Saturday, November 26, 2011


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

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

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