Saturday, December 31, 2011

QUESTIONS FOR THE SENATE AS JURY

QUICK QUESTIONS FOR THE SENATE AS JURY
Joaquin G. Bernas, S.J.
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 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 Court’s 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 UNDERSEC. 17, ART. 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?
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 ART. VIII, SECTION 7 (3) OF THE CONSTITUTION THAT 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 flip-flop?
b. Is the Court prohibited from modifying prior decisions or doctrines?
c. When and by whom was Mrs. Corona appointed to John Hay Management Corporation? 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 greed of the League of Cities?
b. Was not the FASAP 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?

VII. 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 COURT'S OWN TRO.
a. The constitutionality of the restriction on the right to travel through DOJ Circular on HDOs is pending before the Court with the decision expected after New Year. Should the Senate preempt the SC 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?

VIII. RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED AND REFUSED TOACCOUNT 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?

Saturday, December 24, 2011

DEATH OF TRUTH COMMISSION AS ORIGINAL SIN

DEATH OF THE TRUTH COMMISSION AS ORIGINAL SIN
Joaquin G. Bernas, S.J.
Was the invalidation of the Truth Commission really the original sin of the Supreme Court which has impeded the President’s 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 speech writers and advisers may have given him the wrong signal about the impact of the court’s 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 Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. And so indeed the President’s allies would relently go after the Ombudsman and they could rely on a vast majority in House of Representatives only too ready to satisfy the President’s 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 with what the Court wanted. The Court was not asking for too much. All it was asking for was a textual expression in the law that it would not exclusively target the past administration. The Court’s desire for a clear sign of equal protection did not exclude the possibility of giving priority to what had transpired during GMA’s 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 government’s 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 Palace’s 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 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 don’t 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 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.”
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 government’s failure to succeed in its drive against corruption? It seems that it is because, in spite of the vast powers of government and its single-minded campaign to pin down Gloria Arroyo and CJ 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.
26 December 2011

Saturday, December 17, 2011

WHAT TO EXPECT IN CORONA IMPEACHMENT

It has frequently been said that the impeachment process is a numbers game where the vote is along party alignment. This has been verified historically. Partly for this reason no President of the United States or of the Philippines has been convicted on impeachment. To my knowledge, moreover, no Justice of the Supreme Court has been convicted on 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 decision. (Incidentally, as in the complaint against 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 born out by the broad claim made on television by the Chairman of the House Justice Committee that the 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 on 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 eiusdem 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 policy making 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.
19 December 2011

Saturday, December 10, 2011

Sovereignty of the People

SOVEREIGNTY OF THE PEOPLE
Joaquin G. Bernas, S.J.
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 balance.
The second is through the sovereign people’s 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 the President. 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 towards 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 fifteen 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 U.S. 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 Marx -- one 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 U.S. 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 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.
12 December 2011

Saturday, November 26, 2011

COLD NEUTRALITY F JUDGES

COLD NEUTRALITY OF JUDGES
Joaquin G. Bernas, S.J.
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 to be 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 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 Comelec-DOJ counsel. A preliminary question was whether to remand the preliminary matter to the redoubtable Judge 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 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? Is this higher law?
Indeed, what we often see, confirmed again and again, is 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 citizen’s 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 and Watch List Orders. 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 individual's 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 rights, e.g., of the rights of the accused found in Section 14 of the same Bill of Rights?
Conceivably, the DOJ restriction on GMA 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 Luke’s in the same week as GMA is back in his post in Naga but with a neck brace.) The fact alone that her condition 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 Mindanao massacre of two years ago was recalled. The clamor, especially coming from relatives of victims, was 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 Mindanao massacre? If this is what the Palace rhetoric means, it is a welcome development. Full speed ahead and damn the torpedoes!
28 November 2011

Saturday, November 12, 2011

Puzzling Over Circular 41

PUZZLING OVER DOJ CIRCULARS
Joaquin G. Bernas, S.J.
In the controversy over the right of former President 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 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 Court’s 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 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 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 individual's 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 individual’s 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 “Provide 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) Act as principal law agency of the government and as legal counsel and representative thereof, whenever so required; and (2) Investigate 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 Secretary of Justice 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 Secretary of Justice 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, pubic safety, or public health” as required by the Constitution. True, a health officer was brought into the picture, but more as 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 the President is even willing to throw in the people’s 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.
14 November 2011

Saturday, November 5, 2011

Church and the Economy

THE CHURCH AND THE ECONOMIC CRISIS
Joaquin G. Bernas, S.J.
A common notion is that the scriptural command about rendering to Caesar the things that belong to Caesar and to God what belongs to God is a command to the Church not to get involved in material things. Another way of putting this notion is that churchmen should stay in the sacristy.
It is not as simple as that and the scriptural command has never stopped the Church from venturing out of the sacristy. In fact, we have seen documents issued by Episcopal Commissions and by the Pope himself in a number of major encyclicals on social matters. You might call these extra-sacristy excursions. The fact is that the Church does not see these as excursions foreign to its mission but rather as very much integral to its mission in behalf of humanity.
The most recent of these “excursions” has come not from the Holy Father himself but from the Pontifical Council for Justice and Peace. The document is entitled “Towards reforming the international finance and monetary systems in the context of global public authority.” With this document the Church has entered into the discussions of the Group of Twenty and the International Monetary Fund.
The document has come out against the background of demonstrators in major cities protesting against corporate greed and politicians struggling to find ways of solving the world economic crisis. The demonstrations started in Wall Street in New York and have now spread to Westminster Cathedral in London and to other cities of Europe.
It has been met with mixed reaction even from the Catholic world. I myself have not read the document, which came out only a week ago. Nor am I an economist capable of evaluating its wisdom. Nevertheless, because it deals with a very important matter, let me share with my readers some of the things more financially knowledgeable people have said about it even if in a general way.
Robert Mickens of the international Catholic weekly The Tablet, for instance, first notes that “Vatican spokesman Fr Federico Lombardi cautioned reporters that the note was not a papal document nor an official policy statement of the Holy See.” Then he continues: “However, the 8,000-word text draws primarily from the writings of all the popes of the past five decades. And it cites the Blessed John XXIII and Pope Benedict XVI specifically as calling for a ‘true world political authority’ that would ‘be endowed with structures and adequate, effective mechanisms equal to its mission’. The note says such a body should have realistic structure and be set up gradually, but it also acknowledges that it will probably ‘not come about without anguish and suffering’. The document warns: ‘What is at stake is the common good of humanity and the future itself.’”
The article continues: “The document harshly criticizes ‘the inequalities and distortions’ of capitalist development based on an economic liberalism that ‘spurns rules and controls’. It says such ideologies have led to the development of some countries to the detriment of others, an injustice which – if not addressed – is ‘destined to create a climate of growing hostility and even violence, and ultimately undermine the very foundations of democratic institutions.’”
Another writer in the same Tablet, William Keegan, writes: “The report is not an anti-globalisation tract: indeed, the authors sing the praises of the way that the broader trading and overseas investment links which go by the rather tiresome term ‘globalisation’ have spread prosperity: ‘It should be reiterated that the process of globalisation with its positive aspects is at the root of the world economy’s great development in the twentieth century’.
“The problem, of course, is that ‘the ­distribution of wealth did not become fairer but in many cases worsened’. In which context it notes that way back in 1967 Pope Paul VI, in his encyclical letter Populorum Progressio, ‘clearly and prophetically denounced the dangers of an economic development conceived in liberalist terms because of its harmful consequences for world equilibrium and peace’.
“The commonly accepted term for the extreme free-market doctrines that have contributed to the financial crisis is ‘neo-liberalism’. This is often a cipher for what the Pontifical Council calls ‘an economic liberalism that spurns rules and controls’. They argue that the dogma ‘runs the risk of becoming an instrument subordinated to the interests of the countries that effectively enjoy a position of economic and financial advantage’. The interesting thing is that the economic liberalism of recent years has not proved to be in the interest of many people in the countries that are supposed to have benefited either. It is the very rich, not least the more ruthless bankers, who have won the prizes of neo-liberalism.”
How have others reacted to it? The American Catholic, a publication which purports to write on politics and culture from a Catholic perspective, sums up other Catholic reactions into two contrasting views: first, the world would be a better place if people followed what the Church teaches; second, I am a Catholic who can think for myself and don’t have to follow what some old white men in Rome think.
I am certain that more will be written about it in the coming months. I am hoping that local economists will take a look at it and tell us what they think about the concrete things it is asking for in the context of the local financial economy.
7 November 2011

Saturday, October 29, 2011

GMA'S RIGHT TO TRAVEL

GMA AND THE RIGHT TO TRAVEL
Joaquin G. Bernas, S.J.
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 i987 constitutions. The “watch list order” issued by the Secretary of Justice must be measured against the present status of the current constitutional provision
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 of a court 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 officer's 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 pauper’s 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 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 GMA be a threat to "national security, public safety, or public health.” Second, by what statutory authority is the Secretary of Justice 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, process 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 the former President’s 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 Secretary of Justice making such claim even if the President himself has been quoted as saying that he has no objection to the foreign travel of GMA?
31 October 2011

Saturday, October 22, 2011

ARMM Elections

THE UNFINISHED BUSINESS OF ARMM ELECTIONS
Joaquin G. Bernas, S.J.
The Supreme Court , last Tuesday, came out with a decision on what to do with the R.A. 10153 calling for synchronization of ARMM local elections with the 2013 elections. R.A. 10153 had said that, after the expiration of the term on September 30, 2011 of the elected regional elections, no elections should be held until May 2013. Since that would leave the elective positions vacant, R.A. 10153 authorized the President to fill them by appointment of temporary officers. Expectedly, petitions for the nullification of R.A. 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 in the Internet.
First, there is the issue of synchronization. It seems clear from SC spokesperson 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 national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM 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 ARRM. It is argued that the absence of synchronization in ARRM 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 R.A. 10153 is not an amendment to the Organic Act. The OA did not set the date for regional elections. True, R.A. 9054 had a date for elections, but it was a date for the first election and not for regular elections. The date set by R.A. 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 vacancies left by the expiration of the term of elected officials last September 30. It is not a clean split. How break it down?
8 justices say that the President should fill the vacancies by appointment. They oppose 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 President’s 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. R.A. 10153 gives the power to the President.
2 Justices, however, would recognize only a power of the President to appoint a Governor and would call on the Comelec 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 whether or how these vacancies or to be filled. I do not see how the Comelec can set an election date different from the date already set by R.A. 10153. The Comelec’s power is only to enforce the law.
I have not seen a written opinion of the rest of the justices led by the Chief. I understand, however, from the statement of the SC spokesperson that they see no virtue at all in R.A. 10153 except for the call for synchronization. They do not recognize the President’s 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 R.A. 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 majority – even 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 only 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.
24 October 2011

Saturday, October 15, 2011

FREEDOM OF INFORMATION

FREEDOM OF INFORMATION
Joaquin G. Bernas, S.J.
With the debate going on now 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, however, 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.
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 orgitnal 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 therefor was not a self-executory provision. It needed statutory implementaion. 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 “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 an 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.
17 October 2011

Saturday, October 1, 2011

FISCAL AUTONOMY

The controversy between the Supreme Court and the Budget Office over the unused appropriations for the judiciary is about fiscal autonomy. Fiscal autonomy is a guarantee given by the Constitution to certain units of the government. It is intended as a guarantee of separation of powers and of independence from political agencies. The units that have been given fiscal autonomy are the Constitutional Commissions, the Ombudsman and the judiciary. The language used in the grant of the guarantee is almost identical for all three units. The Supreme Court jealously guards fiscal autonomy.
The guarantee for the Constitutional Commissions says, “The Commission shall enjoy fiscal autonomy. Their approved annual appropriations shall be automatically and regularly released.” For the Ombudsman it says, “The Office of the Ombudsman shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.” The provision for the judiciary has an addition not found in the other two: “The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.”
There is a similar provision for local governments although the phrase fiscal autonomy is not used. It says: “Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” The Supreme Court has had the opportunity to explain the meaning of the phrase “automatically and regularly released.” When President Ramos issued an executive order saying that“Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld,” this was challenged as an unconstitutional restriction on local autonomy.
The Supreme Court ruled: “Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means ‘something held back or withheld, often temporarily.’ Hence, the ‘temporary’ nature of the retention by the national government does not matter. Any retention is prohibited.”
The phrase “automatically and regularly released” was also a subject of contention between the Civil Service Commission and the Budget Secretary. The controversy involved the “no report, no release” policy imposed by the Budget Office on funds appropriated for the Civil Service Commission.
In resolving the issue the Court harked back to an earlier decision on the meaning of “automatic release” for local government units relying on the dictionary meaning of “automatic.” “Webster’s Third New International Dictionary defines ‘automatic’ as ‘involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.’ Further, the word ‘automatically’ is defined as ‘in an automatic manner: without thought or conscious intention.’ Being ‘automatic,’ thus, connotes something mechanical, spontaneous and perfunctory. As such the LGUs are not required to perform any act to receive the ‘just share’ accruing to them from the national coffers. x x x”
The Court concluded: “By parity of construction, ‘automatic release’ of approved annual appropriations to petitioner, a constitutional commission which is vested with fiscal autonomy, should thus be construed to mean that no condition to fund releases to it may be imposed.”
The Budget Commission tried to wiggle out of its predicament claiming that the “no report, no release” was due to a shortfall in revenues. The Court said that such shortfall does not justify compliance with the Constitution and that “[a]n interpretation should, if possible, be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative, or nugatory.”
Having said all that, one might ask how the current controversy on unspent funds of the judiciary will be resolved. I anticipate that the resolution will be along the lines of a 1993 Supreme Court Resolution on the judiciary’s fiscal autonomy. The Resolution says: “The Supreme Court may submit to the Department of Budget and Management reports of operation and income, current plantilla of personnel, work and financial plans and similar reports only for recording purposes. The submission thereof concerning funds previously released shall not be a condition precedent for subsequent fund releases.”
Related to all this, of course, is the issue of impoundment, that is, the holding unspent of appropriated funds. It is something done by Presidents as a form of “executive veto.” It was first used by Thomas Jefferson. There is no provision in the Constitution on the subject. The concept has come up in local jurisprudence but the Supreme Court has heretofore refrained from passing judgment on its constitutionality.
Finally, like it or not, the Constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. We know who will referee the controversy between the Supreme Court and the Budget Office.
3 October 2011

Saturday, September 24, 2011

WHEN IS FAMILY PLANNING ANTI-LIFE

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 the children that are brought into this world.
In the current debate brought about by the introduction of the RH 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 phrase 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 persons as being anti-life. They love life so much that they take it upon themselves to contribute in some way or other 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 says 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.
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 devises that only prevents 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, is abortion 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 prohibits and penalizes 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 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 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.
26 September 2011

Saturday, September 17, 2011

THE LONG ROAD TO THE ICC

The Statute for the International Court will enter into force in the Philippines on 1 November 2011, three months after the Philippine government deposited its instrument of ratification to the Rome Statute of the International Court (ICC). We actually are one of the later joiners.
The ICC treaty itself was born on 17 July 1998 when 120 states adopted the Rome Statute as the basis for establishing a permanent International Criminal Court. It was a historic milestone. The Statute entered into force after 60 countries ratified it on July 1, 2002. The Philippines is the 117th to ratify.
The road to the formation of the Statute had a much earlier start. As early as 1950s it was already considered in the UN. 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 international criminal court 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 International criminal Court, 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 International Criminal Court. In fact it is very parochial in scope. It is a 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 entitled “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 Ordinance’s Section 1. My impression, however, is that the terms of Section 1 will effectively exclude all foreigners, except for foreigners who have owned lots in the baranggay prior to the 1935 Constitution. I doubt that there are any such. 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 ordinance and whether it will suffer the same fate as the earlier ordinance on contraception.
19 September 2011

Saturday, September 10, 2011

FORGIVENESS & SUNDAY SERMONS

9/11 Remembered. Yesterday Americans celebrated the tenth anniversary of the terrorist attack that brought down two New York towers and killed hundreds of civilians. One can find in YouTube quite a number of videos depicting the event from different angles. Reflections on the event can also be found in various media outlets. Meanwhile the United States government has issued warnings that more terrorist attacks could be coming.
The reactions of those directly affected by the event have been very varied. Some still harbor anger and resentment against the faceless perpetrators of the crime and often focus their resentment indiscriminately against Muslims in general. Others have learned to forgive, even if they cannot forget, and they warn against generalizing judgment bout Muslims.
There is a widely reviewed PBS video entitled “Forgiveness: A time to Love and a Time to Hate.” (http://www.pbs.org/programs/forgiveness/) It is an exploration of various stories ranging “from the Amish families for the 2006 shooting of their children in Nickel Mines, Pennsylvania; the struggle of '60s radicals to cope with the serious consequences of their violent acts of protest; the shattering of a family after the mother abandons them, only to return seeking forgiveness; the legacy and divisiveness of apartheid and the aftermath of the Truth and Reconciliation Commission hearings in South Africa; the penitential journey of a modern-day Germany, confronting the horrific acts of the Holocaust; and the riveting stories of survivors of the unimaginably, brutal Rwandan genocide.”
A Jesuit writer who was about to review the video was warned by another Jesuit who said: “Don’t be like so many religious voices who urge reconciliation at the drop of a hat, often enough before they have even acknowledged any real and painful conflict!” A reviewer also wrote: “Once a uniquely religious word, forgiveness now is changing and there is no consensus about what it is and what it is becoming. However you define forgiveness, its power is real — and never more so when it struggles with the unforgivable. Inevitably, as Whitney reveals [in the PBS video], its new role in the world raises serious and complex questions: why is forgiveness in the air today; what does that say about us and the times we live in; what are its power, its limitations and in some instances its dangers; has it been cheapened or deepened... or both?”
I have never experienced being a victim of an atrocious offense myself. Hence, I cannot really say from experience what it means to be willing to forgive and how capable I am of forgiving. In the gospel reading for yesterday, Peter asked Our Lord whether one must be willing to forgive seven times. We might say that Peter was already being overly generous. But Our Lord corrected him saying seventy times seven times. Of course we know that Jesus would later say from the Cross, “Father, forgive them for they know not what they do.”
I can only pray that, if ever I should be confronted with a challenge similar to those recounted in the PBS video, I will have at least the seven-time generosity of Peter.
About Sunday Sermons. In talking with friends I often hear complaints about the quality and length of Sunday sermons. I smile when I recall that when I was a kid, my father, who was a town physician, would walk out of the church after the gospel to visit his patients and still be back for the Credo! I did not complain then because at that time, when I reached a certain age, my mother did not object to my walking out to talk with friends during the sermon. I guess that was part of how I got my vocation to the priesthood!
Recently I came across an article which can keep doctors from walking out to visit their patients during the sermon. Let me share it with fellow priests. I quote:
“Eight minutes, tops. That is how long an average Sunday sermon should last, according to the Rev. Roy Shelly of the Loyola Institute for Ministry in New Orleans. On weekdays, sermons should be even shorter: three to five minutes. The goal is not to shorten the liturgy, as some restless pew sitters may wish, but to be succinct and stay on point. It is much more difficult to speak for eight minutes, Shelly says, than to preach for 20. In the words of Archbishop Fulton Sheen: ‘If you want me to speak for an hour, I’m ready. If you want me to speak for 10 minutes, I’ll need a week.’
“In workshops with preachers, Father Shelly employs a neat teaching tool. First he asks the preacher to summarize his message in one sentence. After the sermon is delivered, parishioners are asked to write down a one-sentence summary of what they heard. These are collected and reviewed later by the preacher.
“In addition to brevity, preachers should be persuaded to stay focused on the week’s readings. Avoid using the pulpit to speak about service trips or the March for Life. There are other times and places to address such subjects. Well prepared, Scripturally grounded sermons are essential to a good liturgy. They could both satisfy a spiritual thirst and bring disaffected Catholics back to the pews.”
Good luck!
12 September 2011

Saturday, August 27, 2011

THE SUBSTATE DREAM


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 to 7, it actually contained more agreement than what the vote indicated. Aside from the ninety-page main opinion, there were eleven 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. 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 President’s oath binds the President not just to “preserve and defend” the Constitution but also to “do justice to every man.”
What the President did when he met with Chairman Murad 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 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 three-fourths 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 current 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.
29 August 2011



Saturday, August 20, 2011

ART & THE RIGHT NOT TO SPEAKK


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 authors 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 No. 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 that it is perhaps for this reason that 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.
22 August 2011




Saturday, August 13, 2011

CCP WOES & SUBSTATE DREAM


THE CCP WOES & THE SUBSTATE DREAM
Joaquin G. Bernas, S.J.
Not that the two topics are inextricably linked. Nor are they the topics being discussed by the same group of people. But they are both worth our attention.
The CCP Woes. I begin with the woes bought upon the administrators of the Cultural Center of the Philippines. As is well known, the CCP was created through Executive Order No. 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).”
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.
The question I would ask is whether the CCP 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?
What is expressly guaranteed by the Constitution is the freedom of speech or expression. It includes the freedom to choose what to speak or express. But it does not exclude the freedom not to speak. The freedom not to speak is pure common sense that it is perhaps for this reason that 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.” 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 the CCP does not accept are free to exhibit their work elsewhere. The issue is not freedom of speech but freedom not to speak.
The Sub-state Dream. 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 to 7, it actually contained more unanimity than what the vote indicated. Aside from the ninety-page main opinion, there are eleven other pieces some concurring and others dissenting. Going through them one will find that there really is 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. 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 President’s oath binds the President not just to “preserve and defend” the Constitution but also to “do justice to every man.”
What the President did when he met with Chairman Murad 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 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?
15 August 2011




Saturday, August 6, 2011

QUESTIONS FROM A RESIGNATION

We all know now that, for the first time in Philippine history, a senator, Miguel Zubiri, resigned from the Senate. 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 the 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 a president-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 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 term – 2013 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 on 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 official’s 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 Zubiri’s resignation might get a definitive answer or clarification should constitutional amendment finally take place.
8 August 2011

Saturday, July 30, 2011

THE UNLAMENTED DEATH OF THE TRUTH COMISSION

When the report on the final death knell on the Truth Commission was announced by the Supreme Court, there was no lamentation in the Palace. Secretary 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 No. 1 creating the Truth Commission, after all, was the obvious Palace perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, 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 Executive Order to make it conform with the demands of constitutionality. The cardinal sin of the executive order was that in the Court’s 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 government’s motion for reconsideration was filed half-heartedly. 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 Palace’s 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 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 of his administration’s 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 in fact, 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.
1 August 2011