlon Philippine Daily Inquirer 2:01 am | Thursday, October 27th, 2011 1share35 34

Ramos

The Supreme Court has sentenced the first elected regional governor of the Autonomous Region in Muslim Mindanao (ARMM) to 153 years in jail for the illegal disbursement of over P21 million in government funds almost two decades ago. In its October 19 ruling, the high court upheld with modifications the guilty verdict handed down by the Sandiganbayan on former ARMM Governor Zacaria Candao, his brother and executive secretary Abas Candao and former ARMM disbursing officer Israel Haron. Abas was meted out a jail term of 731 years while Haron got a 867-year jail term. In a unanimous decision, the tribunals five-member First Division threw out the petition on review for certiorari filed by Candao et al. seeking the reversal of antigraft courts Oct. 29, 2008 resolution. In fine, the Sandiganbayan committed no reversible error in holding that the testimonial and documentary evidence presented by the petitioners failed to overcome the prima facie evidence of misappropriation, the magistrates said. There is, therefore, no merit in petitioners argument that the Sandiganbayan erred in not applying the equipoise rule, the court ruled. Equipoise rule The high court explained that based on the principle of equipoise rule where the evidence on an issue of fact is in equipoise or there is doubt on which side the evidence preponderates, the party having the burden of proof loses. The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, the court said. Chief Justice Renato Corona and Associate Justices Lucas Bersamin, Mariano del Castillo and Maria Lourdes Sereno agreed with the decision authored by Associate Justice Martin Villarama Jr. In sentencing Candao et al., the Sandiganbayan considered the testimony of the lone prosecution witness, Heidi Mendoza, a former whistle-blower and now commissioner of the Commission on Audit (COA). Mendoza, who spilled the beans on the multimillion-peso diversion fund scam in the Armed Forces of the Philippines, led the team of COA auditors which conducted an expanded audit of the ARMM governments spending from Aug. 24 to Sept. 1, 1993. During their audit of the ARMM funds, Mendoza discovered that Candao et al. were responsible for the unlawful release of 52 checks from December 1992 to March 1993 amounting to P21,045,570.64. Candao, who served as governor of ARMM from 1990 to 1993, signed nine of the questionable checks without the required disbursement vouchers.

TheunfinishedbusinessofARMMelections By: Fr. Joaquin Philippine Daily Inquirer 8:55 pm | Sunday, October 23rd, 2011 1share11 8 The Supreme Court, last Tuesday, came out with a decision on what to do with the Republic Act 10153 calling for the synchronization of local elections in the Autonomous Region in Muslim Mindanao (ARMM) with the 2013 national elections. RA 10153 says that, after the expiration of the term on Sept. 30, 2011 of ARMMs elected regional officials, no elections should be held until May 2013. Since that would leave the elective positions vacant, RA 10153 authorizes the President to fill them by appointing temporary officers. Expectedly, petitions for the nullification of RA 10153 were filed with the Supreme Court. Early reports about the decision said that the Court voted 8-7 in favor of the validity of the law. But the score is not really as straightforward as a simple 8-7. It is necessary to look at the various issues involved. Let me attempt this on the basis what has been released on the Internet. First, there is the issue of synchronization. It seems clear from Supreme Court spokesperson Midas Marquez announcement that 15 justices were in agreement on that point. But why synchronize? Even in the early debates on the subject, the support for synchronization was founded on the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with the national elections. This desire is not explicitly stated but it can be deduced from Sections 2 and 5 of the Transitory Provisions. And since the ARMM elections are local elections, it stands to reason that they should be synchronized with other local elections. Moreover, there is another reason given for synchronization peculiar to the ARMM. It is argued that the absence of synchronization in ARMM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. This reason, coupled with the desire for economy, eventually convinced Congress to pass the synchronization law. But should not RA 10153 be subjected to a plebiscite as an amendment to the Organic Act? The simple answer is that RA 10153 is not an amendment to the Organic Act for the Autonomous Region in Muslim Mindanao or RA 9054. The Organic Act did not set the date for regional elections. True, RA 9054 had a date for elections, but it was a date for the first election and not for regular elections. The date set by RA 9054 therefore is functus officio. To say that a plebiscite is needed to amend it is to say that it is an irrepealable law. The date for regular elections is a matter left by the Organic Act to ordinary legislation. The reported 8-7 split was not on the issue of synchronization but on the manner of filling the positions left vacant by the expiration of the terms of elected officials last Sept. 30. It is not a clean split. How to break it down? G. Bernas S. J.

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Eight justices say that the President should fill the vacancies by appointment. They oppose a holdover by the elected officials because a holdover would extend the term beyond the three years allowed by the Constitution. What this means is that a holdover beyond the term is not just an extension of tenure. It would be in fact an extension of term in violation of three-year constitutional limit for local officials. As for the Presidents power to appoint, I believe that it can be justified on the basis of what is called the faithful execution clause found in Article VII, Section 17. In effect this means that when a vacancy exists and there is no law indicating how it is to be filled, the President, in exercise of his residual powers, fills it. But in fact there already is a law. RA 10153 gives the power to the President. Two Justices, however, would recognize only a power of the President to appoint a governor and would call on the Commission on Elections to schedule special elections for the other vacated offices. In my view it is for the legislature and the executive, and not for the Court, to decide how these vacancies are to be filled. I do not see how the Comelec can set an election date different from the date already set by RA 10153. The Comelecs power is only to enforce the law. I have not seen a written opinion of the rest of the justices led by Chief Justice Renato Corona. I understand, however, from the statement of the Supreme Court spokesperson that they see no virtue at all in RA 10153 except for the call for synchronization. They do not recognize the Presidents power to appoint and would have the elected officials holdover until the 2013 elections. The decision, of course, is not yet final because reconsideration is still possible. Already, those who had opposed the passage of RA 10153 are set to go to Court to plead for reconsideration. What could be the final result? With all due respect, let me speculate. First, on the matter of synchronization, it would be difficult to foresee a reversal of the 15-vote majorityeven by a Court that is accused of tending to flip-flop. As to the power of the President to fill all regional elective positions, I do not expect those who reject this totally to budge from their negative position. As to those who would give to the President the power to appoint only a governor, whichever direction they might eventually go will not really affect the majority. What of special elections? Think of the expense, considering that May 2013 is not so far away.

Judicialdecorum Philippine Daily Inquirer 1:12 am | Wednesday, October 19th, 2011 3share57 50 Never before, Supreme Court Chief Justice Renato Corona thundered, has the entire judiciary, even in the days of martial law, been subjected to so much disrespect and lack of civility from sectors we sincerely consider to be our partners in nation-building. At that outburst, later on uniformly described in the media as unprecedented, Coronas audience of magistrates making up the Philippine Judges Association reportedly broke into thunderous applause. Not content with that fulsome gesture, the judges then came out with a statement declaring their support for Corona and the Supreme Court. We are the foot soldiers of the judiciary, let the Chief Justice name the battlefront and we will be there, said outgoing PJA president and Manila Regional Trial Court Judge Antonio Eugenio Jr. Now we know. Judges and justices, those stern, inscrutable interpreters of the law in the popular imagination, apparently have a flair for the melodramatic, too. Let the Chief Justice name the battlefront and we will be there? Someone should tell Eugenio that, instead of resorting to pipsqueak martial imagery to profess his devotion to the cause of judicial pride and honor (a valid impulse, we grant), he and his cohorts in the judiciary could have put their collective voices to better use by calling for greater sobriety, sensitivity and goodwill from all sectors in the roiling debate generated by the Supreme Courts forays into the headlines in recent daysunfortunately, most of them in an unflattering light. The last thing the overheated atmosphere needed was talk of soldiers and battlefronts and warthe sound of a metaphorical gun, in effect, being cocked and presumably aimed at imagined enemies. Then again, perhaps Eugenio was only taking his cue from his boss. It was Coronas rhetoric, after all, that originally huffed and puffed to feverish proportions. That slavish audience he had at the New World Hotel should have included a historian or two, to remind him how far off the mark his estimation of the Supreme Courts fortunes then and now is. To those who still care to remember, the Supreme Court during martial law remains the golden standard for judicial cravenness and servility, as Marcos muscled in on the countrys last bastion of freedom and integrity and reduced it, through fear, coercion and cooptation, into a rubber-stamp for his rule. The dictators most outrageous, power-propping edicts were uniformly upheld by the court, and those the justices didnt dare touch they characterized as political questions that were outside the courts ken. That era of vassalage reached its most shameful moment when then Chief Justice Enrique Fernando was photographed shielding Imelda Marcos with an umbrella. To many Filipinos, wrote journalist Sheila Coronel, that picture of the countrys chief magistrate in a pose of undignified servitude to the unpopular sovereigns of the realm showed the extent to which the spirit of the judiciary, especially that of the Supreme Court, had been broken by martial law. Is there anything in the current Supreme Courts circumstances that remotely approaches the indignities it had suffered in Marcos time, enough for Corona to maintain that his watch by far, only on its first year or so, already merits greater points in the annals of victimhood courtesy of those who, in his incendiary description, are out to pervert democracy and the Constitution for their selfish political ends? Big words. Politicians, for one, arent the only ones mystified by the courts startling flip-flop in the 13-year-old case of the Flight Attendants and Stewards Association of the Philippines, merely the latest and most glaring in its increasingly alarming streak of confused and confusing decisions. Ask ordinary citizens what they think of the Corona courts performance so far, and the Chief Justice might find himself suddenly preferring the vacuous, vastly milder volleys of presidential spokespersons Edwin Lacierda and Abigail Valte instead.

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Couldnt Corona have used one of the rare times the public was hearing from him directly to address the concerns raised about the courts baffling conduct? He chose, instead, to play politician by throwing red meat at his audience. Corona also spoke of judicial decorum, wisdom of silence and sense of dignity in his speech. The words of the countrys Chief Justice, his midnight appointment by former President Gloria Macapagal-Arroyo still an unresolved drawback on his credibility, were in dire need of those same becoming qualities.

Wreath By: Conrado Philippine Daily Inquirer 11:08 pm | Monday, October 17th, 2011 4share89 83 What in Godsor the devilsname is Renato Corona complaining about? He should be glad hes still therethough thats not beyond rectifying. Im glad in this respect that several groups, including the Flight Attendants and Stewards Association of the Philippines (Fasap) itself, are seriously contemplating filing impeachment charges against the justices, chief of them their Chief. Coronas belligerence doesnt impress, it disgusts. Its mind-bogglingly ill-timed. The last thing he should be doing now is fulminating, the first is apologizing. The last thing he should be now is combative, the first is shamefaced. Corona hasnt given justice its crowning glory, he has laid a corona, or wreath, at its feet. After salvaging it and tossing it to a shallow grave. The congressmen say the three branches of government should wave the olive branch at one another, the recent acrimony between the Executive and the Judiciary in particular having just turned exceptionally sour. I think its time for all branches to take a step back and de-escalate the conflict, says Juan Edgardo Angara. Inter-branch squabbling is not good for the country. Why? Why shouldnt it be good for the country? The point of the three branches of government is to unite with the people, not with each other. The point of the three branches of government is to reconcile with the people, not with each other. If all of them are doing their damndest best to serve the people, then by all means they should unite and reconcile with each other, the better to serve them. If one of them is doing its damndest best to screw the people, then the other two should come down on it, and specifically try to remove the people claiming to represent it, the better to spare the people from further torment. That is what checks and balances mean. Coronas sins are monumental. First he has laid a wreath at the meaning of Supreme. That was so from the start. He should never have been there. Corona was a midnight appointee, having been named to succeed the previous chief justice, Reynato Puno, by Gloria Macapagal-Arroyo a few weeks before she was to step down. For services rendered in the past, for services to be rendered in the future. P-Noy would soon void all midnight appointments but Corona would dodge that by the simple ploy of his own court ruling that he was exempted from it. To date, he is the only remaining midnight appointee since the dawning of a new president. What is the business of lawyers? It is to practice law in the grand manner, says Oliver Wendell Holmes. It is to show a breadth of vision, a depth of understanding, a fullness of wisdom so as to make of law a living thing, a thing that goes beyond the text pasted on the yellowing pages of a book tucked in an obscure corner of the library to one that shines forth in all its glory in everyday life, making the law, imperfect as it is, aspire toward justice. If that is so for ordinary lawyers, then that is surely so for justices. If that is so for ordinary courts, then that is surely so for the Supreme Court. That Corona accepted his midnight appointment, that he in fact toiled in the night to secure his midnight appointment, that alone should have voided his right to become chief justice. It betrays its spirit, it betrays its essence. Whatever his own justices say, which too must void their existence. Whatever body of text to justify it they might have unearthed like skeletons after theyve raided laws excavation sites. The business of the chief justice is to practice law in a supremely grand manner. It is not to secure power, and cling to it for dear life, in a supremely sniveling manner, like an Illegitimate President. Certainly it is not to show a capacity for behavior the English have called shameless, the Spanish sin verguenza, and the Filipinos walang hiya. Second, he has laid a wreath at the meaning of Court. That the Court he presides over has done what it has done to the flight attendants, which is to oppress them several times over after they had gone to it for redress, and after they had waited for 13 years, growing tired, growing bitter, growing furious, that is the most unkindest cut of all. That the Court he presides over has made of finality a never-ending story, that salvages justice completely and buries it in a shallow grave. In the past, if you were poor, you could always gamble, notwithstanding that in this country the rich got away with murder, that in your case you could get lucky and the rich might lose. You could always hope that even if the courts of first instance and of appeals had been deaf to your entreaty, the Supreme Court would not. Maybe in your case, the Supreme Court might want to be pogi and decide on the basis of merit and not on the enticement of lucre, and rule in your favor. There was always that chance at least. Coronas Court has removed that chance completely. It has done so not by showing that the Supreme Court would always, or near-always, vote in favor of the rich, but by something worse. It has done so by showing that the Court would never vote at all. Or it has done so by showing that the Court could vote this way or that way, but that wouldnt really matter a hoot because that would never be final, the Court could always reopen a case it has ruled upon with finality. What it has done three times, it can do forever. Why in Godsor the devilsname would anyone ever want to go to court again? Why would anyone go to such lengths, such cost, and such anguish to try to get justice for a case that will go on and on like the song in Titanic or the end of the world itself, whichever makes you cringe more? Corona hasnt just killed the meaning of Supreme, he has killed the essence of Court. All he leaves by way of legacy is: A wreath. SC procedures and flip-flops GOTCHA By Jarius Bondoc (The Philippine Star) Updated October 17, 2011 12:00 AMComments de Quiros

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Last September the Supreme Court Second Division ruled with finality on a labor dispute that had dragged for 13 years. Reinstate the 1,400 retrenched flight attendants, it ordered the Philippine Airlines. A month later the SC en banc recalled the order due to a technical oversight. It should have been the Special Third Division, not the Second, which studied the case. That is based on A.M. No. 99-8-09-SC, adopted two years ago, entitled Amended Rules on Who Shall Resolve Motions for Reconsideration of Decisions or Signed Resolutions in Cases Assigned to the Division of the Court. The Regular Third Division first ordered the employees rehiring in July 2008. Justice Ynares-Santiago, asponente (justice-on-case), denied in October 2009 PALs first motion for reconsideration (MR). Ynares-Santiago and two other members of the Regular Third, Justices Chico-Nazario and Nachura, have since retired. The last two, Justices Leonardo-de Castro and Peralta, were reassigned to other divisions. This automatically made the latter compose a Special Third. The 2009 rule comes into play: if a ponente retires, a new one shall be designated from among the members of the (special) division. This replacement shall handle all subsequent motions for reconsideration or clarification, for deliberation in the special division. PAL happened to file a second MR. To determine the new ponente this should have been raffled off to Leonardo-de Castro or Peralta, as members of the Special Third. Then, three other justices should have been chosen by raffle to complete the special division. So based on the rule, the proper division to handle PALs second MR is the Special Third, not the Regular Second. Still, the case was assigned to the Regular Second, which studied it, unaware of the technical inadvertence. So some lawyers opine that the Regular Seconds reinstatement order of September 2011 should stand. Internal rules, they say, do not deprive jurisdiction of justices to decide cases brought before them. *** The technicality issue is touchy because the en banc acted based on a mere letter of PAL lawyer Estelito Mendoza. For some lawyers the letter was an attempt to skirt the rule prohibiting endless MRs. And since it was a letter instead of a motion, the flight attendants were deprived of due notice of goings-on. Moreover, the jurisdiction issue should have been raised while the case was pending in the Second Division. But all this is now up to the SC en banc to decide. This is not the first time Mendozas correspondence with the SC caused a stir. In January 2009 the League of Cities protested a similar letter in which Mendoza was able to convince the justices to reopen a decided case. It was about the unconstitutionality of 16 laws that created 16 new cities unqualified for such classification. Twice since 2008 the SC en banc invalidated the laws. An entry of judgment already was made. Still Mendoza kept filing more than the one allowable MR, and the SC kept entertaining him. In the end the SC reversed itself and adopted Mendozas line that the 16 cities were constitutional. The PAL and 16 cities cases are the not first times either that the SC has reopened long decided cases and reversed itself. Three instances occurred recently: Valeroso v. Court of Appeals, People of the Philippines v. Romualdez, and United Planters Sugar Milling Co. v. Court of Appeals. The cases already were published in the SC Reports Annotated, as 598 SCRA 41 (2009), 587 SCRA 123 (2009), and 583 SCRA 63 (2009), respectively. Still the SC granted second MRs, then overturned its rulings. There are more. In Manotok v. Heirs of Homer Barque, 574 SCRA 468 (2008), the en banc reopened a division ruling long entered in judgment, and remanded it to the Court of Appeals. In Astorga v. People, 437 SCRA 152 (2004), the SC granted a second MR after denying the first with finality, and then reversed itself to acquit the accused. In Ynson v. Court of Appeals, 387 SCRA 30 (2002), the SC by minute resolution granted a third MR and recalled the entry of judgment.

Freedomofinformation By: Fr. Joaquin Philippine Daily Inquirer 3:48 am | Monday, October 17th, 2011 3share11 7 With the ongoing debate on the urgency or non-urgency of the Freedom of Information bill, one might get the impression that the bill is about a novel right. As a matter of fact, there already is a constitutional provision on the subject. The debate is more about the clarification of the right and about the advantages and disadvantages, or even of the danger, of providing for a statutory version. G. Bernas S. J.

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The constitutional guarantee now reads: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. As can be seen, the provision is both a grant of the right and a clarification that the right may be subjected to statutory limitations. The right was first introduced in the 1973 Constitution. It is an improvement on what was originally proposed to the 1971 Constitutional Convention. The original proposal simply said that access to official records and the right to information shall be afforded the citizens as may be provided by law. It therefore was not a self-executory provision. It needed statutory implementation. The draft was later reworded to make the Constitution itself give the right, but subject to statutory limitations. The significance of this change may be seen when viewed in the light of the pre-1973 case of Subido v. Ozaeta. The question presented before the Court was whether the press and, for that matter, the public had a constitutional right to demand the examination of public land records. The Court answered: We do not believe that this constitutional right [freedom of the press] is in any way involved. The refusal by the respondent does not constitute a restriction upon or censorship of publication. It only affects facilities of publication, and the respondents are correct in saying that freedom of information or freedom to obtain information for publication is not guaranteed by the Constitution. Fortunately, however, the Court finally ruled that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate. The 1973 Constitution went beyond the Subido case and recognized the right of access to public documents and records as a self-executory constitutional right. The role given to the National Assembly was not to give the right but simply to set limits on the right granted by the Constitution. The right is now recognized as a public right where the real parties in interest are the people. Hence, every citizen has a standing to challenge any violation of the right and may seek its enforcement by mandamus. The 1987 Constitution has preserved the 1973 text but with the addition of the phrase as well as to government research data used as basis for policy development. The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies which the government wanted to espouse. The reference, however, is to government research data, that is, to the findings of government-funded research and not to the findings of privately funded research over which private proprietary rights might exist. The constitutional right, however, does not mean that every day is open house in public offices. The right given by the Constitution is subject to such limitations as may be provided by law. Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law or from what the Supreme Court has called the inherent power [of an officer] to control his office and the records under his custody and . . . to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights. The question then boils down now to determining the scope of official regulatory discretion. This is what the Freedom of Information bill tries to do. While the Constitution says that the right may be limited by law, the bill in effect seeks to limit the scope of official regulatory discretion. The problem, however, lies in determining what matters are of public concern and what are not. For, certainly, every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that public concern, like public interest, eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen. It is true that the right, as held by the Court, may be asserted by any citizen. But in the face of the unclarity of the meaning of matters of public concern, every time the right to freedom of information is asserted now, judicial intervention can become necessary. Clearly what is needed is balance. The challenge is how to achieve this balance especially in the face of the recognized right of executive privilege, which has also been the subject of much dispute in recent months.

China-Vietnamagreementonsea-relatedissues By: Raul Philippine Daily Inquirer 8:49 pm | Thursday, October 13th, 2011 1share8 2 BANGKOKThe China-Vietnam agreement on the South China Sea territorial disputes made Wednesday this week signals a retreat from the 2002 China-Asean code of conduct. The Philippines has long insisted on a multilateral approach that would consolidate the negotiating position of otherwise isolated, individual states in Southeast Asia bargaining as it were with the largest and most powerful country in the region. The China-Vietnam pact regrettably buys precisely into the Chinese strategy of bilateralizing that dispute. President Aquino has correctly rejected this and has announced plans to raise it with Vietnamese President Truong Tan Sang who is soon expected in Manila for a state visit. The irony is that President Gloria Macapagal-Arroyo actually signed one such bilateral seismic agreement with China in 2004, and it was only upon Vietnams supervening request to Arroyo that the following year Vietnam came on board belatedly. That agreement would eventually hit the headlines at the height of the ZTE-NBN scandal, namely, the controversialand now scuttledTripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea among China, Vietnam and the Philippines. President Aquinos September 2011 state visit to China resulted in a broadly worded joint statement that referred to the Spratlys in this wise: Both leaders exchanged views on the maritime disputes and agreed not to let the maritime disputes affect the broader picture of friendship and cooperation between the two countries. It affirmed the fundamental position that the dispute be resolved under the 2002 China-Asean code of conduct. In contrast, the China-Vietnam agreement of October 2011 results in more detailed commitments: twice-yearly meetings of heads of government-level delegations and a hotline mechanism to deal with issues in a timely manner. However, it does not refer at all to the 2002 China-Asean code of C. Pangalangan

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conduct to which both China and Vietnam are parties. (It cites a document that it calls the Declaration on the Conduct of Parties in the East Sea, but there is no mention whatsoever of the Asean.) The operational clause certainly makes sense but it is the symbolic omissions that are perplexing. The operational mechanism is called for by the most recent military skirmish between China and Vietnam. In May this year, Vietnam claimed that Chinese boats deliberately rammed and cut a submerged cable towed by a ship for Vietnams state oil corporation. Vietnam claimed that the incident happened within its exclusive economic zone. China claimed otherwise, saying these were invasive activities that undermined Chinas interests and jurisdictional rights. China blamed Hanoi for that episode, saying that armed Vietnamese boats were illegally chasing Chinese fishing boats out of the area, and that a fishing net accidentally snagged the research cable. Within the week, Vietnam held live-fire drills in the South China Sea. Vietnam claimed the nine- and six-hour drills were a routine annual training exercise that had nothing to do with the naval episode with China. Reading between the lines is made even more difficult thrice over if those lines were written by diplomats who are lawyers and who are Asian. To start with, the agreement calls the dispute as generically as possible as sea-related issues. To think that barely four months ago, they were on the verge of shooting one another! Next, take the following prefatory statement: [i]n the spirit of fully respecting legal evidence regarding other relevant factors such as history. One would normally assume that, on many issues, China would have history on its side, having in its possession maps dating back to the time, I suppose, when China had just invented paper. But the term legal evidence can also include documents from the colonial period of Vietnam when France secured its colonies borders through treaties with competing European powers. Significantly and rather shrewdly, the agreement likewise aimed at transitional and temporary measures that do not affect the stances and policies of the two sides, and strategically would address in succession easy issues first and difficult issues later. It would boost cooperation in less sensitive fields and enhance mutual trust more difficult issues. That should lay the legal groundwork for joint exploration agreements, but its all rather superfluous since the 2002 China-Asean code of conduct already covers such a possibility. It is the symbolic omissions that are perplexing. It was in Hanoi itself last year in the Asean Regional Forum where US Secretary of State Hillary Clinton raised Chinas hackles by stating that the South China Sea territorial dispute was a US national interest. She concluded: We oppose the use or threat of force by any claimant. During this years July meeting of the same Asean forum, it was reported that China and the Asean countries had actually agreed on the rules to implement their 2002 code of conduct. (Those rules have not been made public, and reports say that the draft rules remained too vague.) If indeed the easy issues first, difficult issues later approach is as wise as it purports to be, China should have no hesitation agreeing to the same terms with the rest of the Asean as a group, exactly as it did in the 2002 code of conduct. Anything less is one step forward for China, two steps back for the Asean. ***

Roughflying Philippine Daily Inquirer 12:45 am | Thursday, October 13th, 2011 2share144 142 The amazing recall by the Supreme Court of its Sept. 7 resolution ordering the reinstatement of 1,400 laid-off flight attendants of Philippine Airlines couldnt have come at a worse time, with members of PALs other union still in the thick of protesting their own layoffs. The way it looks, one might conclude that the management of the flag carrier is waging a to-the-death battle with its labor force, with not a little help from the high court. Is that an unfair perception? To be sure, the full courtand no longer only the Special Third Divisionhas taken up the 13-year-old case involving the Flight Attendants and Stewards Association of the Philippines (Fasap) and has made it a priority, meaning it will also be passed on by the leading lights of the tribunal instead of only a few. But that fact has been snowed under by other facts, among which is that the avowed final resolution was recalled on the basis of a mere letter from PAL lawyer Estelito Mendoza pointing out the technicality that the Special Third Division, and not the Second Division, should have ruled on the matter. Also, that the order of reinstatement (and full payment of back wages) of the Fasap members was issued by the National Labor Relations Commission in July 2000 (which it reversed in May 2004), by the Supreme Court in July 2008, and again by the high court on Sept. 7, 2011, with the statement that no further pleadings shall be entertained. Add to the volatile mix the hotshot image of PALs lawyeran image that took shape in his days as solicitor general and justice minister under the Marcos dictatorship and flourished when he became legal counsel of the Marcoses and assorted croniesand the perception of PAL managements favored position becomes understandable. Which is truly worrisome, because then the Supreme Court runs the grave risk of becoming, in the public eye, ultimately unreachable by workers and the common folk, mere denizens of the ivory tower, no longer Lady Justice in a blindfoldor, as Sen. Miriam Defensor Santiago so piquantly put it, teetering on the abyss of incredulity. Santiago, who, to be understated about it, happens to know her law, has also cited the high courts apparent violation of its internal rules: that no second motion of reconsideration may be filed without its express approval, and only when the original resolution is legally erroneous, patently unjust, or will probably result in irreparable damage or injury. Did Estelito Mendozas letter qualify as a motion, and did the tribunals recall of the Sept. 7 resolution result from any of the instances cited by Santiago?

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It is important that the Supreme Court be seen as hewing de numero to these stipulations, particularly in these times when the memory of its startling flip-flops regarding the cityhood of certain towns remains fresh. It is equally important that the justices be able to show the public the wisdom of their ultimate decision on the layoff of the Fasap members that PAL management claimed in June 1998 was a move to avert bankruptcy. Would the tribunals ultimate decision be the opposite of the one in July 2008, when it said that PAL management was unable to prove being so trapped in the red as to make the layoffs necessary and inevitable? The labor issue concerning the airline owned by tycoon Lucio Tan and its workers has resulted in the occurrence of mass actions causing disruptions in its flying schedules and untold inconveniences to passengersand, because of the street protests, motorists and pedestrians as well. (Were not even mentioning the lost revenues in tourism.) The conflict is also double-barreled, concerning as it does not only Fasap but also the PAL Employees Association (Palea), which continues to protest the layoff of 2,600 workers in the call center reservations, catering, and ground handling service department. The Supreme Court is called upon to display its majesty in resolving the layoff of the Fasap members, which involves, along with the question of the legality of the act, the underlying issues of ageism and sexism. Let it do so quickly. Palea is awaiting the action on its own case by the Court of Appeals even as it wages an apparent losing battle against the insidious practice of labor contractualization.

Impeachthem By: Conrado Philippine Daily Inquirer 10:06 pm | Tuesday, October 11th, 2011 47share859 801 Only a month ago, the Supreme Court spoke thus: PAL appeared to have deliberately omitted the portions of the Courts Resolutionthat not only referred to our original finding that PAL failed to observe the proper procedures and requirements of a valid retrenchment butalso reaffirmed (it). Thus, PAL appears to us to be less than honest in its claim. Wherefore it resolves to deny with finality respondent PALs second motion for reconsideration. No further pleadings shall be entertained. Now it squeaks thus: The wrong division ruled on the case. Wherefore, pursuant to the internal rules of the Supreme Court, the court en banc resolves to accept (the case). The court en banc further resolves to recall the resolution dated Sept. 7, 2011, issued by the Second Division. What did it take for the Court to go in but one cycle of the moon from its Olympian stance to this head-scratching, idiot-faced grinning, Ay mali-spouting dance today? A letter from Estelito Mendoza, Lucio Tans lawyer. It was not a dramatic revelation that it was Fasap in fact and not PAL management that had been less than honest in its claim. It was not a thunderous presentation of new evidence that the flight attendants had in fact been falsifying documents or making erroneous calculations. It was not an earthshaking demonstration that PAL in fact had been overpaying its flight crew or inundating them with benefits. It was in fact: A letter from Estelito Mendoza, Lucio Tans lawyer. A letter that said the wrong division ruled on the case. A letter that had the justices piously saying, Amen. That cynical, mindless, sniveling stupidity cannot possibly come from a Supreme Court. There is no other way to explain this barefaced, in-your-face, dirty-finger-shoving display of naked perfidy. It does not show how much the justices thought about this, it shows how much the justices were paid for this. The issue here is no longer about labor, it is about integrity. The issue is no longer about Fasap, it is about the Supreme Court. The issue is no longer about whether the flight attendants, who have been dismissed unjustly, have a right to be paid what they lost. The issue is whether the justices, who have been dishing out injustice for so long, have a right to exist. They do not. They have no right to exist on three grounds. One is for making a mockery of justice. Or more to the point, for assuring that no one can possibly get any justice. Or still more to the point, for assuring that the rich can get away with murder. That is what their decision to open a case that has been ruled upon with finality means. Final means end. There is no such thing as more final, or most final, or most most final, ad infinitum. This is by no means the first time the Supreme Court has done this, to the monumental chagrin of the poor plaintiff or defendant who thought he had won his case. Ive written about this before and vituperated against this before. In the case of Fasap, this is the third time theyve won their case only to see that victory dashed to pieces. Bob Anduiza, the Fasap president, has a point: That is like having three overtimes in a basketball game not with the score tied but with one team having already won. That is not a game, that is a joke. There can be no justice with a finality that has no finality. Who stands to gain from this? The rich. They can always get a case that has gone against them reopened by buying off the justices. Yes, buying off, lets call a spade a spade. Or bloody murder, which is what they will quite literally get away with. Time is on their side. Money is on their side. The crooks are on their side. Two is for having no business being justices. What idiocy is this that the Second Division had been deliberating on PALs second motion without knowing all along that the Third Division should really be doing it? You hold the life of people in your hands and dont even know you have no right to? If so, then the justices should be stripped of their robes and sent back to law school to learn the basics of court procedure, quite apart from the basics of human decency. If so, then the culprits should have nothing to do with the Supreme Court, they should have to do only with Lucky Me Supreme. My apologies to Lucky Me. While at that, even on a procedural note, isnt there a rule that says that someone might challenge the ruling of a divisionwhether it is the right division or not, or indeed whether the proper forum is a division or the Court en banconly before it has ruled and not after? Three is for being ahole. That is the most solid ground of all. That is the most compelling reason of all. de Quiros

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Do they have any idea what theyre doing to people who have already been victims of a humongous injustice? I dont know which is worse, an owner who runs an airline like a taho factory or judges who run their courts like a talipapa, rulings sell cheaper by the dozen. I do know whats worse than flight attendants being tossed away like used condoms after theyve served faithfully and well. That is being told theyll finally get justice and restitution, only to have those snatched away from them at the last minute. Again and again. That is subjecting them to a roller-coaster ride of joy and grief with no end in sight. To appreciate how that feels, the justices should have their payor forget their pay, their bribeswithheld from them at the last minute. Again and again. With no end in sight. We have only three options. One is to abolish the Supreme Court. Two is to scrap the justices and just appoint Estelito Mendoza, the lawyer of Lucio Tan, Supreme Arbiter. Three, and far more sanely: Freaking impeach them.

THINKING GLOBAL Charterchangefocusesoneconomics By: Dr. Bernardo M. Villegas 12:12 am | Wednesday, October 5th, 2011 0share72 71 Charter change in the past was unpopular because of the general belief that it was a ploy of incumbent politicians to prolong their stay in power through a shift to the parliamentary form of government. Fortunately, all efforts involving Charter change today are focused on amending the economic provisions. There is no talk about reforming the political system. I am glad that the House committee on constitutional amendments started a public consultation and information campaign, the first of which was in Cebu City last September 8, 2011, at 1 p.m. at the Social Hall of the Provincial Capitol, Osmea Blvd. The entire focus will be on introducing reforms in the restrictive economic provisions of the 1987 Philippine Constitution. Needless to say, as I have written many times in previous columns, I endorse fully the following recommended amendments to the Constitution: 1.) The removal of the 60%-40% equity limitations on foreign investors; 2.) Removing the control and management exclusively by Filipinos in companies with foreign equities; 3.) Expanding the role of foreign investors in the exploration, development and exploration, development and utilization of natural resources; 4.) Allowing foreign ownership of industrial (and commercial) lands; 5.) Liberalizing media by allowing foreign investments in media; 6.) Liberalizing the practice of profession in accordance with the principle of reciprocity; 7.) Liberalizing investments in educational institutions by allowing foreign investment in tertiary education; 8.) Extending the 25 years + 25 years land lease agreement. I am convinced that these amendments to our Constitution will significantly help in attracting much-needed foreign equity capital in the form of Foreign Direct Investments (as distinguished from the very volatile portfolio investments in the stock markets). The Philippines, although awash with domestic savings today, direly needs long-term capital for the vast requirements of infrastructures, energy, mining, transport and telecom, and other very capitalintensive investments that are needed in attaining the goal set in the Philippine Development Plan, 2011-2016 of a 7 to 10% growth in GDP over the next five to ten years or even more. Just consider that China has been growing at 10% in GDP for more than 20 years by investing close to 50% of its GDP, compared with the measly 15% rate of investment in the Philippines. he head of the Board of Investments, the leading government agency that promotes investments in the Philippines, Undersecretary Cristino Panlilio, has estimated that we need at least $5 billion of FDIs annually for our GDP to grow at 7% or more annually. Our present level of FDI is less than $2 billion. As stated in a letter written by the Honorable Loreto Leo S. Ocampos, chair of the House committee on constitutional amendments, the abovementioned economic reforms will enable the Philippines to catch up with its ASEAN neighbors in economic growth. He showed in a table accompanying the letter how dismal the Philippine performance in attracting FDIs compared with our peers Thailand, Malaysia, Indonesia and Vietnam, without mentioning China that is in a very different league all its own. The figures for 2003 to 2007 systematically showed FDIs in the Philippines at one-fourth to one-third of the ASEAN countries. Latest figures from the UNCTAD show that from 2008 to 2010, during the so-called Great Recession, the Philippines did even more poorly compared with countries like Indonesia and Vietnam, which are at the same level of development. During those difficult years, we averaged about $1.8 billion of FDI yearly while Indonesia attracted an average of $10 billion and Vietnam about $6 billion. In the World Bank Doing Business Report of 2011, under the category of Ease of Doing Business, the Philippines ranked the lowest in East Asia with a score of 148 compared with Vietnams 78 and Indonesias 121. Even India, which has an impossible bureaucracy and rampant corruption, scored higher than the Philippines at 134. Clearly, a major explanation for the unattractiveness of the Philippines to the outsiders is the restrictiveness of our Constitution and other lawsthat are anti-foreign investors. I fully endorse another major objective of the economic reforms being planned for the Philippine Constitution. In the words of Chair Ocampos, it is the intent of the proposed amendments to make the economic policies more flexible to meet the ever-changing dynamics of domestic and foreign economic environment. The economic provisions should not be carved in stone in the Constitution. Economic policies are better addressed by electorally accountable bodies of government. Simply put, economic questions can easily be remedied by simple legislations. The volatility of the global economic environment, with which our national economy is intricately intertwined whether we like or not, is more obvious than ever in 2011 when all the advanced economies are threatened by a double-dip recession owing to the huge debts that they have accumulated through years of extravagant overspending. This is obviously a time that we have to be wary about over borrowing. To attract foreign capital, we must give preference to foreign equity investments in our capital stock, especially infrastructure, energy and mining. As the leading semi-globalization guru, Dr. Pancaj Ghemawathas written in his new book World 3.0: Foreign direct investment (FDI)foreign companies

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buying, setting up, or reinvesting in businesses in a countryrepresents a long-term commitment even if the rate at which such commitments are entered into varies greatly from year to year. FDI helps transfer knowledge and information as well as capital, and functions, like trade, as a channel for product market integration with the prospect of adding value just as broadly. Granting that it might have served an important purpose of safeguarding national sovereignty during the era of the Cold War in the last century, when small countries like the Philippines were being used as pawns by the world powers, the Filipino First policy no longer makes sense in a more economically integrated world (the appropriate word according to Dr. Ghemawat is semi-globalized). In order to attract more FDIs, direly needed for faster growth that is a pre-condition for attacking poverty, we must purge the 1987 Constitution of its overly nationalistic tone. The first article that has to be amended is that which appears in the Declaration of Principles in Article 2, Sec. 19, which reads: The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos. The irony is that this provision has only preserved the feudalistic and monopolistic structure of the Philippine economy. The absence of competition from abroad has guaranteed the stranglehold that a few families have over the national economy. That is why it would be better to word this Article as follows, as suggested in the letter of Chair Ocampos: The State shall develop a self-reliant, productive and competitive economy that will best serve the interest of the Filipino people. As the Philippine Development Plan insists again and again, economic growth must be inclusive. Not only the economic elite must benefit from Filipino First. The entry of foreign direct investments can have a large multiplier effect that will uplift the masses from poverty as has been shown in the past in the cases of large mining companies that have built roads, schools and other infrastructures in the most remote and impoverished territories of the Philippines. Filipino First must not refer to the feudal lords but to the vast consuming and working masses that benefit from the entry of foreign direct investments.

BacktoCharterchange By: Fr. Philippine Daily Inquirer 3:11 am | Monday, October 10th, 2011 0share6 6 The year 2009 was another year of varied attempts to achieve Charter change. None succeeded. The last was the (Raul) Lambino attempt to achieve change through initiative and referendum. The attempt was shot down for various reasons. First, the issue of whether there was an implementing law for Charter change by initiative and referendum remained unsettled; second, even if there were an implementing law, the procedure followed was fatally defective; third and most important of all, the Lambino attempt was for a revision and not a simple amendment. Initiative and referendum can be allowed only for simple amendment and not for revision. (Incidentally, nobody seems to be thinking of initiative and referendum now.) Another reason for the failure to achieve change was the fact that there was no agreement about the constitutional way of doing it. It was the tendency of those who studied constitutional law under the 1935 Constitution to think in terms of the amendatory process in that Constitution. Thus they tended to see a joint session of both houses of Congress as the first necessary step toward attempting change. Understandably so, because the 1935 Constitution said, The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting separately, may propose amendments to this Constitution or call a convention for that purpose. They failed to see or ignored the fact that the 1987 Constitution is worded differently. It says Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention. The current text says nothing about the necessity of a joint session of both chambers. Understandably so, because the current text was drafted at a time when the Constitutional Commission, working on the draft, was still thinking in terms of a unicameral National Assembly for the Philippines. Hence the current text is an almost verbatim copy of the amendatory provision in the 1973 Constitution which had a unicameral Batasang Pambansa. The understanding was that the text would be adjusted should the Commission opt for a bicameral Congress. The Commission opted for a bicameral Congress, which we now have, but failed to make the adjustment. Hence we have a text which does not tell us explicitly whether Congress should be in joint session or should vote separately if in joint session. It is clear, however, that the function of initiating constitutional change has been given by the Constitution not to the president nor to the judiciary but to Congress. Thus, it stands to reason that whatever gap there is in the constitutional text on the amendatory process is for Congress to fill. Now there is growing acceptance of the proposition that Congress, when acting as a constituent assembly, need not be in joint session but may act the way it does in ordinary legislation (because the Constitution does not require a joint session); but if Congress decides to be in joint session (since the Constitution does not prohibit it), and if they do, they must vote separately (because it is the basic intent of having two houses that the wisdom of decisions be subjected to separate votes). The current leaders of Congress have come to an agreement that the procedure to be followed will be through separate sessions voting by three-fourth votes of all the members of each house as they are and where they are. The procedure will follow the ordinary legislative process of having a proposition approved in one house and passed on to the other for similar action. Will it work? Are we now on a sure path to Charter change in 2011 or even 2012? Not really. It is good to remember that the leadership of Congress is but a small percentage of the total membership of both houses, and that the House of Representatives can easily nullify the votes of the Senate. There are currently 285 representatives and only 23 senators. Even if the Senate should vote unanimously, a majority of the House can always go in the opposite direction. Joaquin G. Bernas S. J.

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There is another factor to consider. The thinking seems to be that the non-joint session process, which I call the fourth mode of change, can give surgical change a better chance; that is, the change can be limited to the economic provisions. But the fourth mode does not prevent anybody in either house from proposing other amendments. The ARMM (Autonomous Region in Muslim Mindanao) situation, a high concern of Mindanao politicians, can be a very inviting subject for amendatory consideration, among other things. Another factor to consider is that the fourth mode of Charter change can still be challenged before the Supreme Court even if only as a dilatory tactic. Although the Supreme Court has no authority to review the substance of proposed changes (except when contrary to jus cogens), it has authority to review the validity of the procedure being followed. Finally, what about the supposed indifference of President Aquino to constitutional change? Legally the President has no role in the amendatory process, neither on the process being followed nor on the substance being proposed. But politically he can influence the vote of his supporters in Congress. Will we therefore have constitutional change this year? Your guess is as good or better than mine. NightmareonVisayasAvenue Quezon City land dispute By: Stephen Philippine Daily Inquirer 12:03 am | Sunday, October 2nd, 2011

L.

Monsanto

Something has gone terribly wrong with the land registration system we copied from the models of a South Australian bureaucrat named Sir Robert Torrens. Now referred to as Torrens title, the certificate of land ownership issued by the government through its sovereign agency (now called the Land Registration Authority [LRA]) is supposed to be accorded the highest respect and authority when it comes to land disputes. The system was meant to provide conclusive evidence of land ownership and relieve such ownership from the uncertainty of unknown liens or encumbrances. In other words, land titleholders under the Torrens system were assured that they could sleep easy and trust the government to keep such certificates wholly trustworthy, worry-free and totally safe from the machinations of land-grabbers. Sleeping on job But if the LRA is sleeping on the job, the nightmare begins. The 24-hectare premium real estate in Quezon City being claimed by Wilfredo Torres is a case in point. Torres said he derived his ownership of the property from ancient documents dating back to the era when grants or titles over expansive tracts of our lands were being churned out and distributed by the Spanish Crown to favored subjects. Through the decades, this vast real estate had been parceled out, transferred and acquired by individuals who had no knowledge of its history and thus merely relied on what appeared on the Torrens title. Innocent purchasers They had every right to do so. One eximious principle governing lands covered by the Torrens system is that third parties who have no knowledge whatsoever of any defect, lien or encumbrance not annotated on the title are deemed innocent purchasers for value and their title indefeasible (perfectly legal and unassailable) against all unknown claims. The law does not require them to look beyond the annotations on the title. As the controversy unravels, it now appears that the LRA had long been aware of the spurious nature of the Spanish titles in question and the other proofs of ownership derived from them through the years, but had done practically nothing to shred those bogus titles to pieces and consign them to oblivion for what they really are: scraps of paper. The question demands a straight answer: How the heck could the LRA have let these anomalies happen right under its nose? Alas, its ineptitudenay, slothfulnesshad enabled Torres to gain a foothold on the real estate he was claiming under those scraps of paper. Voided Spanish titles It may be apropos to note that a Marcos decree had voided such Spanish titles unless they were brought before the courts for judicial confirmation within the time prescribed. That time had long lapsed. At any rate, with the LRAs Johnny-come-lately protestations that those titles were spurious, there was no way the court could have ignored that fact had that agency, after all mandatory notices to it, intervened promptly and more assiduously. How Torres was able to get fast and favorable decrees/judgments from the court so swimmingly is truly one for Ripleys! The register of deeds of Quezon City, under pain of contempt (as in fact he was sent to jail by the court when he first balked at complying on suspicion that they were highly irregular), had no choice but to issue the titles in Torres favor as ordered by the court. As a consequence, Torres is now armed with his own genuine (because court-mandated) Torrens titles and a formidable writ of possession, to boot, empowering the court sheriff to put him in possession of the whole real estate in question. Thus, homeowners in so many gated subdivisions and businessmen in so many commercial and industrial establishments in Quezon City, not to mention the owners of condominium units and townhouses in that neck of the woods (See map) are now being seriously threatened with dispossession and evictiondespite incontrovertible Torrens titles in their own names! Whatever happened to the governments guarantee to imbue such titles with sovereign security? Unkindest cut And here is the unkindest cut: Even if the individual titleholders could file cases in court to establish the genuineness of their own Torrens titles as against the supposedly counterfeit titles of Torres, the docket and filing fees alone would run in the hundreds of millions of pesos given the mindboggling size and the current market value of the property involved. It may be apt to note that at the time Torres filed his own cases to recover the real estate, he might have been able to avail himself of the rule that required him to pay only minimal docket and filing fees because his complaints were then deemed incapable of pecuniary estimation, and therefore exempt from being slapped such fees on the basis of the value of the property he was claiming.

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Regrettably, that praxis is no longer tenable under the new-fangled amendments to Rule 141 of the Rules of Court. By whatever guise a complaint may be filed (such as for annulment of contract or foreclosure of mortgage) recent Supreme Court decisions hold that since the ultimate prayer is for recovery of property, the plaintiff must pay the judicial fees based on the current market value of the property in litigation or the Bureau of Internal Revenues zonal valuation thereof, whichever is higher, plus all amounts claimed as damages and attorneys fees. Even as our Constitution says, no one shall be denied access to the courts by reason of poverty and therefore, arguably, the embattled individual titleholders should breeze through the courts docket sections in filing cases to stop Torres and his goons dead in their tracks, in reality, that is not going to happen. Thus, assuming that the aggregate value of the real estate involved amounts to P100 billion (conservatively), at the going rate of P18,000 plus per P1 million well, anyone can do the math here! Sad to say, indeed, the extremely high cost of seeking judicial redress of grievances in such instances may lead the less-moneyed among us to take the law into their own hands (which is actually happening already with affected homeowners barricading their premises in defiance of court orders!). Corporate land-grabber A few weeks ago, we wrote in the Inquirer a commentary about the brothers who were robbed of their inheritance by a corporate land-grabber. When they tried to sue the corporation to recover the property, they got the shock of their lives: they were required to pay P1.5 million in judicial fees based on the P80-million market value of the property stolen! Unable to pay the cost of seeking judicial redress of their grievance, the brothers could only suffer in silence. Who says crime does not pay? But money is not just the problem. It infinitely gets worse for the beleaguered home and/or lot owners in Quezon City. A writ of possession issued by a court is virtually unstoppable. Current jurisprudence holds that such a writ is a ministerial duty of the court and it has no choice but to have it carried out. Sheriff duty-bound The sheriff and the law enforcers are duty-bound to obey such command (but SWAT teams in full battle gear?). To prove this point, we once fought mightily against such a writ issued by one court on the grounds that having drawn its life from an extrajudicial foreclosure that was already declared void ab initio by another court, the writ was outlandishly inappropriate. Despite all commonsensical argument that nothing, indeed, could come from nothing, the Supreme Court nevertheless ruled that since the nullifying judgment of the trial court was still on appeal and therefore not yet final, the writ was still deemed enforceable! Imagine then the iniquity and egregious injustice to the owner being first kicked out, only to be reinstated later when the nullity was eventually upheld with finality some years later! Was it not the better part of prudence to hold that writ in abeyance? As to the titleholders of the property in dispute in Quezon City, their only hope, most unfortunately, lies with the Supreme Court being persuaded to get out of the box and relax the rules on judicial fees (thereby allowing the individual titleholders to bring suits at reasonable costs) and revisit its doctrinal rulings relating to writs of possession (thereby allowing the individual titleholders to hang on to their homes and landholdings in the meantime)just in this instance. Such technicalities must yield to the urgent demands of the national interest. No doubt, our Torrens system of land registration is under siege and is now shaking at its very core. The LRA, the very agency set up by the government to guard against such anomalies, has miserably failed in its task and mandate. By no means is any of this the fault of the individual titleholders. TRO little comfort While the Court of Appeals might have temporarily stayed the writ of possession for 60 days, this is but little comfort to the homeowners. In the first place, purportedly as intervenors there (they were never parties to the case before), jurisprudence holds that for any such intervention to prosper, it should have been made before judgment was rendered by the trial court whence the writ of possession emanated. Secondly, the only permanent relief they can obtain is via an independent case for annulment of Torres court-sanctioned Torrens titlesthe very same relief sought by the Office of the Solicitor General (OSG) in another civil case, however belatedly. Piggy-backing on that OSG-initiated action may seem like a good idea, definitely more economical for homeowners. But given the uneasy assumption that the OSG might have been hibernating on the job, too, while Torres was doggedly pursuing his land recovery cases in court and succeeding with the OSG only recently waking up to that reality despite earlier obligatory notices, it really does not inspire much confidence. Besides, the homeowners must realize they will have no control of the case, unless they hire their own lawyers to actively handle their complaints-ininterventionin which case the atrocious docket and filing fees will apply!

Overhaul Only the Supreme Court can show the way through this labyrinth. Momentary relief is nothing but band-aid treatment. Nothing short of overhauling the justice system will do. Being supreme in all judicial matters, the Supreme Court alone can change its rules to meet the more substantial interest of justice, its paramount duty. After all, it has time and again harped back on its moss-laden ruling in Alonzo v. Villamorwhich stressed that technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration whenever it decides to set aside its rules in order to better serve the ends of justice and equity. (Monsanto, a trial lawyer, is a member of the Ateneo de Manila College of Law, Class 74.)

OFWtriumphinaHongKongcourt By: Raul Philippine Daily Inquirer 9:44 pm | Thursday, October 6th, 2011 C. Pangalangan

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0share12 11 A Hong Kong court recently ruled in favor of a Filipina maids petition for permanent residency based on Hong Kongs Basic Law, the equivalent of the territorys constitution. The decision pits Hong Kongs declared commitment to the rule of law against its fears of an immigration deluge. It parallels the Filipinos own local debates on whether white-collar professionals should be exempt from the strict exit regulations applied to OFWs. We allHong Kong Chinese or Pinoy go into intellectual contortions to craft class-neutral regulations to camouflage class-based prejudices. It exposes both societiesHong Kongs and Pinoysown self-contradictions, or in the words of a philosopher, the incongruity between the [official political dogmas] they had accepted [and] the social life they in fact lived out in their relations to one another and to their subordinates. Evangeline Banao Vallejos has worked as a maid in Hong Kong since 1986 under a succession of fixed-term contracts. By the time she applied for permanent residency, she had been a Hong Kong resident for more than 22 years, but for the brief intervals she would spend in Manila as required by Hong Kong each time a contract expired. The Hong Kong court found that the entire family of her employer treated her as part of their family, supported her residency application, and would continue to employ her should she gain such residency. She had integrated into the local community, was active in volunteer work [for her] church and wishe[d] to retire in HK with her husband. Her children were all grown up, married and financially independentcausing none of the immigration nightmares raised by critics. In the language of public interest litigation, she was the ideal Hohfeldian plaintiff, a sort of pre-beatification Rosa Parks of the 21st-century civil rights movement. Since its historic handover back to Chinese sovereignty in 1997, Hong Kong has been governed by a charter, the Basic Law, that would secure for the next 50 years the one country, two systems approach to signal the world that Hong Kong will continue to be the center of Asian markets, and signal Hong Kongs people that Beijing would continue to respect their human rights. The Basic Law gave permanent residency to people not of Chinese nationality who entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence. This would give rise to the right of abode, to remain in Hong Kong without any restriction in respect of his or her employment, place of residence and duration of stay. However, the Immigration Ordinance excluded foreign domestic helpers (or FDH in the idiom of Hong Kong law), relying on the definition of the term ordinarily resided. FDH did not meet that test, it was argued, because inter alia they are typically allowed into Hong Kong solely on fixed-term contracts and must leave Hong Kong once these expire; they live in the homes of their employers and do not establish an independent household; they are banned from bringing in their dependents to ensure that they will maintain genuine links in their own country, otherwise the surge in immigration would overwhelm Hong Kongs resources. The court rejected the view. How different is the FDH from any other person employed in Hong Kong under their labor laws? They are equally subject to whatever privations or luxuries any employee faces in the open market. The court also held that the issue of FDH maintaining bonds with the home country is not relevant because what the Basic Law requires is merely ordinary residence. We Filipinos are used to seeing our courts decide highly contentious disputes. In Vallejos v. Commissioner of Registration, the Hong Kong courts faced precisely one such case where the socio-economic and political implications of a particular outcome necessarily transcend the legal analysis of the issues. The court then says: But it is important that such public discussions should not be allowed to confuse the proper remit of the adjudicative function of the court in the case itself. In the performance of his judicial duty, a judge should always focus on, and only focus on, the legal merits of the issues which he or she has to determine. As a Filipino law professor, I urge local judges to read the decision both for the nuance of its language and its careful reasoning. The decision of the Hong Kong Court of First Instance will obviously not be the end of the story. The case will be appealed possibly all the way to Beijing, where a different interpretive tradition prevails and where the Basic Law, a constitution unto the Hong Kong Special Administrative Region, is but a statute unto the National Peoples Congress. I have read some of the arguments of the Hong Kong critics of the decision, who apparently have launched a signature campaign against the maids and garnered more than 90,000 signatures. One said: We dont think this is discrimination. We have rules, they come to Hong Kong just to make money. But couldnt this be said as well of all the gweilos who come to Hong Kong to enjoy job and business opportunities not available in the home country and then we call one group expatriates and the other, FDH. And, typical of a legal system built on case-law, can the just to make money argument apply to Evangeline, who has invested 22 years of a life embracing a community that wouldnt consider her its own?

SCmustdecideonformerFGsWLOpetition 9:15 pm | Thursday, September 29th, 2011 0shareNew 0 While the Department of Justice has lifted the watch list order (WLO) against former First Gentleman Jose Miguel Arroyo, the Supreme Court cannot just dismiss the latters petition assailing the legality of the order on the simplistic ground that the lifting of the order has made the issue moot and academic.

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The admission by the high court that similar petitions involving the same legal questions are pending before the Court has made it more imperative for the Supreme Court to resolve the issue. All the Court has to do is consolidate Arroyos petition with the similar petitions and resolve all together the identical issues involved in these petitions. While there is that rule that courts may decline jurisdiction over moot cases, such rule is not absolute as decided by the Supreme Court itself in many, many cases. In the very recent case of Villando v. the House of Representatives Electoral Tribunal (Aug. 23, 2011), the high tribunal decided the case (though it was already moot) on the ground that the issue raised therein is capable of repetition, yet evading review. The question involving the legality of the power of the justice secretary to issue a WLO and the subsequent order issued against Arroyo is likely to recur or to happen again, as the same could be issued again against him, hence, capable of repetition. There is that useful purpose of resolving the issue in the Arroyo petition for future guidance of lawyers and the courts, and to avoid the so-called root or branch that may bear the seeds of future litigations. ROMULO B. MACALINTAL, SCmustdecideonformerFGsWLOpetition 9:15 pm | Thursday, September 29th, 2011 0shareNew 0 While the Department of Justice has lifted the watch list order (WLO) against former First Gentleman Jose Miguel Arroyo, the Supreme Court cannot just dismiss the latters petition assailing the legality of the order on the simplistic ground that the lifting of the order has made the issue moot and academic. The admission by the high court that similar petitions involving the same legal questions are pending before the Court has made it more imperative for the Supreme Court to resolve the issue. All the Court has to do is consolidate Arroyos petition with the similar petitions and resolve all together the identical issues involved in these petitions. While there is that rule that courts may decline jurisdiction over moot cases, such rule is not absolute as decided by the Supreme Court itself in many, many cases. In the very recent case of Villando v. the House of Representatives Electoral Tribunal (Aug. 23, 2011), the high tribunal decided the case (though it was already moot) on the ground that the issue raised therein is capable of repetition, yet evading review. The question involving the legality of the power of the justice secretary to issue a WLO and the subsequent order issued against Arroyo is likely to recur or to happen again, as the same could be issued again against him, hence, capable of repetition. There is that useful purpose of resolving the issue in the Arroyo petition for future guidance of lawyers and the courts, and to avoid the so-called root or branch that may bear the seeds of future litigations. ROMULO B. MACALINTAL,

Whoenjoysdiscretiontorealignthebudget? By: Raul Philippine Daily Inquirer 9:18 pm | Thursday, September 29th, 2011 3share44 40 The word war between the Supreme Court and Malacaang over the Courts budget is, at its core, a fight on the discretion to realign the millions left unspent each year by the constitutional agencies. The rhetoric of fiscal autonomy carries the heavy weight artillery of judicial independence and the separation of powers, but it increasingly sounds hollow. In the words of a UP Law Center opinion, the Executives proposal will curtail the practice of not filling up vacant positions in order that they may be converted into savings that can be used as discretionary funds especially, I must add, staff bonuses. The UP Law Centers Institute of Government and Law Reform (IGLR), through its director, Florin T. Hilbay, has issued a legal opinion upon the request of Sen. Edgardo J. Angara on the constitutionality of the Executives proposal to budgetary impoundment. Professor Hilbay opines: Its at best equivocal. The constitutional text can go either way. That is why it is, to say the least, rather awkward for the Supreme Court to remind us however subtly that it will have the last say. That may close the debate at the level of legal doctrine but not at the level of constitutional norms. The Court should be the last agency to reduce this to a question of turf, and the first to see it as one of transparency and public accountability. Apparently, some P2 billion of the budget for constitutional bodies is for personnel positions that are left unfilled. The current practice is that those funds, once released to the agency and if left unspent, become a virtual piggy bank to be spent at the discretion of the agency head. The Executive now proposes that the amount be placed in a separate fund to be held in trust for the agency and to be released only upon proof that the position has been filled. The Court understandably invokes the Constitution: The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary after approval [by Congress], shall be automatically and regularly released. The IGLR however says that there is nothing in the Constitution that expressly prohibits the Executives proposal. Since the amount is kept in trust, the original designation for unfilled vacancies of the Judiciary is preserved; it does not amount to an infringement of Congress power to appropriate. Neither does conditioning the release of the funds upon proof of the vacancy being filled [violate the rule of] automatic, regular release. Discretion as to C. Pangalangan

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whether or not the amounts are released (i.e., filling up a particular vacancy) is still lodged with the Judiciary [though the actual appointment is made by the PresidentRCP], and the requirement of presenting proof is a de minimis procedural requirement, amounting to a notice requirement that imposes no burden on the Judiciarys fiscal autonomy. The Executive thus wields no real discretion which it can hold, as it were, like a Damocles sword over the Courts neck. Indeed, it removes the perverse incentive for agencies to create more personnel items than it needs and to slow down its hiring so that those budget items remain unused and available for realignment. On the other hand, the IGLR recognizes that the proposal may impinge upon judicial independence in two ways. One, pooling together the Judiciarys funds with those of other independent constitutional agencies may render the guaranteed minimum amount illusory. The danger is that the other agencies may outstrip the Judiciary in filling up the vacant posts unless the Executive ensures that the agencies keep to the congressional allotments, or better still by avoiding the commingling of funds. Two, the budget department can, in prescribing the guidelines, aggrandize its power and unduly fringe automatic release. The power of constitutional agencies to re-align their savingsthat is to say, their discretion to spend their savings as they pleaseis based on the Constitution itself. No law shall be passed authorizing any transfer of appropriations; however (the constitutional bodies) may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. But note the qualifier: by law. Over the years, this discretion has been extravagantly construed. Pardon the budgetary legalese but this is one sample: The unexpended year-end balances of the approved appropriations already released to the [constitutional agencies] shall remain valid appropriation. . The savings in released allotment shall be treated as Continuing Appropriations. That means that Congress has allocated the money, the Executive has released it, and the agency may now spend it differently from the original congressional allocation. That is why the move by the budget department is completely understandable. If the piggy bank arises once the funds are released by the Executive, then the Executive should release the funds only when theyre ready to be used. That way the congressional allocation is respected, the release by the Executive is still automatic (upon proof of the filled vacancy) and entails no executive discretion, and yet the constitutional agencys discretion to realign is minimized. Shorn of the constitutional rhetoric, this is a fight over the power to realign budgets, and the power of agency heads to convert the unused salaries for potential staff members, into bonuses for current staff members. Government staff are underpaid, and for sure these perks help their families survive. Realignment is an ad hoc, non-transparent and thus often inequitable coping mechanism, and it is time we confronted it as the aberration rather than the rule.

Supreme Court orders airlines to give Customs personnel higher overtime pay By Edu Punay (The Philippine Star) Updated September 29, 2011 12:00 AM Comments (4)

MANILA, Philippines - The Supreme Court (SC) has allowed the increase of overtime pay and other allowances of Bureau of Customs (BOC) personnel assigned at the Ninoy Aquino International Airport(NAIA). In a 28-page ruling released last week, the SCs second division declared Customs Administrative Order (CAO) No. 1 in 2005 as constitutional. The order required airline companies belonging to the Board of Airlines (BAR) to increase the pay of Customs personnel in the airports. The CAO had doubled the overtime pay and travel, board and lodging expenses and/or meal allowance of BOC personnel at the NAIA from their original pay since 1992. Covered by the order are members of BAR: Asiana Airlines, Cathay Pacific, Cebu Pacific, China Airlines, China Southern Airlines, Continental Micronesia Airlines, Emirates, Etihad Airways, Eva Air Airways, Federal Express Corp., Gulf Air, Japan Airlines, Air France, KLM Royal Dutch Airlines, Korean Air, Kuwait Airways, Lufthansa German Airlines, Malaysia Airlines, Northwest Airlines, Philippine Airlines, Qantas Airlines, Qatar Airlines, Royal Brunei Airlines, Singapore Airlines, Swiss InternationalAirlines, Saudi Arabian Airlines and Thai International Airways. The SC ruling reversed an earlier decision issued by the Court of Appeals in October last year, which declared the Customs order unconstitutional. The new Customs order, which amended CAO No. 7 in 1992, was promulgated pursuant to Section 3506 of the Tariff and Customs Code of the Philippines (TCCP) that the appellate court also declared as unenforceable against the BAR members.

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Section 3506 states that Customs officials may be assigned by a collector to do overtime work at rates fixed by the Commissioner of Customs when the service rendered is to be paid for by importers, shippers, or other persons served. Contrary to the findings of the CA, the SC held that this rule covers airline companies, aircraft owners and operators. The SC stressed the compensation of BOC personnel from airlines does not violate Section 8, Article IX (B) of the Constitution, which provides that an appointive public officer or employee is prohibited from receiving additional, double or indirect compensation, unless specifically authorized by law. The overtime pay, travel and meal allowances are payment for additional work rendered after regular office hours and do not constitute double compensation prohibited under Section 8, Article IX (B) of the 1987 Constitution as they are in fact authorized by law or Section 3506 of the TCCP, the SC explained. The SC noted the term other persons served refers to all other persons served by the BOC employees. Airline companies, aircraft owners, and operators are among other persons served by the BOC employees. As pointed out by the OSG (Office of the Solicitor General), the processing of embarking and disembarking from aircrafts of passengers, as well as their baggage and cargoes, forms part of the BOC functions. The SC said Customs employees who serve beyond the regular office hours are entitled to overtime pay for the services they render. The BAR, according to the SC, also cannot claim that it was denied due process in the imposition of the increase of the overtime rate as they and the Airline Operators Council participated in several meetings conducted prior to the issuance of the Customs administrative order. The BAR has been opposing the implementation of CAO 1-2205, claiming it would aggravate the already high operating cost paid by the airlines which are still reeling from the impact of consecutive negative global events and the unprecedented increase in fuel prices. Under CAO 7-92, the BOC officers and employees at NAIA were to receive P30-38 hourly overtime pay, P50 traveling allowance per way, and P50 allowance per meal. On the other hand, under CAO 1-2005, the hourly overtime pay of BOC officers and employees would range from P66 to P83, P110 flat rate for traveling allowance and P110 allowance per meal.

Whenisfamilyplanninganti-life? By: Fr. Joaquin Philippine Daily Inquirer 3:02 am | Monday, September 26th, 2011 439share3517 3050 I use the phrase family planning because it is a phrase that covers a broad spectrum of ways of limiting the number of children. It can include abstention from sexual congress intended to beget children. It can include what are called natural methods of preventing conception. It can include artificial means of preventing conception. It also includes abortion. All these contribute to the reduction and regulation of the number of children that are brought into this world. In the current debate brought about by the introduction of the Reproductive Health bill, the question of what is anti-life comes up. It is therefore important to be able to clarify what precisely is meant by being anti-life. In the current debate, the term anti-life is often used in the most pejorative way. It is used in the sense of being against existing life. Murder, in other words. But it can also be understood to mean not being willing or not desiring to add more human life to the already crowded population. This would be the stance of a married couple who decide to abstain from the acts that bring about life. To a certain extent this is also the stance of a young man who chooses a celibate life not because he hates children, but out of a conviction that he can accomplish better what he feels he is called to do without the burden of raising children. Definitely I would not categorize such a person as being anti-life. People like him love life so much that they take it upon themselves to contribute in some or other ways to the improvement of the quality of life of those who are already born. We come now to contraception. Is contraception anti-life in the sense of being directed at actual life? The phrase anti-life is an active and not a passive word. The word anti in compound word is an active word aimed at life. Thus we must ask when life begins, because before life begins it is beyond the reach of anti-life action. When does life begin? For me, the starting point in dealing with this very specific question is what the Constitution says. It says that the state shall protect the life of the unborn from conception. What this means, in the understanding of the men and women who wrote that Constitution, is that life begins at conception, that is, upon fertilization. Before fertilization there is no life. This is also the view of the Philippine Medical Society, and this is the view of John Paul II. John Paul II said that life is so important that we should not do anything that will endanger it. We would be taking at least a very serious risk against life if we terminate development after fertilization. G. Bernas S. J.

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What this means is that one who practices abstention is not anti-life. The celibate who gives up procreation for a higher calling is not anti-life. The use of contraceptive devices that only prevent fertilization is not anti-life in the sense of being an act of murder. Abortion, in the sense of expulsion of the fertilized ovum at any time after fertilization is anti-life, and is an act of murder. If life of the unborn is terminated at a stage of viability the crime is infanticide. For that reason the Penal Code and also the proposed RH bill prohibit and penalize abortion and infanticide. I have heard it loosely said that what are being marketed as contraception devices are in fact abortive devices. This is loose talk. If there are such abortive devices being marketed, they should be identified scientifically, not by gossip, and withdrawn from the market. The Food and Drug Administration (FDA) has the responsibility of ensuring that no abortifacient drugs be marketed. I know of one drug which was withdrawn from the market after being proved before the FDA to be abortifacient. This was the subject of a thesis of a student of mine which she defended, as required for graduation from the Ateneo Law School, before a panel of professors. Having said all this I must also put on my hat as a priest of the Catholic Church. I accept the teaching of the Catholic Church which prohibits not only abortion but also artificial contraception. Yet one might say that through this article I am in fact approving artificial contraception. I am not doing such a thing. Aside from being a Catholic priest in good standing, I am also a lawyer and teacher and student of Constitutional Law. What I am doing is to place all this in the context of our constitutionally mandated pluralistic society. Not all citizens of the Philippines are Catholics. Many of them therefore do not consider artificial contraception immoral or anti-life. The teaching of my Church is that I must respect the belief of other religions even if I do not agree with them. That is how Catholics and non-Catholics can live together in harmony. The alternative which, God forbid, is the restoration of the Inquisition.

Artandtherightnottospeak By: Fr. Joaquin Philippine Daily Inquirer 4:50 am | Monday, August 22nd, 2011 29share420 375 Art, or what different people call art, is or can be a form of expression. Like any expression it is protected by the freedom of speech clause of the Constitution. There are only two forms of expression that are not protected by the Constitution: libel and obscenity. Sacrilegious expression which is not libelous nor obscene is protected. Art can be libelous if it projects something that is untrue about another in a manner that does harm to a person or to his reputation by tending to bring the object of the art into ridicule, hatred or contempt by others. Libel is presumed to be malicious and can be the basis of award for damages. Art can also be obscene. But what is obscenity? The basic guidelines for a court trying to determine whether a particular work is obscene are: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value. These are guidelines which Philippine jurisprudence has accepted. But stricter guidelines are also accepted in situations where material is forced on minors who are not looking for it, as for instance in television shows during hours when minors can be presumed to be still watching. Our Court has called it relative obscenity. I understand that a court case, (whether criminal or civil, I do not know), has been filed against the officers of the Cultural Center of the Philippines and against the artist of the exhibit. Those suing will be hard put to prove obscenity or libel on the basis of the accepted standards for these offenses. Whose honor or reputation are being maliciously damaged? What patently offensive sexual conduct is being depicted? The suit might also be for immoral doctrines and exhibitions under Article 201 of the Penal Code. We will all be watching how far such a suit can prosper. Since art, even ugly art, is a form of expression, it can be made punishable only when it presents a clear and present danger of an evil which the state has the right to prevent. I come now to the other aspect of freedom of expression, namely the freedom not to speak. Since the CCP has withdrawn the exhibit, this means that the CCP has decided to discontinue its sponsorship of the exhibit. In other words, the CCP has decided to exercise its right not to speak. But it is not thereby saying that the objects may not be exhibited elsewhere. (By discontinuing the exhibit, however, was there a violation of contract? That is another question.) But, as is well known, the CCP was created through Executive Order 30 for the purpose of promoting and preserving Filipino arts and culture. As its website says, it has sought to truly embody its logo of katotohanan (truth), kagandahan (beauty) and kabutihan (goodness). The question I would ask is whether the CCP, a government agency, may be compelled to show whatever artists feel should be shown. Put differently, is the CCP free to choose what it wants to show without violating freedom of expression? While what is expressly guaranteed by the Constitution is the freedom of speech or expression, the guarantee does not exclude the freedom not to speak. The freedom not to speak is pure common sense such that, perhaps, for this reason there is no constitutional provision specifically guaranteeing it. From where I sit, I see the problem confronting the CCP as analogous to the problem of local governments in deciding whether to allow a monument in a public park. The government has the right to choose what permanent monuments it may sponsor in government parks. Although a public park is a traditional public forum, the display of a permanent monument in a public park is a form of government speech. No one can dictate to government what speech it should make or sponsor. As one decision puts it: Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure. Accordingly, cities take some care in accepting donated monuments. They may not be compelled to accept everything offered. The monuments that are accepted have the effect of conveying a government message, and thus constitute government speech. I look at exhibits in the CCP in an analogous way. The CCP is a government institution missioned to display what it considers to be katotohanan (truth), kagandahan (beauty) and kabutihan (goodness) and not what others consider to be such. Artists whose work the CCP does not accept are free to exhibit their work elsewhere. The issue is not freedom of speech but freedom not to speak. G. Bernas S. J.

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TheroadtotheInternationalCriminalCourt By: Fr. Joaquin Philippine Daily Inquirer 3:02 am | Monday, September 19th, 2011 2share14 10 The statute for the International Criminal Court (ICC) will enter into force in the Philippines on November 1, three months after the Philippine government deposited its instrument of ratification to the Rome Statute of the ICC. We actually are one of the later joiners. The ICC treaty itself was born on July 17, 1998 when 120 states adopted the Rome Statute as the basis for establishing a permanent ICC. It was a historic milestone. The Rome Statute entered into force after 60 countries ratified it on July 1, 2002. The Philippines is the 117th to ratify it. The road to the formation of the Rome Statute had a much earlier start. As early as the 1950s it was already being considered in the United Nations. It was, however, not until 1989, after the Cold War had ended, that attention was again drawn to it. The discussion came about when Trinidad and Tobago suggested that the International Law Commission establish an ICC to deal with drug trafficking. What came out as a result was a draft that would cover more than just drug trafficking and which would evolve into what was debated on in the Rome Conference of June-July 1998 to eventually become the Statute of the International Criminal Court. Its birth was spurred in part by the creation of the earlier International Criminal Tribunal for Rwanda and the International Criminal Tribunal for Yugoslavia. The jurisdiction of the ICC, however, does not cover all kinds of criminal offenses. It covers only the most serious crimes of concern to the international community as a whole. According to Article 5(1) these are genocide, crimes against humanity, war crimes and the crime of aggression. The Rome Statute describes these crimes in detail and a supplementary text provides the elements of each of the crimes. Now that the Philippines has become party to the Rome Statute, what are the chances of the Philippines being able to bring cases to the ICC? The preconditions for the exercise of ICC jurisdiction will make such occasions very rare indeed, if at all. The preconditions are that the alleged crime was committed on the territory of a state party to the Statute, that the State of the person accused of the crime is a party to the Statute, and finally that the crime is not being investigated or prosecuted by national authorities or that national authorities are unwilling or incapable of genuinely carrying out the investigation or prosecution. In other words, the jurisdiction of the ICC is complementary. It is not intended to replace national courts. This flows from a recognition of national sovereignty. The aim of those who drafted the Statute was to create an independent, fair, impartial and effective court. Postscript.This postscript has nothing to do with the ICC. In fact it is very parochial in scope. It is about an ordinance or proposed ordinance from the same barangay that came out with a very controversial ordinance about contraception. This time it is about purifying the barangay population. The ordinance is titled Ordinance enforcing the proper use and control of residential houses and lots within Barangay Ayala Alabang, including maintaining records of residents and monitoring transient or temporary residents and providing penalties for the violation thereof. Section 1 states the heart of the ordinance: It shall be the duty and responsibility of all lot owners, homeowners and tenants to ensure that the residential houses they own and occupy be limited strictly for the use of one (1) single family unit up to the fourth civil degree by consanguinity, and their house helpers, i.e., servants, caregivers, gardeners and drivers. There is also a provision on the uses of empty lots within the barangay. A Whereas clause seems to indicate that the ordinance was partly inspired by reports of the presence of foreign students under circumstances that do not come under the list of legitimate occupants as found in the Ordinances Section 1. My impression, however, is that the terms of Section 1 will effectively exclude all foreigners, except those foreigners who have owned lots in the barangay prior to the 1935 Constitution. I doubt that there are any such owners. Foreigners now cannot acquire private lots. Will this restriction on foreigners imposed by a state entity have an international implication? It will be interesting to watch what will happen to, or under, this ordinanceand whether it will suffer the same fate as the earlier ordinance on contraception. G. Bernas S. J.

Enfranchisingdualsandgreens By: Artemio Philippine Daily Inquirer 10:23 pm | Saturday, September 17th, 2011 0share10 9 Will we be allowed to vote during national elections without having to execute the affidavit that endangers our status in the US? dual citizens (duals), immigrants and green card holders (greens) inquire. Since columns are uploaded in Inquirer.net at past midnight, Philippine time, which is daytime in America, US readers are usually the first to read them and to e-mail questions. This query is frequently asked. Qualifications to vote. The Constitution limits the right of suffrage to those who possess these qualifications: (1) Filipino citizens who are not otherwise disqualified by law, (2) 18 years of age, and (3) residence in thePhilippines for at least one year, and in the town or city where they propose to vote for at least six months. The Charter also mandates Congress to provide a system for absentee voting by qualified Filipinosabroad. The first qualification Filipino citizenship assures that only those who owe allegiance to this country are allowed to select its leaders and determine its destiny. Thus, only Filipinos may vote in Philippine elections; aliens cannot. Similarly, only Americans may vote in US elections; Pinoys cannot. The second qualification age makes sure that only those who have reached the age of majority are allowed to enter into binding contracts and to elect the officials who would govern the country. The third residence is required so the voters would know the needs and problems of our country in general and of the locality where they intend to vote. It also acquaints them with the candidatestheir qualifications, their suitability for the office they aspire to and their platform of government. Absentee voting. For qualified Filipinos abroad, the Constitution as earlier stated andates Congress to enact a system of absentee voting. To fulfill this mandate, the legislature passed Republic Act 9189 the Overseas Absentee Voting Law. Section 5(d) of this law allows Filipino immigrants and V. Panganiban

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permanent residents (the greens) of another country to vote for national candidates (not local ones) provided they execute an affidavit declaring that they would resume actual physical residence in the Philippines not later than three years from their registration as voters. In Macalintal v. Comelec (July 10, 2003, per Justice Ma. Alicia Austria-Martinez), the Supreme Court upheld the validity of this statutory provision, ruling that the mere acquisition of foreign residence does not automatically erase the domicile of origin of Filipinos. In other words, though physically absent, greens never legally abandoned their Philippine residence. Answering the objection that permanent residency in another country is proof of abandonment of Philippine domicile, the Court said that precisely the affidavit is required because by their status (as immigrants and permanent residents) in their host countries, they are presumed to have relinquished their intent to return to (our) country; thus without the affidavit, the presumption of abandonment of Philippine domicile shall remain. Voting sans affidavit. Congress passed another law RA 9225 that allowed the duals (Filipinos who have become naturalized citizens of another country) to retain or reacquire their Philippine citizenship. In Nicolas v. Comelec (Aug. 4, 2006, per Justice Cancio C. Garcia), the high court unanimously held that there is no provision in the dual citizenship law RA 9225 requiring duals to actually establish residence and physically stay in the Philippines first before they can exercise their right to vote. The Court added that by authorizing Congress to devise a system wherein an absentee may vote, (the Constitution implied) that a non-resident may, as an exception to the residency prescription be allowed to vote. Thus, to exercise the right of suffrage, duals need not observe the one-year residency requirement, or sign the affidavit required of greens. Comes now Fil-American lawyer Ted Laguatan. He argues that greens (who remain Filipinos and have not become Americans) should be put on equal footing with the duals. According to him, the residence requirement should no longer apply as a condition for voting and that greens should no longer be required to sign the affidavit. This affidavit, he wrote, has a chilling effect on the greens; it negates the constitutional intent, to quote Nicolas, to enfranchise all overseas Filipinos qualified to vote. I agree with Laguatan. I anchored my concurrence to the Macalintal decision not on the old theory of domicile; rather, I wrote that the Information Age already fulfills the purpose of the residency requirement.Overseas Filipinos, without having to reside here physically, have the means to inform themselves of our countrys needs and of the suitability of candidates for national offices. Interactive news websites, cable TV programs, social networks like Facebook and Twitter, cell phones, Skype, Magic Jack, e-mails, teleconferencing and other electronic wonders no longer require actual physical presence to acquire thorough knowledge of Philippine political life. Since the goal of the residency qualification is accomplished by the globalization of information, then the purpose of the law is fulfilled. Our brothers and sisters abroad should be allowed to vote during national elections without anachronistic roadblocks. After all, being the single biggest source of foreign exchange, they keep our economy afloat. ***

SubstateorreformedARMM:newhopefortheMoro By: Dr. Philippine Daily Inquirer 5:09 am | Tuesday, August 30th, 2011 1share6 5 The Aquino-Murad meeting in Tokyo, followed by the exploratory talks in Kuala Lumpur, has intensified the rhetoric on the sub-state issue. The Moro Islamic Liberation Front (MILF) said it will not be distracted from its concern for the substantive issues nor yield to legal gambits, and should it fail to seek a negotiated political settlement, it will revert to its original stance to secede. The MILF has incorporated the substance of the Memorandum of Agreement on Ancestral Domain (MOA-AD) into its proposed comprehensive compact, but minus the portions found in conflict with the Constitution. The Supreme Court, the MILF contends, did not declare the MOA-AD unconstitutional in its entirety. In the MILFs vision of substate, the Autonomous Region in Muslim Mindanao (ARMM) remains the core territory but would comprise other Moro ancestral domains. It would be governed by a chief minister elected by an assembly as in Scotland and Northern Ireland. It would have asymmetrical relations with the national government similar to Hong Kongs relations with China. The substate would exercise all governmental powers and functions, except those of national defense, foreign affairs, postal services and coinage, which would remain vested in the national government. The MILF has recommended a provision to this effect which would only be appended, attached to the Constitution. We are faced with a compromise formula: Moro independence as outside the parameters of the negotiations while accommodating the substate proposal into the framework of the Philippine Constitution. Would the MILFs recommendations fit within the framework of the Philippine Constitution? Most constitutional luminaries and political class elites have been trapped in the unitary state system that makes least possible a compromise in the current peace talks. As a prelude, the proposed substate requires a process, an amendment to and ratification of the Constitution to liquidate the Organic Act and abolish the ARMM. This should erase fears that the proposed substate could develop into a totally separate Moro polity, thus raising a problematic situation. How else can the envisioned substate framework be laid on the negotiating table? By any stretch of the imagination, the ARMM is itself a substate and any expansion of its territorial integrity would require a plebiscite as a constitutional command. A full substate, if it has to come, would be a test of maturity in constitutional reforms. The Moro Question must be framed on a workable arrangement structured on the principle of the right to self-determination, as well as on social historical justice in order to achieve a successful political settlement. It would be needless to attempt here a historical analysis of the status of the Darwin T. Rasul III

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Muslims in the Philippines, but suffice it to say that the Moro peoples identity as a distinct nation antedated by centuries the Filipino nation which developed only after the 1896 Philippine revolution. Since the colonial periods, the Moro people have suffered national, class and religious oppression. A critique of neoliberal ideology that apologizes for the continued wars in the Moro homeland deserves a place in contemporary debates on the Moro quest for self-determination. The right to self-determination (RSD) has evolved as a reaction against hundreds of years of European colonialism and found its early expression in secessionist ideals in modern history. In Philippine experience, the protection of customs, beliefs and interests of the Moro population has engaged the framers of our 1987 Constitution to be alive to the mosaic pattern of Philippine cultural pluralism, and a fiat was established for the creation of what is now the (ARMM). But why has the ARMM failed? The ARMM that emerged suffered from many constraints. The territory is not contiguous. Weak and susceptible, its apparatuses are held hostage by Moro clans dominance and constant armed contest for economic and political power. With the inadequate powers vested in it, the ARMM failed to evolve its own institutional capacity, which made it ever dependent on heavy subsidies from the national government for its operation. And much of these subsidies were miserably lost to massive corruption. The ARMM therefore failed to evolve into a full sub-state as it hardly accomplished even the most basic expectations of autonomous governance. The challenge to the Aquino presidency is to show a seriousness of purpose. Already, President Aquino has demonstrated his readiness to reform the ARMM. He has ordered a transition which will set in motion the process of reforms initiated with the new law (Republic Act 10153) as relevant to the setting up of a political infrastructure in order to make the autonomous region truly autonomous than ever before. Whether it is a substate or a reformed ARMM, a new hope for the Moro springs eternal once more. Dr. Darwin T. Rasul III is author of the book Peace Initiatives, co-convenor of Reform ARMM Now (RAN) coalition and chair of the Minority Rights Forum Philippines.

Thesubstatedream By: Fr. Philippine Daily Inquirer 4:47 am | Monday, August 29th, 2011 0shareNew 0 Once again the nation takes up what is commonly referred to as the Mindanao Problem. The government is approaching it with benefit of hindsight. Almost three years ago the Supreme Court, in what I consider an advisory opinion, came out with counsel on what to avoid in any peace agreement about Mindanao. Although the vote against the agreement was 8-7, it actually contained more agreement than what the vote indicated. Aside from the 90-page main opinion, there were 11 other pieces, some concurring and others dissenting. Going through them one will find that there really was more unanimity than what the 8-7 count might indicate. A clear majority agreed that there were provisions in the MOA-AD which, if carried out without constitutional amendment, would depart from the present Constitution. The most notable of these were the powers envisioned for the Bangsamoro Juridical Entity (BJE). The powers envisioned went beyond those possessed by local governments and even by the Autonomous Region in Muslim Mindanao. The MOA-AD spoke of the relationship between the BJE and the Philippine government as associative, thus implying an international relationship and therefore suggesting an autonomous state. Clearly these went beyond what the present Constitution has set up. Like other peace negotiators, the MOA-AD authors were willing to try untested approaches and to operate out of the box. Thus it was that eight justices of the Court felt impelled to send a stern directive to an Executive Department which they could not trust. The Court, however, did not say that the president should not think out of the box. After all, the presidents oath binds the president not just to preserve and defend the Constitution but also to do justice to every man. What President Aquino did when he met with Murad Ebrahim in Tokyo was to start a new process of doing justice to every man and, if necessary, to think out of the box. It is now becoming clear, however, that what is envisioned by Chairman Murad and the MILF is something which will not fit into the structure of the present Constitution. It will need constitutional amendment. What will the Palace agree to since constitutional amendment is not one of its priorities? I am convinced, however, that the priorities of the President are not cast in bronze. From what I have seen of the efforts to achieve permanent peace in the region, I have become convinced that lasting peace cannot be achieved without some significant changes in the structure of government in Mindanao. Put simply, there is need for some constitutional change. Can this be achieved without a complete overhaul of the current Constitution? Theoretically this can be achieved. But the fear is very real that the initiation of any form of amendment will open up the floodgates for a total overhaul of the Constitution. But if the powers that be will support it, a surgical form of amendment can be achieved. This is possible because of the way the current provision on constitutional change is worded. The Constitution now says: Any amendment to, or revision of, this Constitution may be proposed by: (1) the Congress, upon a vote of three-fourths of all its Members; or (2) a constitutional convention. Under these terms, neither a constitutional convention nor a joint session is needed. The two Houses have the option either of coming together in joint session or of deliberating separately as they are where they are, as they do with ordinary legislation. Whether to act as two separate bodies or as one body that votes separately is for Congress to decide. It is a political question beyond the jurisdiction of Joaquin G. Bernas S. J.

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courts. Thus either House can initiate a constitutional amendment bill or a constitutional revision bill, debate on it, and approve it by a vote of threefourths of all the members and thereafter pass it on to the other House for similar deliberation and action. If approved by both Houses, it can go to a plebiscite for ratification or rejection by the electorate. Under such an arrangement, the proposed change can be as broad or as narrow as the legislators might want. The fact that no one has tried this method for the purpose of radically overhauling the Constitution is perhaps an indication that neither the Senate nor the House of Representatives is prepared to overhaul the Constitution. Neither, however, has the surgical method been tested. In my view, the search for a solution of the Mindanao problem can be approached through this surgical method. More specifically, the goal can be either a reformulation of what can be given to the Autonomous Region or the formation of a federated state for Mindanao. I believe that a limited constitutional change can be proposed by Congress under the present constitutional provision. Under this separate arrangement, the needed changes for Mindanao can be initiated either in the House of Representatives or in the Senate. Once a proposal is approved in one House by a vote of three-fourths of all its members, it can be sent to the other House for its consideration and disposition. If one House refuses to cooperate, that will be the end of the proposal. Or, if the version approved by one House is different from that of the other, then, as in ordinary legislation, a bicameral committee can be formed to resolve differences. Once a common provision is achieved, it can go back to both Houses for ratification by a vote of three-fourths of all the members. If all goes well, then the provision will be ready for submission to a plebiscite.

Thecrucibleoffreespeech By: Florin Philippine Daily Inquirer 2:14 am | Monday, August 15th, 2011 3share72 69 The test of a societys commitment to freedom of expression lies in its defense of marginalized forms of speech. I say in class, free speech is for speech that you hate, not for speech that you like. The logic of the principle is simple: we dont need to protect societys treasured ideas and institutionsthey pose no danger to us; we pose no danger to them. It is for those forms of expression that disturb, offend, and even anger us that we actually need freedom of expression, as these types of speech are those in danger of being suppressed if society were not serious enough about a democratic culture. Freedom of speech applies to political speech as much as to artistic expression. This should be emphatically true in the case of the Philippines, because of Lino Brockas contribution to our present Constitution. During the deliberations in the Constitution Commission, the famed director apparently insisted on including the phrase of expression to the standard free speech clause to make it read: no law shall be passed abridging the freedom of speech, of expression, or of the press. The events of the past few days related to Mideo Cruzs work exhibited by the CCP make me wonder about the strength of our societys commitment to this basic freedom. Here are the facts. Cruz is a recognized, multi-awarded artist who has shown his work here and abroad. His Poleteismo was previously shown in UP and Ateneo, with much less fanfare. The CCP decided to exhibit his work, along with others, to commemorate Rizals 150th birthdate. Now his work has been taken down, his alma mater has disowned him, his credentials as an artist has been questioned and his person, vilified. The members of the CCP board, on the other hand, are being asked to resign, facing a criminal lawsuit by religious fanatics for purveying immoral doctrines, and about to be investigated by Congress. Curiously, President Aquino, Imelda Marcos, Juan Ponce Enrile and Jinggoy Estrada now belong to the same category of eminent moral guardians who disagree with the CCP. It is exactly for this kind of situation that we need to defend freedom of expression and thus protect Cruz and the CCP. First. It is a unique characteristic of art that it is at once self-defining and intractably subjective. What is art for one may be trash, vile, pornographic or crass to another. One of the traditional functions of art is to unsettle, disturb and even offend. If we had to subject the whole spectrum of artistic expression to the scrutiny of those who feel themselves qualified to be the supreme arbiters of morality, taste or propriety, I suspect many important works will soon find their way into the chopping block and their authors provided free lodgings in prison cells. Second. The CCPs decision to exhibit Cruzs work is an exercise of discretion. We can criticize the exercise of that power, but we should recognize the CCPs authority to wield it. That we should not subject that discretion to a religious veto is easy enough to understand when we realize that this country is a secular regime, at least according to our Constitution. Does the CCP have the discretion to exhibit religious art? Yes. Does the CCP have the discretion to exhibit irreligious art? Yes. This is really not that complicated. Third. Cruz work may be offensive to some or even many, if not most, but the CCP certainly did not go out of its way to offend the public. So far as I know, this was a display no different from a regular exhibit and the CCP did not spend additional funds to publicize the event. In other words, it was not as if the CCP exerted extra effort to offend the feelings of subscribers to the Catholic faithit simply hosted an event open to the public. The controversy erupted when very conservative Catholics brought their disagreement to the CCP and made a national issue out of it. Fourth. The CCPs exhibit of Cruzs work was, by the nature of the work and place of its display, passive. Poleteismo was not a mobile middle finger flashed before unsuspecting Catholics. The exhibit was not advertised by the CCP on television, and so did not surprise any unwary viewer. Any person who wished to see the work had to make the effort to go to the CCP and visit the gallery where it was displayed. No one was compelled to look at the exhibit; and after the controversy broke, everyone going to the CCP already had notice of the potentially offensive character of Cruz work. Given these facts, I dont see how the CCP violated its duty to promote the arts. If at all, it should be congratulated for making a form of expression traditionally invisible to the public a subject of national conversation. Indeed, it is almost unimaginable for the Filipino public to select art as an item of conversation among the sizable buffet of subjects we talk, blog, tweet, and fb about. The amount of public meaning generated by Cruzs work and the added value to the social activity of Philippine society by the controversy over his art makes it even more compelling for us to protect his expressive activity and defend the CCP. T. Hilbay

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Most of us do not realize that free speech is an equal opportunity offender. The capacity of ideas to ennoble and appall, uplift and debase, inspire and outrage should not threaten us but make us respect even more the value of protecting the marketplace of ideas. Commitment to freedom, after all, is just self-interest when youre promoting it for your own ends. It only becomes a principle when we fight for it to protect someone else. Florin T. Hilbay teaches Constitutional Law and Legal Theory at the UP College of Law. He is the director of the Institute of Government and Law Reform of the UP Law Center.

MakingsenseoftheUSmess By: Artemio Philippine Daily Inquirer 10:32 pm | Saturday, August 13th, 2011 1share32 29 When the US sneezes, the world catches a cold, so goes a popular adage. And it was never truer than during the past few days when the financial markets in the world, including the Philippines, gyrated wildly after the credit rating of the United States was downgraded by Standard & Poors (S&P). Economists may understand the ins and outs of the turmoil but non-eggheads like me need to make sense of it in less technical language, in terms of how it originated, how it can be solved, and how we, in the Philippines, can cope with it. How it started. In 2001, the United States registered a budget surplus, because it spent less than it earned (mostly from taxes). However, during the last 10 years, the US reverted to deficit spending. By 2011, its debt rose rapidly to an incredible $14.3 trillion, mainly because it reduced taxes, funded two wars in Iraq and Afghanistan, and sharply increased public spending to mitigate the 2008 financial meltdown. It financed its deficit mainly through borrowings. It is like a family that spent more than it earned, and financed its purchases of foodstuff, medical care, housing and travel through credit cards, installment sales and bank loans. Some two weeks ago, the US was in jeopardy of default (inability to make timely payment of its maturing principal and interest) because it reached the statutory borrowing limit. The US Congress needed to pass a new law that would enable the government to resume borrowing, an exercise that was done routinely in the past. This time, however, Congress was divided. The Republican Party that controlled the House of Representatives wanted the government to decrease its expenditures as a condition to increasing the debtlimit. This would mean cutting Medicare, social security and retirement benefits, which the Democratic Party led by President Barack Obama opposed. Instead of cutting expenses, Obama wanted to increase taxes. There was a clash of economic philosophy on how to solve the debt crisis: to cut spending or to raise revenues via new taxes. Solution to the turmoil. After several marathon meetings, Congress decided to raise the debt limit and to reduce expenses by about $1 trillion over the next 10 years. It also created a super committee composed of six senators and six congressmen to seek new ways, by Nov. 30, 2011, of further cutting expenses by another $1.5 trillion. S&P was not impressed by the solution. It believed that the spending cut was insufficient to stabilize the debttrajectory and that the political gridlock in Congress weakened the effectiveness, stability and predictability of American policymaking. So, it downgraded the credit rating of US debt instruments one notch lower, from the highest rating of AAA to AA+. This means that the US may have to pay a higher interest rate for its borrowings, thereby bloating its debt even more. By itself, this downgrade was not the major cause of the turmoil. However, it was the last straw that broke the confidence of creditors in the political will of the US to solve the financial mess. Other than the downgrade, there was the long nagging fear of the much more debilitating debt incurred by European countries like Portugal, Ireland, Italy, Greece and Spain (PIIGS). While these countries collective debt was less in absolute amount than the $14.3 trillion US deficit, they had far less ability to pay their debt, given the fundamental structural weaknesses in their economies. At a time of instability and turmoil, investors sell their stocks in the belief that the economic downturn in the US and Europe will jeopardize their capital. Investors tend to deposit their cash in the banks, or exchange them with more stable currencies like the Swiss franc, or buy fixed rated bonds, or invest in gold bullions. To ordinary lay people, the remedy is really simple. When a family overspends, the solution is to tighten belts, spend less and earn more. But to governments, it is not that simple because belt tightening reduces consumption, constricts the circulation of money, dampens business activities and causes job losses. In fact, governments tend to do the opposite: to borrow more and spend more to generate economic activities and create jobs. The better solution is for the US Congress to unwind its political gridlock, find new ways to reduce spending and raise revenues, and enact policies to restore business confidence. How PH can cope. Meantime, an economic pygmy like the Philippines will have to anticipate and adjust to the consequences of the crisis. One major effect would be the lowering of the price of oil because an economic downturn lessens the demand for gas and leads to the reduction of pump prices of petroleum products. But it could also mean reduced remittances from OFWs in America and Europe. Some nine million ethnic Filipinos live and work in the US. Because of the turmoil, many will lose their jobs and will thus not be able to remit as much funds to their relatives here. And because the US dollar is weakening, there will be less pesos for the same dollars remitted by Filipino-Americans. To create new jobs and stimulate business here, the Philippine government, according to Finance Secretary Cesar Purisima, will soon award infrastructure projects to private investors and fastrack growth sectors like business process outsourcing. In sum, I think our economy is resilient enough to withstand the US and European turbulence and, with proper anticipation and planning, can come out relatively unscathed. V. Panganiban

Boldbidforpeace Philippine Daily Inquirer 9:21 pm | Friday, August 12th, 2011

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0share6 6 Was it improper for President Aquino to have flown all the way to Tokyo to meet secretly with Murad Ebrahim, the leader of the secessionist Moro Islamic Liberation Front? Perhaps. The reactions from certain quarters have the ring of predictable Monday-morning quarterbacking. Sen. Francis Escudero called the meeting ill-advised as Murad is not even [Mr. Aquinos] counterpart. House Minority Leader Edcel Lagman deplored the meeting for posing an unnecessary risk on the Presidents person, and one that violates his avowed policy of transparency. An unnamed diplomat was more blunt, saying that what Mr. Aquino did was an act of treason. If the President can take any comfort in this, it is that bold steps toward peace-making have often met the same levels of doubt, cynicism and vituperation. To cite a historic example: Anwar Sadat was never forgiven by some of his countrymen for forging a peace treaty with Israel. The Egyptian president was assassinated by fundamentalist Arabs for his efforts, but the peace he managed to forge between Egypt and Israel has held fast all these yearsthe only such agreement between the Jewish state and its hostile Arab neighbors. We are not suggesting that President Aquino is risking the same fate as Sadats. We are only pointing out that any genuine move towards peace between two intractable enemies always engenders suspicion and denunciation, as both sides maneuver from a place of self-interest to try to shave off maximum concessions from any final compromise. As it is, the government and MILF peace panels have yet to come up with anything approaching a substantive draft agreement, and already too much is being read into the Presidents proactive gesture of personally assuring the leader of the largest Muslim rebel group that here now is a new government they can begin to trust and work with. Because if there is anything the stalled Mindanao peace process needs, its a fresh burst of resolute imagination, plain honesty and good faith from both sides after the poisonous atmosphere that beclouded the talks the last time Malacaang and the MILF sat together to work out a framework for peace. The Memorandum of Agreement on Ancestral Domain (MOA-AD), reached between the government of then President Gloria Macapagal-Arroyo and the MILF, envisioned a much-expanded Bangsamoro homeland that was to have its own basic law, police and internal security force, system of banking and finance, civil service, education, legislative and electoral institutions, as well as full authority to develop and dispose of minerals and other natural resources within its realm. For all intents and purposes, it called for a new and separate countrya prospect that would have led to the dismemberment of the republic. Worse, Arroyo had agreed to these terms completely in secret, startling the public with a virtually finished document that, were it not for the national outrage that ensued, would have been signed into law by both parties. The Supreme Court eventually declared the agreement unconstitutional, but the botched process not only capsized, yet again, prospects for peace in Mindanao, it also claimed a heavy price: some 750,000 people displaced and nearly 400 dead, as rogue elements of the MILF rampaged to protest the MOA-ADs scuttling. Mr. Aquinos gesture of meeting personally with the MILF chair should go a long way towards disinfecting the air and rebooting relations between the two sides. However, the government peace panels first task is to hold the MILF to its recently announced modified position, that it is no longer asking for an independent state, but only a substate in Mindanao. The powers over national defense, foreign relations, coinage and currency and postal services will still be with the central government, the MILF said. The substate is still part of the Philippines. It has no army, except police and internal security forces, tasked to do policing within. Other daunting details need to be fleshed outlike how to accommodate the Autonomous Region in Muslim Mindanao into the proposed substate, for instancebut if the MILF can show it is sincere in living up to its new stipulations, and can rein in its armed breakaway groups to assure that any treaty has reasonable chances of being enforced, then Mr. Aquinos daring bid for peace during his watch might yet prove prescient. Let him not forget, though: before any signature is put on paper, the Filipino people must know, understand and agree to it. No secret deals this time.

Freedomforthethoughtwehate By: Raul Philippine Daily Inquirer 9:33 pm | Thursday, August 11th, 2011 15share189 172 Mideo Cruz may have blasphemed but precisely for that reason we can only boycott but not censor him. His work Politeismo has been vandalized and now suppressed together with the rest of the artwork in the Cultural Center of the Philippines exhibit named Kul. The ensuing outrage has exposed grave misconceptions about why we offer communal protection for expressive freedoms. The first fallacy is the view that if many people find it offensive, then it can be censored. Susmaryopsep. Thats precisely why we have the Bill of Rights! It protects, in the words of Oliver Wendell Holmes, not free thought for those who agree with us but freedom for the thought that we hate. Robert Jackson (who was also the US chief prosecutor at the Nuremberg trials) also said: [T]he freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. The fallacy puts democracy above liberty, and leaves marginalized minorities at the mercy of the frenzied mob. It forgets that human rights are essentially counter-majoritarian. Again citing Jackson: The very purpose of a Bill of Rights [is] to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities [T]hey depend on the outcome of no elections. The second fallacy is that it would have been okay if the offending art was displayed in a private gallery, but not at the CCP, on public property and by a public agency, a state instrumentality [which] makes [the government] complicit to an attack on religion. On the contrary, my dear Watson. A private gallery is completely free to judge art according to its aesthetic biases. But a publicly-funded gallery is bound by a document called the Philippine Constitution, which requires it to respect freedom of speech [and] of expression (Article III, Sec. 4) and foster a Filipino national culture in a climate of free artistic and intellectual expression (Article XIV, Sec. 14). By shutting down Kul, the government is reduced to being the henchman of the neighborhood thug. C. Pangalangan

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The third fallacy is that the CCP merely succumbed to pressure by permanently closing the exhibit. Not so fast, amigo. Read the fine print of the CCPs statement. One part rightly speaks of public pressure: it was due to numerous e-mails, text messages and other letters sent to the CCP and the artists. But another part speaks of what we call the hecklers veto: due to hate mail and an increasing number of threats to persons and property, the [CCP has] decided to close down Kul. There is a world of a difference here. In the first rationale, the censor is the CCP itself. But in the second, the censor is the bully who forces the hand of the CCP to lower the boom not on content-based (i.e., the irreligiosity) but on content-neutral grounds (i.e., the risk of violence). The fourth fallacy is that Politeismo deserves less protection because it is lesser art, a mere collage, in contrast to, say, a real painting. What is art, after all? If you have to ask, Rambo, youll never know. The CCPs curator selected only well-known artists, and this exhibit has been previously housed at two universities, the Ateneo de Manila and the University of the Philippines. The most potent argument against the CCP is that Politeismo is hate speech; it is injury-specific. Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. But Philippine jurisprudence has been uneven. Look at the Philippine case involving an outright insult against Islam (a tabloid stupidly saying that Muslims consider pigs sacred animals). The Supreme Court threw out the case because the hurtful speech maligned a large class of people, a group too vast as to readily ascertain who among [them was] particularly defamed. The Court was lackadaisical when it was a minority that was slurred, and it will be finicky now that the religious majority feels slighted? The fifth is the braggadocio by church lawyers that the Revised Penal Code provides enough basis to punish any person who publicly offend[s] any race or religion. Remember that the law likewise criminalizes defamatory speech, butin order to reconcile it with the Bill of Rightsthe courts have concocted the New York Times v. Sullivan test (adopted by the Philippine Supreme Court) that makes it more difficult to convict when it is a public officer who is defamed. The sixth fallacy is to assume that by defending Politeismo, I am endorsing it or that I really like it. I dont. The political philosopher Michael Sandel says: Liberals often take pride in defending what they oppose . [They] distinguish between permission and praise, between allowing a practice and endorsing it. The seventh fallacy is that the CCP violates religious neutrality by exhibiting irreligious art. So conversely it violates religious neutrality if it exhibits religious art? Let us dream briefly: What if the Vatican lends us Michelangelos Pieta? If we shun the Pieta, we are all diminished. The deed is done: vandalism, aborted arson, threats, and the hecklers veto. In the coming days, I urge the CCP officers to avoid the limp ratiocination that I have heard from them of late, to stand fast by artistic freedom and not resign, and to stare down a benighted public barely aware it is actually the one getting screwed when we let the hecklers win.

Questionsfromaresignation By: Fr. Philippine Daily Inquirer 4:25 am | Monday, August 8th, 2011 6share21 12 We all know now that, for the first time in Philippine history, a senator, Miguel Zubiri, resigned from theSenate. It is now only a matter of time before Koko Pimentel assumes the vacated seat. There are questions about the timing and the motives, but I will not get into those. Nor will I speculate about guilt or innocence. While he himself has admitted that he was a beneficiary of electoral fraud, I am willing to assume that he himself had no part in the cheating. Moreover, I doubt that anybody will bring to court a charge of abandonment of office under Article 238 of the Revised Penal Code. But there are some interesting constitutional questions which may have to be answered in some future time. The simplest of these is the matter of oath-taking. Before whom should Pimentel take his oath? As far as I can tell, neither the Constitution nor the Election Code nor the Administrative Code specifies who should administer the oath. He can take the oath before anybody who is authorized by law to administer oaths. If apresident-elect can choose before whom he can take his oath, there is no reason why a senator-elect should not have the same choice. There are, however, some interesting constitutional questions about reelection. The Constitution says: The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected. The six-year term follows the model of the Senate under the 1935 Constitution. The innovation introduced by the 1987 Constitution is the constraint that no senator shall serve for more than two consecutive terms. This limitation was the second of four possible options. The interruption between terms to allow a third election need not be six years. Since senatorial elections are held every three years, the interruption can be three years. How does the provision apply to Zubiri? Certainly he can run for election in the 2013 elections. Should he win in 2013 and finish the term, can he run in the elections immediately following? It would seem that he cannot because the Constitution says Voluntary renunciation of the office for any length of Joaquin G. Bernas S. J.

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time shall not be considered as an interruption in the continuity of his service for the full term of which he was elected. But should the Senate Electoral Tribunal declare that it was Pimentel who was elected, did Zubiri renounce the office for which he was elected? One might say that Zubiri did not renounce anything in 2011 because he had nothing to renounce and therefore it would be as if he was senator only for one term2013 to 2019. How logical is that? I can only recall an analogous case involving a local mayor. After a mayor had served his third term, his election to that term was declared void. The ex-mayor therefore claimed that he was entitled to another term. The Court held that the decision declaring his third election invalid was of no consequence because he had in fact already served the term. I suggest that a similar logic would apply to Zubiri. It should be remembered that the limitation on terms has been introduced in order to prevent a person from staying too long in power. The purpose, whether one considers it wise or not, should not be frustrated by mere technicalities. Next comes the question for Pimentel. He will soon assume the office vacated by Zubiri. Certainly Pimentel can run again in 2013. Should he win, however, and serve until 2019, can he run again in that election year? Can he argue that he can because he served less than two years of his first term? It is interesting to compare the limitation on terms for the Senate and for elective local government officials. Local elective officials may not run for three consecutive full terms. Thus, if during a local officials third term he is ousted for not having been validly elected, he is deemed not to have served three full terms and thus can run immediately thereafter. For senators, however, as also for representatives, a full term is not specified. Thus, my view is that, unfortunately for Pimentel, although his tenure will be far short of six years, he will be credited for having won a full six-year term. Whereas tenure can be shortened, a term is indivisible, unless the law makes it divisible, as in the case of local elective officials. Finally, I must add that all these questions are coming up while talk of constitutional amendment or of surgical constitutional change is being revived. The questions on reelection arising from Zubiris resignation might get a definitive answer or clarification should constitutional amendment finally take place.

Pressclub saleofmurallegalCourtofAppeals s By Marlon Philippine Daily Inquirer 3:11 am | Monday, August 8th, 2011 1share5 4 The Court of Appeals (CA) has affirmed the legality of the controversial sale of a historic Vicente Manansala mural that officers of the National Press Club (NPC) sold to a private individual four years ago. The appellate court threw out the motion of the Government Service Insurance System (GSIS) seeking to nullify the sale and claiming that the NPC could not sell the wall painting because the government pension fund owned the building and wanted to recover costs. The appellate court, however, partially granted the GSISs appeal to overturn a July 16, 2009, ruling of Pasay City Regional Trial Court Branch 112 directing the GSIS to donate the building in Intramuros, Manila, to the press club. In its July 25 resolution, the Court of Appeals said the lower court did not have jurisdiction over the case and that it committed abuse of discretion when it failed to collect a docket fee from the NPC. Null and void (W)e hold that the instant petition for certiorari under Rule 65 is proper as the court acted without jurisdiction, therefore, its order directing petitioner (GSIS) to donate the subject property to NPC is null and void, the court said. The 20-page ruling was penned by Associate Justice Rodil Zalameda and concurred in by Associate Justices Amelita Tolentino and Normandie Pizzaro. The court said the ruling was handed down without prejudice to the recourse of either party to determine the respective rights and obligations of the parties regarding the disputed land and building. Movable object In upholding the press clubs ownership claim over the contested mural, the appellate court said the NPC was right when it pointed out that the national artists masterpiece was a movable object which was not meant to be part of the buildings wall. The NPC argued that the artworks Freedom of the Press theme evidently showed its ties to the club. By filing a writ of replevin, the appellate court said the GSIS virtually admitted that the mural was indeed the property of the NPC since the government agencys petition sought to recover personal properties and damages. It is without doubt that the mural is a movable propertya personal property which can be taken by NPC, whether or not it owns the building, the court ruling read. Being the owner of the mural, NPC has all the right to dispose of the same in whatever manner it desires, it said, adding: (The) NPC cannot be made liable, in any way, in exercising what is merely a propriety act. Sold for P10M According to former NPC president Neal Cruz, many journalists were taken aback when they learned that the NPC, then headed by Manila Bulletin reporter Roy Mabasa, had sold the signature mural for P10 million to an unnamed art collector through Heritage Galleries. According to Cruz: The GSIS, led by its then chair Winston Garcia, questioned the transaction, claiming the state-owned insurance firm was the legal owner of the mural since it was an immovable part of the building that it owned. Invoking its ownership claims, the NPC said the late dictator Ferdinand Marcos issued a letter of instruction in 1977 directing the GSIS to donate the contested building and the lot on which it sits to the press club. Aside from civil cases, the GSIS also sued several NPC officials for the theft of the artwork, but the Department of Justice dismissed the criminal complaint last year. The sale of the press clubs signature mural divided the press. Ramos

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Mario and Odette Alcantara, owners of Heritage Arts and Antiques had brokered the sale of the Manansala mural to a mystery buyer.

Probingpollfrauds By: Artemio Philippine Daily Inquirer 9:38 pm | Saturday, August 6th, 2011 1share9 7 The Joint Panel, created by Justice Secretary Leila de Lima and Comelec Chairman Sixto Brilliantes Jr., is all set to conduct an investigation into the alleged massive cheating during the 2004 and 2007 elections. Separately, Congress is also poised to begin its own probe. Rationale for proclamations. Critics immediately belittled the investigations as repetitive and partisan witch-hunts to discredit the former regime. They said that the charges are nothing new and have already been laid to rest when Congress proclaimed Gloria Macapagal-Arroyo as the duly elected president, and Noli de Castro as the duly elected vice president of the country. The critics added that the legitimacy of the proclamation was confirmed when the Presidential Electoral Tribunal (PET), composed of all of the justices of the Supreme Court, dismissed the election protests lodged by the late Fernando Poe Jr. (FPJ) against GMA, and by Loren Legarda against De Castro. To understand the issues, it is best to review (1) the rationale for the proclamations, (2) the dismissal of the protests and (3) the purposes of the new probes. The Constitution mandates Congress to proclaim the winners of the presidential and vice presidential races. To do this, Congress does not count the ballots cast by the voters. It just adds up the total votes shown on the face of all the certificates of canvass prepared by the boards of canvassers in each province or city. It merely passes upon the authenticity and due execution of each city and provincial certificate of canvass. Once Congress is satisfied that the certificate of canvass is authentic and duly executed, it accepts the figures shown on the face thereof and no longer digs into other documents. This is why, despite the protestations of Sen. Tito Sotto to open the ballots or election returns supporting the certificate of canvass, the presiding officer during the 2004 congressional canvass, Sen. Kiko Pangilinan, merely responded with Noted, leading Sotto to christen him Mr. Noted. The election was held on May 10, 2004. Not later than 30 days after the day of the election, the Constitution required Congress to begin the canvass. Congress had a very limited time to canvass because the winners would begin their terms of office on the following June 30. Indeed, it had only about a month to canvass and had no time to look at the ballots and other documents supporting the city and provincial certificates of canvass. GMA was proclaimed winner in the wee hours of June 24, 2004 and took her oath of office at noon of June 30, 2004. Dismissal of election protests. Refusing to concede defeat, FPJ and Legarda filed separate election protests in the PET, which is authorized by law to examine the ballots and to recount them. On Dec. 14, 2004, during the pendency of his protest, FPJ died of cardio-pulmonary arrest, secondary to cerebral infarction. To ascertain the true and genuine will of the electorate, FPJs widow, Susan Poe, moved to be substituted in place of her deceased husband. However, the PET denied her plea because she was not a real party in interest. The PET said that, even assuming that GMA cheated in the elections, Mrs. Poe could not be proclaimed president since nobody voted for her as such. Thus, the PET dismissed the protest without passing upon the election frauds asserted by FPJ. Had Vice President De Castro or Loren Legarda intervened, the PET hinted that the substitution could have been granted, the protest allowed to continue, and the claimed irregularities ruled upon. Later on, the PET also dismissed Legardas protest because, among other reasons, she ran for and won as senator in 2007. By assuming the office of a senator, she was deemed to have abandoned her claim to thevice presidency because she could not hold the offices of senator and vice president simultaneously. Purposes of new probes. Given that the two protests had been dismissed, may the Joint DoJ-Comelec Panel and Congress still investigate the alleged poll cheating? Yes, but not to remove GMA from the presidency. That is no longer possible, her term having expired on June 30, 2010. However, the Joint Panel can investigate for the purpose of determining whether electoral crimes have been committed and by whom. Congress may conduct a separate inquiry for a different purpose: to craft or amend legislation governing the canvass of presidential and vice presidential contests. Verily, the Constitution expressly authorizes Congress to enact laws to determine the authenticity and due execution of the provincial and city certificates of canvass, as well as to promulgate rules for the canvassing of the certificates. On the other hand, GMA would be within her legal rights to keep silent and to decline any request for comment on bare allegations against her. Indeed, when in jeopardy of criminal prosecution, it is best to follow the legal advice to be silent. Any statement made could be used against the declarant in a subsequent legal proceeding. But, for being self-serving, the declaration cannot be used in favor of the accused. *** Gaudencio Cardinal Rosales will turn 79 on Aug. 10. His repeated request to be allowed to retire has finally been approved. In characteristic humility, the low-key cardinal wants to be remembered as a simple worker in the vineyard of the Lord, without public adulation or human reward. Meantime, the faithful eagerly await his successor as archbishop of Manila. Abangan! V. Panganiban

Unprecedented:Zubiriputspeersondebatemode By Cathy Philippine Daily Inquirer 3:32 am | Friday, August 5th, 2011 0share8 7 PACK UP. A staff member of Juan Miguel Zubiri walks past a framed picture of the resigned senator on the floor leaning against the wall of his Senate office. LYN RILLON C. Yamsuan

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While his colleagues in the Senate were not entirely clueless about Juan Miguel Zubiris planned resignation, they found themselves without specific rules on how to handle it and were forced to formulate a policy right after his announcement. Senate Minority Leader Alan Peter Cayetano said he and his colleagues agreed that any resignation in the Senate is irrevocable during a caucus held right after Zubiris resignation speech. [We] decided we should not take it upon ourselves whether to accept or not to accept a resignation. We should just take it at face value. Once you resign, thats it, Cayetano said at the Kapihan sa Senado forum on Thursday. Senate President Juan Ponce Enrile said in an ambush interview that the chamber would remove [Zubiri] from the rolls and then inform the SET (Senate Electoral Tribunal) about it. This means that Zubiris name will no longer be called when the Senate secretariat records attendance at the start of a session. Return to work But Sen. Miriam Defensor-Santiago said Zubiri should return to work until his resignation had been formally accepted by the chamber. She warned that Zubiri would risk committing the crime of abandonment of office should he stop reporting for work at this time. The penal code prohibits the crime of abandonment of office, Santiago said in a statement. It is committed by any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service. Santiago said Zubiris decision to step down merely translated to a courtesy resignation. She cited a Supreme Court ruling that states: A courtesy resignation cannot properly be interpreted as a resignation in the legal sense if it is not necessarily a reflection of a public officials intention to surrender his position. Santiago said Zubiri should continue performing his functions as a senator until the SET had resolved the election protest against him and declared Aquilino Pimentel III the real winner of the 12th slot in the 2007 senatorial race. If Zubiri leaves office, and Pimentel is not yet declared the winner of that office, the position of senator will remain vacant, causing detriment to the public service, she said. She added that the Senates acceptance of Zubiris resignation would be completed only with the issuance of a notice of acceptance. Political future According to Commission on Elections Chair Sixto Brillantes Jr., Zubiri may seek election in 2013 and reelection in 2019 without violating the constitutional prohibition on senators serving more than two consecutive terms. Pimentel, on the other hand, may run for reelection in 2013 but is forbidden from doing so in 2019. If Pimentel is proclaimed as Zubiris replacement, it is he who will be considered to have served one term as senator, and not Zubiri, Brillantes, a veteran election lawyer, said in an interview. In a number of TV interviews, Zubiri said he was open to running for the Senate in the May 2013 midterm polls. Senators serve six-year terms. Every three years, half of the 24 Senate seats are vacated. Article VI, Section 4 of the 1987 Constitution states: No senator shall serve for more than two consecutive terms. Only two election protests in the Senate have succeeded, according to the Senate website and Comelec records. The two cases took place in the early years of the Third Republic, when the Senate was composed of 16 seats, with each senator serving four-year terms. In April 1953, the SET ousted eighth-placer Teodoro de Vera (Liberal Party) and replaced him with ninth-placer Claro M. Recto (Nacionalista Party), who claimed to have won in the November 1949 Senate race. In December 1949, the SET installed another Nacionalista candidate, Eulogio Amang Rodriguez Sr., the 10th-placer, and ousted eighth-placer Liberal Carlos Tan, who had earlier been proclaimed among the winners of the November 1947 elections. Rodriguez sued Tan to recover the salaries and allowances he received during his usurpation. But the Supreme Court ruled in 1952 that while Tan was in the Senate, he was entitled to his pay and other privileges in the performance of his duties. Predicament Cayetano said many of those present when Zubiri announced his resignation on Wednesday agonized over the damned-if-you-do, damned-if-you-dont predicament into which his move put them. Who wants to accept the resignation of a colleague? We live in a society of extended families, and whether you agree politically with [your colleagues] in the chamber, you see him every day and your [acceptance of his resignation] will have consequences, Cayetano said. He added: If you vote not to accept, the public will accuse us of doing a moro-moro (stage show) and accuse us of injustice. Senator Zubiris unselfish act would be tainted because his colleagues refuse to accept the resignation. Thats why the agreement was: Once resigned and it [is done] in writing, lets consider that resigned. Cayetano noted that neither the Constitution nor the Senate rules explicitly provided for the resignation of a lawmaker. The framers of the Constitution did not contemplate this situation. [Perhaps] it did not want to deal with this situation where a member of Congress resigns, and left the Senate or the House to pass its own rules, he said. No need to accept Cayetano said it was also not clear in any law who should accept, or whether there is a need to accept, [a lawmakers resignation]. If we accept the resignation, we admit we have the power to [do so] and set this as a precedent. We voted not to vote to accept. We had a consensus that when someone resigns, there should be no need to accept. In effect, any resignation in the Senate is irrevocable, he said. Another thing, Cayetano said: He and his colleagues in the minority agreed that Zubiri had made known his intention to leave the Senate and let the SET resolve the election protest filed against him by Pimentel. We looked at intent, and Senator Zubiris intent was to let the legal process move on, to let the SET decide, and not to hold on to his Senate seat to free him and his family from more stress and frustration, Cayetano said. With reports from Jerome Aning and Christian V. Esguerra

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By: Conrado Philippine Daily Inquirer 4:48 am | Tuesday, August 2nd, 2011 3share19 15

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The court denies with finality the motion for reconsideration. No substantial arguments were raised in the MR. So said the Supreme Court spokesman Jose Midas Marquez. The case has to do with the Truth Commission. Last year, the Court voted 10-5 to scrap P-Noys first executive order creating it. It violated the equal protection clause of the Constitution, the Court said, and could serve only as a tool for vindictiveness and selective retribution. The government appealed the decision, and the Court voted to reject it. I blame both the government and the Supreme Court for the murder of truth. The government for simply and frustratingly failing to grasp the essence of a Truth Commission. From the start, it saw it merely as a politically expedient solution to the problem of Gloria Macapagal-Arroyo having left as one of her booby traps in government a lackey for an ombudsman. That lackey was Merceditas Gutierrez. Impeachment being time-consuming with no guarantee of success, the government thought a Truth Commission would be a way of getting around it. In short, it saw the Truth Commission as taking the place of the Office of the Ombudsman. At the very least the rub there was that it was legally infirm. Joker Arroyo and several Arroyo allies immediately protested the superfluity of the office, arguing that it would merely duplicate, at great expense to the taxpayers, the functions of the Office of the Ombudsman and the Department of Justice. A perfectly reasonable argument, whatever its motivations. You dont create a new office to do what an existing office does simply because you dont control it. That sets a dangerous precedent. At the very most the problem was that it missed an incredible opportunity to set things right. A Truth Commission is not another name for Ombudsman, it is not another office for the justice department, it is not another initiative to recover ill-gotten wealth like the Presidential Commission on Good Government. As the various Truth Commissions all over the world show, it is there to give justice to the victims of a deceitful regime, to rectify the wrongs of a murderous regime, to arrest the effects of a vicious regime. A Truth Commission is there to expose the lie of a government claiming to be one. If a Truth Commission is there to fight corruption at all, it is only to fight corruption of another order, a far more lethal form of corruption. It is there to fight the spiriting away of everything that gives a people self-respect. A Truth Commission is not there to punish crooks, it is there to punish oppressors. It is not there to stop pillage, it is there to arrest an outrage. It is not there so a people can cry, Oh no, not again, it is there so a people can vow, Never again! For all my appreciation of what the government is doing to push back thieves and crooksand P-Noy gave a good accounting of himself in that respect in his State of the Nation AddressI remain frustrated by its inability to see beyond that framework. To see the full scale of wrongdoing, or the true depths of perversion, the previous regime wrought. That was what doomed the Truth Commission from the start. Of course you cannot expect the Supreme Court to appreciate that distinction, or allow something like that to exist if they do. Many of the justices owe Arroyo, not least its chief, Renato Corona. The last thing this Court has shown itself able to do is appreciate its own reason for being, which is to practice law in the grand manner. Which is to see beyond the letter of the law to the spirit of the law. Which is to see beyond ones nose and glimpse what lies beyond the horizon. Which is to see the difference between supreme wisdom and supreme folly. How is it possible to be a justice and not fail to be outraged by what Arroyo did with the law? Which, like Marcos, was to use the law to thwart the law, to use the law to foment lawlessness, to use the law to wreak all sorts of kalokohan. It wasnt just Marcos who was a stickler for the law, who used it to justify the most lawless acts, Arroyo was too. She herself judged herself for talking to a Comelec official and found herself not wanting. She had a law that prevented all public officials from testifying without her permission that she stole the vote. And she had a law that conferred on her the privilege to do wrong with impunity, also called executive privilege. You are a justice and you are not flailed by conscience to do something about that? And how is it possible to be a justice and not fail to be outraged by what Arroyo did with justice? The revelations about Arroyos theft of the vote are just confirmations of what we already knew for a long time. A theft of the vote that entailed, not quite incidentally, the unleashing of monstrosities like the Ampatuans, cutthroats ready to cut throats for the greater glory of Gloria. There is a difference between justice and vindictiveness. And why on earth shouldnt retribution be selective? You punish only those people who commit crimes, and you punish especially epically only those people who commit epic crimes. You are a justice and you cannot see that? Twice, a Truth Commission has been needed in this country. First in the aftermath of martial law, and second in the aftermath of Arroyos rule. Both times to undo the effects of the past, both times to flog those who flogged the country, both times to make sure another Marcos or Arroyo wont rise again. The first one was never contemplated during Corys time, the second was contemplated wrongly during P-Noys time. For which a Supreme Court, eager to find any excuse to strike down an initiative that would bring some of its members down, eagerly struck it down. Well, life cannot move on from a wrongful death.

UnlamenteddeathoftheTruthCommission By: Fr. Joaquin Philippine Daily Inquirer 5:19 am | Monday, August 1st, 2011 1share15 13 When the report on the final death knell for the Truth Commission was announced by the Supreme Court, there was no lamentation in the Palace. Secretary Edwin Lacierda simply said in a matter-of-fact way that the Palace accepted the decision. No one was surprised by such reaction. The main reason for the issuance of Executive Order No. 1 creating the Truth Commission, after all, was the obvious Palace perception that the Office of the G. Bernas S. J.

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Ombudsman could not be relied upon to pursue a campaign of walang corrupt, walang mahirap. With the departure of the former ombudsman, the Truth Commission became obviously unnecessary. As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have easily amended the provisions of the EO to make it conform with the demands of constitutionality. The cardinal sin of the executive order was that in the Courts judgment it violated the requirements of equal protection. As the Court said: Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the previous administration as its sole object makes the PTC an adventure in partisan hostility. Thus the Court also agreed with the contention that in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to that of former President Arroyo. The Court, however, concluded: Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution. The Palace, however, chose to let the Truth Commission die. My impression is that the governments motion for reconsideration was filed halfheartedly. Hence, the defeat was unlamented. Why so? Because, aside from the fact that there would be a new ombudsman, the decision was in fact an affirmation of the legality of the Palaces determination to pursue a campaign against graft and corruption. The decision, very importantly, was and is an affirmation of the elastic powers of the presidency. This affirmation is based on an often-ignored portion of Article VII, Section 17 of the Constitution which says that the President shall ensure that the laws be faithfully executed. This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of executive power. Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated. Echoing this earlier decision, the Truth Commission decision said: Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed. The Truth Commission was also challenged on the ground that it was a usurpation of the powers of the Ombudsman and of the justice department. On this point the Court said: Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. When one considers these strong affirmations of the scope of executive power, one can see why President Aquino, in his second Sona, was so confident in his determination to pursue his administrations campaign to unmask and punish those who have committed graft and corruption. In fact, the ongoing investigations of the PCSO scandal and the election, fertilizer and ZTE scandals are, without announcing it in so many words, an implementation of the goals of the Truth Commission. And no one is complaining about violation of equal protection. Indeed there is no discrimination; only prioritization.

Notforthefaint-hearted By: Artemio Philippine Daily Inquirer 1:01 am | Sunday, July 31st, 2011 5share13 8 Two readers, probably lawyers, dared me to demonstrate my thesis last Sunday that, absent grave abuse of discretion, the judiciary should refrain from deciding economic and business issues that are best left to the political branches of government, especially the Executive Department. After all, our people look up to the President, ably assisted by his economic team, to alleviate poverty and promote their well-being. Not legal or logical. Here is my response. The Supreme Courts decision in Gamboa v. Teves (June 28, 2011) observed that the par value of PLDT voting or common shares is only P5, yet they each earned P70 in 2009. In contrast, the non-voting or preferred shares have a par value of P10, but they earned a measly P1 per share In other words, preferred shares have twice the par value of common shares but (earned) only 1/70 of the dividends of common shares. Then, it concluded, This undeniably shows that beneficial interest in PLDT is not with the non-voting preferred shares (mostly owned by Filipinos) but with the common shares (mostly owned by aliens), blatantly violating the constitutional requirement of 60 percent Filipino beneficial ownership in a public utility. The uninitiated in business may find the foregoing discussion logical. But I respectfully submit that it is neither legal nor logical. It is not legal because the Constitution does not speak of dividends. Nowhere does it talk of how much each kind of shares should earn. The Charter speaks only of control of a corporation engaged in public utilities, not of beneficial ownership. It is not logical because it ignored the market value of the shares and their rate of returns. The decision itself noted that the PLDT common shares with a par value of P5 have a current stock market value of P2,328 per share, while the PLDT preferred shares with a par value of P10 per share have a current stock market value ranging from P10.92 to P11.06 per share. Real financial benefits. However, it failed to use this critical information in computing the actual and real financial benefits. Look, on the basis of the facts given by the Court, an investor needs about P11 to buy a PLDT preferred share, which would earn P1. Here, the rate of return on the investment is nine percent. On the other hand, to acquire a common share, an investor must pay P2,328 yet earn only P70 or only about three percent. On this basis, preferred shares earn three times more than the common shares. So, it is neither logical nor correct to say that beneficial ownership in PLDT rests with foreigners just because they hold more common shares than Filipinos. V. Panganiban

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Clearly, the par values of shares are not determinative of their real worth or earning potential. Investors buy shares depending on their appetite for risks, not on the shares par values. Conservatives want preferred shares because they are less risky and their earnings, like bank deposits, are fixed. The adventurous choose common shares because they could potentially be worth much more. Or much less, if the company flops. While common shares may yield smaller dividends, they can in time increase their market value. Sometimes, a company strikes oil, or perfects its high tech products. When this happens, the market value of common shares exponentially grows while the yields of preferred shares remain fixed. A classic example of exponential growth is Microsoft, which made Bill Gates the richest American. Another example. In 2001, PLDTs net income was about P3.4 billion; its common shares had a market price of P417. Then, led by Manuel V. Pangilinan and his gung ho Filipino management team, it expanded into high-risk but high-reward wireless digital cell phone technology. In just four years, in 2005, its net income exponentially soared 10 times to P34 billion. And kept growing since then. In 2010, its net income was P40 billion and its common shares market price rose to P2,554. Of course, in bad times, common shares could collapse and reduce billionaires to paupers, as has happened here in 1997, and in the United States in 2008. But then, thats what business is all about. It is about taking and managing risks, not about legislating profits or promulgating decisions on economic benefits. It is not for the faint-hearted or for jurists to intrude into unnecessarily. *** New ombudslady. The longest and most thunderous ovation during President Aquinos Sona reverberated when P-Noy announced the appointment of Justice Conchita Carpio Morales as the new ombudsman. I think this was a tribute to both the President and the retired magistrate. When we were still sitting in the Supreme Court, Justice Morales and I differed a few times, especially on economic issues. But I have never doubted her probity, integrity, independence and love of country. That is why I fully supported her appointment. Our people, I am sure, can look forward to a fair, objective and robust investigation and prosecution of graft under her watch.

Sonasmetaphorsforakinder,gentlernation By: Raul Philippine Daily Inquirer 9:11 pm | Thursday, July 28th, 2011 5share18 13 ESSENTIALLY PRESIDENT Aquinos latest State of the Nation Address has been criticized for being more populist than institutional. It aimed at changing our attitudes and ways of thinking, rather than laying out technocratic projections and legislative roadmaps. The policy wonks and the legislative types were disappointed, but sorry, guys, who says you are the main audience of the presidential address? I can perfectly understand why we have come to expect the Sona to deal with the hard edges of policymaking and lawmaking. After all, under a constitution of separated powers, that is how a president leads. Day by day, he issues marching orders to his subalterns in the executive branch. But once a year, he sends just the right signals to the elected deputies of the people in that other elected branch of government, Congress, in whose home the Sona is delivered and who is expected to pass the laws needed to carry out his reform agenda. But perhaps this populist President wants to govern popularly as well. If he wants Congress to follow, he talks past the elites and institutions, and speaks to the real boss in the language that that boss speaks. Thus all the Sonas talk about saying thank you to the jeepney driver, the teacher and student, the artist, the policemen, firefighters, soldiers and street sweepersand these spoken in Filipino. Let the politicians fiscalize, that unique term of Pinoy English for career naysaying and professional contrarianism, but we the people must make the effort to recognize the good that is being done. To start with, the barest minimum legal requirement says nothing about road-mapping and agenda-setting. All that the Constitution says is that the President shall address the Congress at the opening of its regular session which shall be held once every year on the fourth Monday of July. Moreover, if you are looking for smoke signals on presidential priorities, that is dealt with in a separate section of the Constitution that actually fixes a 30day deadline for the president to submit the proposed budget to the Congress. But the real question is: If not in the Sona, where else can we as a nation talk about reforming our values and attitudes? Inherited wisdom says: in schools, churches and with local variants of Oprah Winfrey, but certainly not in presidential speeches. Its about time we changed all that. The metaphor a kinder and gentler nation came from the acceptance speech given by George H.W. Bush when he was nominated as the 1988 Republican standard-bearer to succeed Ronald Reagan. (It wasnt a Sona, Im sure Ill be reminded by the critics.) It was his way of setting himself apart from Reagan who was ideologically averse to the welfare state. It was his way, too, of matching the welfare state credentials of the Democrats and their candidate, former Massachusetts Gov. Michael Dukakis. The first President Bush said: Prosperity allow[s] us to pursue the better angels, to give us time to think and grow. Prosperity with a purpose means taking your idealism and making it concrete by certain acts of goodness. It means helping a child from an unhappy home learn how to read Some would say its soft and insufficiently tough to care about these things. But where is it written that we must act as if we do not care, as if we are not moved? Well I am moved. I want a kinder, and gentler nation. This Sona will be remembered for the same spirit, though in a less elegant turn of the phrase. The term utak wang-wang reflects the more graphic idiom of the streets from whence it came: It is the attitude that power is free to be used for egoistic preening and self-aggrandizement. And even more significantly, this Sona gave it a new angle: Utak wang-wang is not a sin of government alone, but afflicts the private citizen as well. He struts and swaggers when he can, and he accepts the strutting and swaggering by others more powerful than him. Recall Bushs words: Some would say its soft and insufficiently tough to care about these things. Recall too that during those heady days of struggling against imperialism, feudalism and bureaucrat-capitalism, anti-corruption crusades were seen merely as political bombast between the ins and the outs of the political elite. We were told that we must turn to the true and fundamental ills of society, and that tales of corruption were merely a side story and not the controlling narrative. Today there has been a sea change in attitudes about corruption. We have come to realize that all the finest government reforms cannot be carried out through institutions that are impoverished or, even if enriched, are only thus perverted. Conversely, we have come to realize that even a poor government like ours can afford to help its neediest citizens. Regardless of ideology or economic system, and even while we await an economic C. Pangalangan

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turnaround, we have enough funds for conditional cash transfers, for decent health care, schools and welfare services. Yet corruption wastes away those resourcesalmost 50 percent of pork barrel alone, by some estimatesand feeds the system of patronage that perpetuates institutionalized theft. Corruption complicates even the simplest act of charity. Faced with Typhoon Juaning, even the plain act of giving is hobbled by the fear that emergency funds, once released, will be pocketed by local rulers or that relief goods will not get to the real victims. Its bad enough that material help is wasted and diverted. Its worse that spiritually the instinct to care and nurture is poisoned by cynicism and distrust. Frankly, I wouldnt mind a Sona that confronts the poverty of the Filipino soul.

TheSpratlys By: Fr. Joaquin Philippine Daily Inquirer 4:38 am | Monday, July 25th, 2011 1share18 14 To begin to understand the controversy over the South China Sea, a helpful backgrounder is a book by Rodolfo C. Severino, Where in the World is the Philippines? Chapter 5 of the book is about the South China Sea controversy. But if you are looking for a solution to the problem, you probably will not find it there. Nevertheless let us see the beginning of the story in brief. During World War II Japan had occupied the Spratly Islands. From there Japan had launched its attacks against the countries in the region. If Japan had won the war, Japan would be a major actor in the contest over the South China Sea and would probably be lording it over the rest. But Japan lost. The Treaty of Peace of 1951 ending the war was signed in San Francisco by 49 nations. By this treaty Japan renounced all claim over the Spratly Islands and the Paracel Islands. The Philippines and Vietnam were parties to the treaty, but neither Mainland China nor Taiwan was. The Treaty, however, is no help to the settling of the current controversy. The Treaty does not say which country should have a legal claim over the island. A subsequent treaty between Tokyo and Taipei and a still later Treaty of Peace and Friendship between Tokyo and Beijing do not touch on the territorial issue either. Thus the squabbling remains until today. How did the Philippines get involved? It started with Tomas Cloma, a Filipino educator and entrepreneur, who had planned to open an ice plant and cannery in one of the islands. But Cloma went beyond his interest in an ice plant and a cannery. In 1956 he sent a private training ship on an expedition to the islands. Subsequently he released a Notice to the Whole World claiming a vast area of the South China Sea which included the Kalayaan islands. He also sent a letter to the secretary of foreign affairs of the Philippines, Carlos P. Garcia, that with a crew of about 50 persons he was undertaking a survey and occupation of an area outside of Philippine territory and belonging to no one. Shortly thereafter he called the area Freedomland. Cloma stressed that the claim had not been made by the Philippines but was being made by himself as a Filipino citizen. He followed this with what may be called a constitution for the area prescribing a form of government and incorporating the Universal Declaration of Human Rights and the Philippine Bill of Rights. By these acts he said that he hoped to deter other nations from claiming the territory. Although the Philippine government under Ramon Magsaysay was taking all this as a comic opera, it was serious enough to provoke protests from Taiwan, Beijing and Vietnam. Beijing even took naval action against the Cloma activities. And when Cloma wrote a letter to the Philippine secretary of foreign affairs reporting Taiwanese activities in the area, the secretary in 1956 expressed the view that the islands were res nullius. He said that the Philippine government considered the islands to be under the de facto trusteeship of the Allied Powers since there had been no territorial settlement by those same Powers. The winds of change in the Philippines began in 1971 under President Marcos. The government expressed concern about the security implications of what was happening in the area. Taiwanese forces were reported to have occupied some islands. While maintaining that the area was res nullius and that no state could introduce troops into the area without the consent of the Allied forces, the Philippine government nevertheless maintained that such res nullius could be acquired by occupation and effective administration. Marcos in fact announced that the Philippine government was in occupation and effective administration of some islands. Naturally protests came from Taipei and Beijing. Things became more complicated in 1971 when Secretary of Foreign Affairs Carlos P. Romulo recommended more development of the area and the augmentation of the military forces already deployed there. Moreover, the foreign affairs undersecretary had asserted in the Seabed Committee of the UN that the Philippines was in effective occupation of Kalayaan Islands. Protest, however, came not just from China and Taipei but also from within. A former Philippine diplomat wrote to President Marcos claiming that what the government was doing contradicted a commitment made by Secretary Garcia in 1957 that the Philippines recognized the Free Territory of Freedomland. This internal conflict, however, seemed to find a solution in a Deed of Assignment and Waiver of all rights won by Cloma over the islands through development and effective occupation. But biographers of Cloma claimed that the Deed had been executed under duress and in exchange for the release of the aging Cloma after 57 days in detention in Camp Crame during martial law. Thus, in the freer atmosphere after Edsa I, Tomas Cloma & Associates submitted a claim to President Cory Aquino asking for reimbursement of expenses incurred from 1947 to 1974 in the exploration, occupation, development, administration, organization and settlement of Freedomland. What this seems to mean is that Tomas Cloma & Associates have already affirmed that a transfer of rights had indeed been made to the Philippine government. But what did Tomas Cloma & Associates transfer? China, Taiwan and Vietnam are asserting that Nemo dat quod non habet. Only the UN can settle this controversy authoritatively; but no one wants to accompany the Philippines to the UN. G. Bernas S. J.

OFWcallcenter;judicialself-restraint By: Artemio Philippine Daily Inquirer 10:04 pm | Saturday, July 23rd, 2011 V. Panganiban

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4share16 8 Whenever I write about our overseas Filipino workers, as I did last Sunday, I am flooded with e-mail lamenting the governments inattention to our OFWs woes. Many readers are moved by their sad plight and invariably offer creative ideas and out-of-the-box remedies. The best creative solution I received comes from Alberto Lina who said that his company (Air 21) would put up a call center that OFWs anywhere in the world can dial for help, free of charge, 24/7. Air 21 already operates a call center. All it needs is the cooperation of the Department of Labor and Employment. *** Foreign shares in utilities. To explain a major controversy besetting the economy, let me first cite the Constitution. It states that (1) only Filipino citizens or corporations at least 60 per centum of whose capital is owned by such citizens may operate a public utility such as a phone company; (2) the participation of foreign investors in the (board of directors) of any public utility shall be limited to their proportionate share in its capital, and (3) all the executive and managing officers of such corporations must be Filipinos. In turn, the capital stock of a corporation may be divided into (a) voting and (b) non-voting or preferred shares. Only voting shares can be used to elect members of the board of directors. Non-voting or preferred shares cannot; but they may legally be used in voting on very important issues, like in disposing of all or substantially all of the corporate assets; in incurring or increasing bonded indebtedness; or in merging the corporation with another; or in dissolving the corporation; etc. A majority of 10 Supreme Court members led by Justice Antonio T. Carpio held in Gamboa v. Teves (June 28, 2011) that the word capital in the cited charter provision should refer only to voting shares, not to the total outstanding capital stock. Hence, foreign investments in public utilities, like PLDT, should be limited to only 40 percent of the voting shares. The Court said that this interpretation will ensure that Filipinos will effectively control public utilities because it is the board of directors that controls or manages a corporation. To assure such control, it directed the chairperson of the Securities and Exchange Commission (SEC) to apply this definition of the term capital in determining the extent of allowable foreign ownership in respondent Philippine Long Distance Telephone Company, and if there is a violation of the Constitution, to impose the appropriate sanctions under the law. A minority of three dissenters, led by Justice Presbitero J. Velasco Jr., (two seats were vacant) opined that jurisdictional, procedural and due process issues hobble the majoritys decision. On the merits, the dissenters argued that capital should include not only the voting but also the preferred shares because this was the interpretation given by the framers of the current and previous Constitutions since 1935. Further, under item 2 above, the Constitution already assures Filipino control of public utilities because, in electing directors, foreigners can use only 40 percent of the common shares they hold, even if they own more than that percentage. Hence, they will never be in a position to elect majority of the members of the board of directors Filipinos will always control the board although they (may) own less than 50 percent of the (voting) shares. Also under item 3, only Filipinos may be executive and managing officers of public utilities, thus doubly ensuring Filipino control. Liberty and prosperity. I believe that in construing the economic provisions of the Constitution, courts should absent grave abuse of discretion defer to the government, especially the Executive Department. Here, judicial restraint nay, self-restraint is the better course. Au contraire, in litigations involving civil liberties, the scales of justice should weigh heavily against the government and in favor of the people, particularly the poor and marginalized. I have always espoused this philosophy of liberty and prosperity. With due respect, I submit that the judiciary does not have the mandate, not to say the expertise, to decide on matters relating to the economy and prosperity, and must as much as possible defer to the officials elected by the people to look after these issues. After all, if these elective officials fail to deliver on their mandate, they can be held accountable during periodic elections. This is how democracy thrives. During the last several decades, our elected leaders despite their partisan differences have always relied on foreign investments to propel our economy and alleviate poverty. Even the majoritys decision concedes that over the last 75 years, the Charter has been uniformly construed to refer to all shares, not to voting shares only. Most objectionable is the threat of sanction that the Court ordered the SEC chair to impose retroactively. How can we punish investors who relied in good faith on governments blandishments over the last 75 years? That is most cruel and unfair. However, if the decision cannot be reversed, I respectfully submit that, instead of being sanctioned, investors should be given a reasonable period of time, a few years, to comply with the new ruling. Finally, I believe Congress should consider passing a new law, which will govern an orderly and fair divestment process that will not unduly derail the countrys economic progress.

ZaldyAmpatuansbidforlifetimeimmunity By: Raul C. Pangalangan Philippine Daily Inquirer 12:11 am | Friday, July 22nd, 2011 2share10 8 Zaldy Ampatuans offer to testify in exchange for witness protection conveniently confuses fundamental legal issues and enables him to buy lifetime immunity from punishment for the Maguindanao massacre. The hocus-pocus is this: Ampatuan wants to testify on one crime (election fraud) but buy immunity for another crime (the massacre). That is not contemplated by the law, but I share lawyer Harry Roques sense of just how Ampatuan plans to do it. There are two possible legal regimes for an accused who turns his back on his cohorts and offers to testify in support of the prosecution: on one hand, discharge of an accused to be a state witness and, on the other, the Witness Protection Program that provides sanctuary to a witness in fear of his safety. Notice that WPP applies both to the turncoat co-accused (the state witness) and the bystander who merely saw it happen, will speak out, but is afraid for his safety. The first legal regime is the Discharge of accused to be state witness under the Rules of Court. This operates as acquittal and shall be a bar to future prosecution for the same offense unless of course the accused does not deliver on his promised testimony.

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The second legal regime is the Witness Protection Program or RA 6981 under which the witness is given security protection for himself and his family, including housing and allowances and other financial assistance. Both legal regimes give immunity to the turncoat/state witness only for the offense in which the testimony is given. If Ampatuan is truly serious about making a clean breast of how Gloria Macapagal-Arroyo cheated Fernando Poe Jr. of the presidency in 2004, why doesnt he apply to be discharged as a state witness? I can imagine several reasons. One, as a state witness, he will first have to be charged as an accused in this case before he can be discharged if he offers valuable testimony. However, under the WPP, he need not even be charged at all. In fact, the prosecutor is required not to include the Witness [as an accused] in the criminal complaint. Two, he would need the approval of the court to be discharged as a state witness, since he has already been included in the charge. But to be placed under witness protection, he would need only the approval of the prosecutor (a weakness already pointed out by UN Special Rapporteur Philip Alston, who felt this unduly politicized the process) or, if already charged, the court is duty bound to order [his] discharge and exclusion [as an] accused. Third, discharge as a state witness requires very high standards, among others, that there is absolute necessity for the witness testimony; there is no other direct evidence available; his testimony is substantially corroborated in its material points; and he does not appear to be the most guilty. While the WPP adopts the same high standards for the turncoat witness, it lowers the standard for the bystander witness, among others: that the crime involved be serious enough; his testimony is substantially corroborated in its material points; and there are genuine threats to his or his familys safety. While Zaldy Ampatuan was certainly no bystander in the Maguindanao massacre, it is unclear at this stage if he purports to be a direct participant or bystander in GMAs election fraud. Fourth, and this is the clincher, either way Ampatuan gains immunity only from prosecution for the offense in which his testimony is given, but the WPP offers even broader protection. The duration of WPP protection is phrased thus: To have a secure housing facility until he has testified or until the threat, intimidation or harassment disappears or is reduced to a manageable or tolerable level. The logic of the WPP is perfectly understandable. If the goal is to encourage witnesses to step forward and tell the truth, the witness must be assured of sanctuary for as long as his safety and that of his family is in peril. And if Ampatuan qualifies for witness protection for his testimony on GMAs election fraud and he is subsequently convicted for his participation in the Maguindanao massacre, the WPP sanctuary will prevail over the arrest and commitment order to send him to Muntinlupa. After all, he offered his truth in exchange for his safety. If we already have his truth, to send him to jail is tantamount to lifting all his protection and sending him to sure death. That is why I say it again: If Ampatuan is truly serious about telling the truth about GMAs fraud, let him do it via discharge as a state witness. Frankly I doubt that he will thus qualify since GMAs co-conspirators have begun to crawl out of the woodwork to speak out on their dark scheme to cheat FPJ, and there is no absolute necessity for his testimony since there is other direct evidence now available. But if he still does qualify, he will be immunized from punishment only for the crime of election fraud, rather than for the murders of 58 innocent civilians in Maguindanao. But for him to claim sanctuary under the WPP, he can be treated possibly as a mere bystander in election fraud and remain un-charged for that crime, still qualify for witness protection, and for as long as his safety is in jeopardywhich can be a very very long timeenjoy 24-hour security at government expense plus housing and financial assistance for himself and his familyeven after he has been convicted for the massacre. Upham Suwaib, the self-confessed Ampatuan henchman during the massacre, was assassinated after he was interviewed on Al-jazeera TV but before he qualified for witness protection. It must be one of the sadder ironies of Philippine justice that the quintessential state witness is dead and buried, and now an Ampatuan seeks witness protection.

Lapsesandoffenses Philippine Daily Inquirer 12:15 am | Friday, July 22nd, 2011 1share10 9 It is good to know that Commission on Elections Chairman Sixto Brillantes has warmed up to the possibility that the truth about the 2004 and 2007 elections may be just around the corner. His appeal to former Commissioner Virgilio Garcillano to reveal what he knows about election fraud in those two crucial votes is too timid to our taste, but its a start. Commissioner Garcillano, please come out. Anyway we now have a different administration, he said. We would have preferred that Brillantes, a leading election lawyer before his appointment to the Comelec, used the considerable powers of his office to force the issue and bring the man widely believed to be at the center of the Hello, Garci scandal behind the Arroyo administrations crisis of legitimacy to justice or at the very least to an encounter with the truth. Not because the Comelec is part of a different administration it is an independent constitutional body but because the fraud that Garcillano is believed to have engineered may have been the most consequential election offense since Imelda Marcos and her slate stole the elections from Ninoy Aquino and the Lakas ng Bayan candidates in 1978. It demands closure. While Garcillano or his principals cannot be charged with the crime of electoral sabotage, which carries a penalty of life imprisonment but was enacted only after the 2004 vote, Gloria Macapagal-Arroyo can still be held liable for the series of election offenses that Garcillano and company are believed to have committed, to ensure a million-vote margin of victory. (Note that criminal liability in the vote fraud of 2007 has not yet lapsed.) We agree with Brillantes view, and we are certain many others do too, that in the case of a president who enjoys the privilege of presidential immunity, the five-year prescription period for any election offense that that president may have committed cannot start until after the privilege of immunity lapses. It is as simple as saying that when she was president, we could not have filed any case against her because she was immune from suits. So for me, prescription should start on June 30, 2010 when her term expired, Brillantes said. To assert otherwise is to argue that a president can never be convicted of an election offense, even if the evidence is clear and overwhelming, simply because the five-year prescription period starts and ends within the presidents six-year term.

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The Comelec can certainly proceed on this path, but given the reality of a Supreme Court filled with Arroyo appointees, it is still possible that a legal challenge to this legal theory will end with the impossible conclusion that liability for any election crime she may have committed has already prescribed. That would be a pity, because there is a direct link between the massacre of the votes in Maguindanao and the massacre of the unfortunate victims in that province. We repeat what we wrote in this space yesterday: It is the election fraud perpetrated in Maguindanao in 2004 and again in 2007 that emboldened the masterminds of the gruesome Ampatuan, Maguindanao massacre of 2009 to think that they could get away with it. The backhoe that serves as metaphor for the massacre, the worst act of political violence in our history, is a potent symbol precisely because it reflects both the unprecedented scale and brutality of the massacre as well as the callous use of official government resources, complete with a politicians name, in the horrific crime. What can be done to hold those responsible for election fraud to account? The Comelec chairman suggests some possibilities, including falsification of public documents and graft common crimes, Brillantes said, and therefore not within our jurisdiction. Maybe the time has come to consider legislation with stronger penalties against those who commit electoral crimes. On top of several years in prison and perpetual disqualification from political office, maybe those candidates who serve in office because of election fraud should be forced to return every centavo received from public coffers, plus interest. A new law like this may not be able to bring to justice all the operators responsible for anomalies in the 2004 election, but at least we would have learned the right lessons from it.

SC affirms ex-BI chief's conviction for escape of 11 Indians By Edu Punay (The Philippine Star) Updated July 19, 2011 12:00 AM Comments (25)

MANILA, Philippines - The Supreme Court (SC) has affirmed the conviction of former Bureau of Immigration commissioner Zafiro Respicio over graft and falsification charges for the controversial flight of Indian drug traffickers popularly known as the 11 Little Indians in 1994. In a 24-page decision, the third division of the high court denied Respicios petition seeking reversal of the guilty verdict handed down by the Sandiganbayan. The high court held that the anti-graft court was correct in finding the former official guilty of violation of Section 3 (e) of Republic Act 3019 (Anti-Graft and Corrupt Practices Act) and falsification of public documents for giving travel authority and authorizing the release of the Indian drug suspects. The court also upheld the sentence of six years to 12 years of imprisonment for graft and six months to six years for falsification. Respicio was likewise perpetually disqualified from holding public office and was ordered to pay a fine of P5,000. Court records showed that on July 4, 1994, agents of the National Bureau of Investigation (NBI) Domestic Intelligence Service arrested 11 Indians identified as Pramod Jogdeo, Shaik Easaf, Sunkavalivenkata Lakshimanaraya, Augustine Rajesh, Nagayya Vanam, Mohammad Rafique, Kausar Ali, Nabi Gulam, Mengesh Jadhav, Laxman Kadam, and Cajetan Merwyn Mujares, in a raid on a drug laboratory in Las Pias City. They were then charged with violating RA 6425 or the Dangerous Drugs Act of 1972 (now Dangerous Drugs Act of 2002 or RA 9165). The respondents filed individual requests for self-deportation with immigration after a month. Despite an ongoing preliminary investigation against them, then commissioner Respicio and associate commissioners Bayani Subido Jr. and Manuel Rojas approved their requests. With a sentence of death penalty to an accused proven guilty at the time, drug trafficking was a non-bailable crime in the country. Capital punishment has since been repealed. The Office of the Ombudsman had revealed in its complaint before the anti-graft court that the requests for deportation were approved and signed during Respicios birthday party. Subido and Rojas were cleared of the charges because the court ruled that there was no conspiracy among the accused and that the prosecution failed to prove their guilt.

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But the SC said: Whether the prosecutor moved to obtain a hold departure order is beside the point, what is material being that there was a pending preliminary investigation against the Indians, contrary to the statement in the order that there is no indication from the records that the (Indians) are the subject of any written complaint... which pending preliminary investigation called for the provisional dismissal of the deportation case. In any event, the cited August 15, 1990 DOJ Circular No. 38 cannot be made to apply in the instant case as it clearly pertains to Filipinos, and not to foreigners, who opt to fly the coop to evade criminal prosecution, the decision reads. The SC likewise noted that the untruthful assertion of petitioner (Respicio) not having been made in an affidavit or in a statement required by law to be sworn in, he is, without any doubt, liable for falsification under paragraph 4 of Article 171 of the Revised Penal Code. It bears emphasis that petitioners justification in issuing the Order was the lack of any written complaints before any government agency nor before any private person against the Indians, which was not the case.

Battlingoverbilboards By: Fr. Joaquin Philippine Daily Inquirer 6:14 am | Monday, July 18th, 2011 1share9 8 About five years ago Manila was already battling over billboards. As I recall, however, the issue then was fairly simple. The campaign was not so much about what the billboards contained but about where they were placed and how they were built. If place and quality of construction are the only factors in issue, regulation can easily be justified. The state is sufficiently armed with police power which enables it to protect the health and safety of the public. Protection of life and limb is a perfectly valid basis for regulation or even prohibition. The MMDA has echoed safety as its concern in the current controversy. But the issue of decency is what triggered the current campaign. That is more delicate. Billboards, of course, are property and definitely property is subject to regulation. But billboards are also a form of speech. So you will have to deal with the distinctions and sub-distinctions related to the regulation of speech. Billboards might contain political speech urging support for a proposed law or a senatorial candidate. They might also contain religious speech. Political speech and religious speech enjoy the highest form of constitutional protection. The current billboard controversy is about commercial speech. Commercial speech is speech whose object is to invite a commercial transaction such as a sale or a contract. The billboards in issue are about gentlemens briefs and ladies bras. How is commercial speech regulated? For many years jurisprudence did not consider commercial speech protected by the Constitution. The reasoning was that the broad powers of the state to regulate business included an equally broad power to regulate commercial speech. But now commercial advertising enjoys constitutional protection. Jurisprudence now says that society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely commercial, may be of general public interest. The facts of decided cases furnish illustrations: a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, . . . a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs Nevertheless commercial speech has not been accorded the same level of protection as that given to what is called core speech, that is, political and religious speech. Thus the need for standards of regulation specific for commercial speech. Regulation of commercial speech now sets down four requirements. First, the advertisement being regulated must not propagate what is false or illegal. Second, the regulation must be intended to protect a substantial governmental interest. Third, the regulation must directly advance the governmental interest. And fourth, the regulation must not be more than necessary to serve the government interest. We do not see what is covered by the briefs and the bras, so we cannot tell whether what lies behind is false. But is the advertisement illegal? There are two categories of speech which are not constitutionally protected, namely libel and obscenity. There is nothing libelous about the briefs and bras on exhibit. But are they obscene? If you measure them by the accepted legal definition of obscenity, they are far from being obscene. But there is a distant relative of obscenity which Philippine courts have used to pass judgment on certain forms of expression. The most recent decision calls it relative obscenity. Relative to what? Relative to the age level of the viewers. This is what happened in the case involving a television preacher who was found guilty of having used inappropriate language in a television program aired at a time when minors would be expected to be still awake and watching. Should this standard be used for regulating billboards? What is notable about this standard is that it recognizes that there are materials inappropriate for minors but not inappropriate for adults. That, in fact, is the standard used by the Censorship Board. Moreover, it is standard that is used for a type of expression the spread of which can conveniently be enclosed. How would you regulate ads for briefs and bras intended for adults and which commercially are meant to be spread as widely as possible? Should their effect on minors be the standard? This, in fact, is also the problem confronted by those who wish to regulate sex on the Internet. They have not succeeded in formulating a law regulating the Internet which will not deprive adults of what, in this our world, they have a right to see. Should the law then use aesthetics or beauty as standard? As the US Supreme Court said, It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. Or, as a New York court echoed, We accept beauty as a proper community objective, attainable through the use of police power. But this too is problematic. Who is to judge whether a billboard projects beauty or ugliness? In the end, it is perhaps best to leave the matter to the civic sense of advertisers and advertising agencies. G. Bernas S. J.

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Dueprocessandjudicialcompensation By: Artemio Philippine Daily Inquirer 1:05 am | Sunday, July 3rd, 2011 3share15 8 The Supreme Court, in Gamboa vs Teves (June 28, 2011) written by Justice Antonio T. Carpio, ruled that foreign investments in public utilities should be limited to 40 percent of voting shares only, not to the total outstanding capital stock that includes non-voting shares. Foreign investors not heard. Prior to this decision, the Securities and Exchange Commission has since 1935 when the Constitution was first approved uniformly held that the entire capital stock of a corporation, including voting and non-voting, shall be used in determining the 40 percent allocation to non-Filipinos. On this basis, the government has since then enticed foreigners to invest here. Relying on this representation, many foreigners invested in Philippine companies. The decision, I note, does not show that the foreigners who relied on this representation and invested here, have been summoned and asked their side. While one foreigner is mentioned in the title of the case, he has not been served with the petition or granted the opportunity to air his defense. Manuel V. Pangilinan, a Filipino, was sued in his capacity as managing director of First Pacific Co. Ltd. but First Pacific itself has not been included. Neither have the foreign chambers of commerce been impleaded. The very first section of our Bill of Rights solemnly proclaims, No person shall be deprived of life, liberty or property without due process of law. Clearly, the word person includes foreigners and corporations that would be forced to unload their investments at bargain prices. The most basic concept of due process is traced to Themistocles who cried, Strike, but hear me first! and the most oft-quoted definition of due process is traced to Daniel Webster, who referred to it as a law that hears before it condemns, proceeds upon inquiry and renders judgment only after trial. One may even agree with the Supreme Courts restriction on foreign stockholdings, but with due respect no one, not even the highest court of the land, may impose it without first hearing the persons who would be most adversely affected: in this case, the foreign investors. I will refrain from discussing the substance of the ponencia and will confine my comment, in the meantime, to the absolute need for due process without which any decision would be void. *** Adjusted judicial compensation. After four years of patient waiting, justices and judges will soon receive their increased paychecks after the Supreme Court (SC) recently approved (with some modifications) the Memorandum of Agreement, dated April 6, 2011, between the Department of Budget and Management (DBM) and the Philippine Judges Association, et al. Let me explain briefly. Effective Nov. 11, 2006, Republic Act 9227 doubled the compensation of our magistrates by granting them the Special Allowance for Justices and Judges (SAJ). Hence, if their basic pay was P20,000 per month, they got another P20,000 as SAJ. To fund the SAJ, RA 9227 authorized the SC to increase docket fees. Fully implemented during my tenure as chief justice, this pay increase was necessary to fill up the 600 vacancies (about 30 percent) in the trial courts. In many ways, these vacancies caused delays in adjudicating cases. Moreover, decent compensation, I thought, would discourage graft in the judiciary. After I retired, then President Gloria Macapagal-Arroyo twice increased, by 10 percent each time, the basic pay of all government employees. Unfortunately, the increases for judges were charged to the SAJ that they were already receiving. Worse, since they formed part of basic salaries, the increases were subjected to withholding taxes, unlike the SAJ, which was not taxable. So, instead of being increased, judicial take home pay was effectively decreased! Later, on June 17, 2009, Congress revised the Salary Standardization Law (SSL) and passed Joint Resolution No. 4 giving salary adjustments to all government employees, in four yearly tranches starting in 2009. Like the earlier 20 percent adjustment, the magistrates pay tranches were again charged to their SAJ. More problems. Under this new SC resolution dated June 7, 2011, the justices and judges will be paid, tax free, with retroactive effect from June 24, 2010, the SAJ they were receiving as of Nov. 11, 2006. Their base pay will still be sourced from the national government, but the increases will be taken from the SAJ. If the SAJ is not enough to fund the increases, the DBM will cover the deficiency. To illustrate, if, on Nov. 11, 2006, a judge had a basic monthly pay of P20,000, he was entitled to a non-taxable SAJ of P20,000 also. Under the new SC resolution, if the basic pay had been increased to P30,000, then the first P20,000 would still be sourced from the national government, while the pay increase of P10,000 would be taken from the SAJ. In addition, the original non-taxable SAJ of P20,000 will still be given from the SAJ. In short, the judge will have a base pay of P30,000 plus a SAJ of P20,000. While this solution stabilized the judges pay, it presents new problems because the SAJ will not be sufficient to cover the pay increases. Hence, rank and file employees will cease getting SAJ surpluses. Worse, the SC may be forced to increase the docket fees, to the chagrin of poor litigants. Instead of relying on the SAJ, Congress I think should fund the pay increases. After all, adjustments in other government offices are sourced from the national coffers. V. Panganiban

LiveTV ocoverage,firsttimeever -radi By: Artemio Philippine Daily Inquirer 2:07 am | Sunday, June 26th, 2011 1share21 18 Finally and at last, the Supreme Court allowed, in a resolution dated June 14, 2011, the live TV-radio coverage of a criminal case. Though subject to several conditions and though applicable pro hac vice (this time only) to the multiple murder case of Maguindanao Governor Zaldy Ampatuan Jr. et al., this resolution marks the first time that the highest court has authorized the live broadcast of a courtroom drama. V. Panganiban

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Absolute ban. In the past, the Court uniformly prohibited such media access. Thus, on Oct. 22, 1991, the Court unanimously denied the live coverage of the libel case filed by then President Cory Aquino. As authority, it cited the US Supreme Court decision in Estes v. Texas (decided by a close 5-4 vote) forbidding television cameras in criminal trials. The ban was reiterated 10 years later in a resolution, dated June 29, 2001 penned by Justice Jose C. Vitug, in the plunder case filed against President Joseph Estrada. Voting 8-6 with one justice on leave, the Court flatly denied the live TV-radio coverage of this sensational case. Later, acting on a motion for reconsideration and after Estrada offered no objections, the tribunal in a resolution dated Sept. 13, 2001, relaxed the ban and allowed cameras but only for documentary purposes, not live, real-time broadcast. The Court banned live coverage mainly because of the prejudice it poses (1) to the defendants right to due process and (2) to the fair and orderly administration of justice; while stressing, on the other hand, that the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means. My dissent. The Estrada resolution was issued when I was still a sitting justice. I joined the minority in opposing the total ban imposed by the majority of eight. My dissent explained, Everyone has a right to attend and witness a trial or hearing, especially if criminal in nature, under the constitutional principles of transparency, and of free, open and public hearing of cases. However, given the limitation of time and space in a courtroom, it is not always possible to physically accommodate all persons interested in witnessing a court hearing. Thus, I proposed the installation of a single fixed camera under the control of the court (that) could catch, live, the incidents in the trial. The audio-visual output of the camera could be flashed on big, wide TV monitors or projection screens inside and outside the courtroom. This will also enable the TV and radio crews outside the courtroom to beam the output to their respective stations for broadcasting to the public, without the ubiquitous and intimidating wiring, lights or media cameras inside the courthouse. The cameras, I added, will be placed in the rear of the courtroom and its positions shall be locked to wide-angle, so that only a stationary audience view is attained. There will be no other cameras, lights or other media equipment, which can cause nervousness or anxiety to witnesses, lawyers and other personalities directly involved in a judicial trial. Needless to state, this method will prevent editorializing or sensationalism, which the Court in 1991 feared. In this manner, there will be no unwelcome camera focusing, probing, angling, panning or other kinds of manipulation. First time ever. After another 10 years from the Estrada decision comes the present unanimous Resolution, written by Justice Conchita Carpio Morales, granting pro hac vice the live broadcast of the Ampatuan multiple murder case. The Court stressed that unlike the Aquino and Estrada cases, the Maguindanao Massacre involves the impossibility of accommodating even the parties to the casethe private complainants/families of the victims and other witnessesinside the courtroom. Said the Court, the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend and monitor the proceedings as those of the impleaded parties or trial participants not to mention that the prosecution and defense have listed more than 200 witnesses each. As they cannot all be physically accommodated in the limited space of a courthouse, technology is the only solution to satisfy the imperative of a transparent, open and public trial. To maintain decorum and to safeguard the rights of the accused from the intrusive presence of several media cameras, the Court issued several guidelines, the most important of which are (1) a single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full view of the sala of the courtroom with a limited number of microphones, (2) media companies may be interconnected with this single camera with the least physical disturbance, (3) broadcasting for a particular day must be continuous and in its entiretywith no commercial breaks except during recess without any voice over annotations shall observe the sub judice rule The third item is quite stringent. TV time is very expensive. Requiring continuous coverage in the entirety of a trial without any commercial break may be a dampener. But still and all, I welcome this resolution. It recognizes the view articulated in my dissent that it is now technologically feasible to give our people in their homes and offices the same access to trials as the spectators inside the courthouse without transgressing the rights of the accused and the dignity of the trial court.

AboutepiscopalPajeros By: Fr. Joaquin Philippine Daily Inquirer 4:49 am | Monday, July 4th, 2011 9share145 120 For the moment public attention has shifted from the RH Bill and the proposed Divorce Bill. Media attention is now on allegations made by the Philippine Charity Sweepstakes Office that the previous administration had authorized the gift of Pajeros to various church leaders. Issues of constitutionality have been raised as well as allegations of bribery to buy the support of church leaders for the past administration. What might be the problem? I will stay away from political allegations and make observations only about possible constitutional issues. Already the provision that has been cited is Article VI, Section 29(2) which says: No public money or property shall be appropriated, applied, paid or employed, directly or indirectly, for the use, benefit or support of any sect, church, denomination, sectarian institution or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. Another pertinent provision would be Article III, Section 5 which says No law shall be made respecting an establishment of religion . . . which is frequently cited as commanding separation of church and state. On the basis of these provisions the general question has been asked whether the use of public money may be authorized at all in a manner that might benefit religious persons or institutions. It is not a question that is easily answered by either a Yes or No. The answer that jurisprudence has given to the question is It depends. It depends on what? It depends on the purpose and uses of the gift. The example that immediately comes to mind is the early case of Aglipay vs Ruiz where the constitutionality of the use of government funds for the issuance of postage stamps commemorating the 33rd International Eucharistic Congress of the Catholic Church was challenged. In upholding the validity of the government action Justice Laurel wrote that while the issuance and sale of the stamps in question might be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. He said that whatever benefit might have redounded to the Church was merely incidental to a legitimate government purpose. G. Bernas S. J.

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Of a similar nature was the more recent expropriation of the birthplace of Felix Y. Manalo, the founder of the Iglesa ni Cristo, for the purpose of preserving it as a historical landmark. It was justified by saying that whatever benefit the Iglesia ni Cristo might reap from it was merely incidental to the public historical purpose. Not knowing for what purpose the bishops were gifted with Pajeros, if indeed they were, I cannot say whether the gifts were constitutionally justifiable or not. But if indeed there were such gifts and we want to find out whether they were constitutionally proper or not, are there jurisprudential norms which can be used for the purpose? There are; but I do not think we can find them in the Aglipay case or the Manalo case. I would use the norms found in decisions involving government aid to religious schools. In essence, these decisions prescribe a three-part test for determining constitutionality. First, does the grant of aid have a primary secular legislative purpose? Second, will the aid have principal effects which neither advance nor inhibit religion? Third, will the aid foster an excessive government entanglement with religion? How can we determine if the donation of Pajeros can pass this three-part test? We can only determine this by looking at the terms of the donation. We can find these from the records of the PCSO. The records will show whether the donations were for a secular purpose and whether they limited the uses to those which do not have the principal effect of advancing or inhibiting religion, and whether the needed supervision, if any, could involve excessive government entanglement with religion. If indeed the Pajeros were given primarily for a legitimate secular purpose, such for instance as relieving poverty or promoting health, we may have to look at the suitability of the Pajeros for the declared purpose. Next the people would want to know to what extent the gifts have actually been used for the declared purpose or if they have been used for other undeclared purposes such as advancing religion. And if the government attempts to verify what they are being used for, would there arise a degree of undesirable entanglement of government with religion? All told, it would seem to me that if Congress decides to conduct investigations in aid of legislation, as both the Senate and the House seem to be poised to do, things can turn out to be a very messy entanglement of state and religion. I can see that Church authorities will have to think very carefully how to handle the PCSO revelations. But I am not sure that the CBCP can command the bishops concerned what to do. Bishops answer directly to the Pope.

Command responsibility By: Fr. Joaquin Philippine Daily Inquirer 4:09 am | Monday, June 27th, 2011 G. Bernas S. J.

The people who filed a civil case seeking to hold former President Gloria Macapagal-Arroyo liable, under command responsibility, for the extrajudicial killings and disappearances during her watch must have known what chance of success they had. Military commanders have been brought to court for the same purpose, but no suit has succeeded. But this is not because we have rejected command responsibility as law but rather because of failure to establish the necessary link between the commanders and the crime. What is the doctrine of command responsibility? In its simplest terms, command responsibility means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflicts. The concept itself is not new. Sun Tzu recognized it in his sixth-century classic The Art of War, and the Holy Roman Empire applied it as early as 1474. Its more elaborate development, however, did not come until after World War II. We can perhaps begin with the case closest to our country. Gen. Tomoyuki Yamashita was the commanding general of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. He was charged with violating the laws of war. The charge stated that Yamashita, [W]hile commander of armed forces of Japan at war with the United States of America and its allies, unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the Philippines. Legal scholars and commentators who have studied the case are divided on the basis for the conviction of Yamashita. Did Yamashita have actual knowledge of the crimes or even ordered their commission? Or was he convicted on the basis of presumed constructive knowledge? There was no clear definition in the decision of what the commanders state of mind had to be in order to justify conviction. It was not until later that the doctrine of command responsibility underwent more careful development. The first important development was the codification of the doctrine in Protocol I to the Geneva Convention of 1977. Article 87 provides that parties to a conflict should require military commanders to prevent, supervise and report breaches of the Geneva Conventions and Protocol by troops and others under their command and, where appropriate, initiate disciplinary action. On the basis of the text of Protocol I the ICRC Commentary identified three conditions for command responsibility: (i) the person to be held responsible must be the superior of the person or persons committing the breach of the convention;

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(ii) the superior must have known or had information which should have enabled him to conclude that a breach was being committed or was going to be committed; and (iii) the superior did not take all feasible measures within his powers to prevent the breach. These requisites were later reflected in Article 7(3) of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) which provides as follows: The fact that any of the crimes within the jurisdiction of the [Tribunal] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. The Trial Chamber identified three elements for liability pursuant to Article 7(3): (i) the existence of a superior-subordinate relationship; (ii) that the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) that the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator. As things stand now, it is already a well-established norm of customary and conventional law that military commanders and other persons occupying positions of superior authority may be held criminally responsible for the unlawful conduct of their subordinates. Under the incorporation principle of our Constitution whereby we adopt the generally accepted principles of international law as part of the law of the land, this is now also domestic law. As much is said by former Justice Conchita Carpio Morales in a concurring opinion in a 2010 case decided by the Supreme Court. A categorical adoption of the doctrine of command responsibility, as Justice Carpio Morales said, will bring the writ of amparo cases to their logical conclusion.

DealingwiththePajeros By: Fr. Joaquin Philippine Daily Inquirer 1:22 am | Monday, July 11th, 2011 11share51 39 The first clarification that has come out is that it seems that the vehicles were not Pajeros after all. Rather they were different types of utility vehicles. Or, what were given were not vehicles at all but money for the purchase of unspecified vehicles. Nobody seems to be talking of ambulances or pick-up vehicles intended for social work. Ambulances or pick-up vehicles would be easier to explain. But whether the controversy is about vehicles or about money, both the Congress and the CBCP will be looking for answers. And even if it was all about money, the principles both the Senate and the CBCP will be looking into would be the samewas public money used for a constitutional purpose? But first, a number of preliminaries. The Senate is engaged in legislative investigation presumably in aid of legislation. Soon the House will follow. One question that might arise is whether bishops may be summoned, and not just invited, to such investigation. We know that summons have to be obeyed under pain of contempt or even imprisonment. As far as I know, however, only the President and justices of the Supreme Court may not be summoned to such investigations. The reasons generally for this exception would be separation of powers and interdepartmental courtesy between equals. It seems to me that courtesy is also being extended to bishops by the Senate Committee. They are simply being invited. I see nothing to stop them from honoring the invitation. I understand that some of them, if not all, would indeed be happy to appear and give their explanation to clear the air. I do not believe that summons under pain of punishment would be necessary. I have also been asked what the liability of bishops might be if the donations are found to be unconstitutional. I am pretty certain that there would be no criminal liability. There is no crime unless a penal law is violated. Criminal liability can only fall on PCSO officials. Whether the liability can go higher than PCSO officials will depend partly on the role played by higher officials or on the applicability or not of the principle of command responsibility. Now to more substantial matters. What will the investigators be looking for? As I wrote in an earlier piece, there is no absolute constitutional prohibition of the donation of public funds to religious persons or institutions. Public money can be made available to religious persons or institutions if the use of the money (1) will be for a secular purpose, (2) will neither primarily inhibit nor advance religion and (3) will not involve excessive government entanglement with religion. I believe, however, that the CBCP investigation and the congressional investigation will not have the same primary focus. Of course, the CBCP will be interested in legality; but another focus, perhaps more important, will be on propriety and the effect the incidents can have on the primary work of the Church. The congressional investigations for their part will avoid judgments on propriety but will be looking only into legality. Hence, it is important to look into the meaning of the three-part requirement testing the validity of the use of public funds. I must admit that except for the Aglipay case and the Manalo case, there is not much useful Philippine jurisprudence on the subject. But American jurisprudence, especially on donations to sectarian educational institutions, can offer some very useful guidelines. How does the three-part test work? Let me just give one set of examples. The lending of secular textbooks to parochial schools and the grant of construction aid for a science building to colleges have been allowed. These were seen to be clearly for a secular purpose. Of course such aid had the effect of lessening the financial burden of religious schools, but the benefit to the schools themselves was purely incidental and has not been allowed to be an obstacle to a legitimate legislative purpose. But the grant of salary supplement to teachers of secular subjects in parochial schools has been disallowed on the argument that it would be difficult to assure that the teachers would not engage in religious teaching in an atmosphere where a primary object of the school was religion. Moreover, it has been said that the need for state monitoring to insure that the aid would not be used for propagating religion has been seen as an invitation to prohibited entanglement of the state in religion. (One might now ask if the vaguely purposed PCSO donations have already had the effect of inviting legislative and Ombudsman entanglement in religion.) G. Bernas S. J.

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I must also admit that the various types of aid to sectarian schools, especially to parochial schools, have spawned various controversies and the results have not always been easy to predict. It is easier to justify donations to higher education which, even if sectarian, are not as predominantly religiondriven as parochial schools. And this perhaps is the challenge which donations to the works of the church will have to facehow to separate the religious from the secular work, if they are separable at all. The promotion of justice and of charitable works is very much an integral part of the mission of the Church today.

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