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 31, 2011
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
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
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
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
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
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
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
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