Red's Herring

SC review imperils Mindanao peace process

2008-08-18T12:49:00.006-04:00

(This entry has been originally posted in FilipinoVoices. I’m reposting the piece here while FV is inaccessible.)

The future State of Bicol per Senate Joint Resolution No.10 (SR 10) will have greater powers than the Bangsamoro Juridical Entity proposed in the MoA-AD (the Memorandum of Agreement on Ancestral Domain between the Government of the Philippines and the Moro Islamic Liberation Front, now under scrutiny by the Philippine Supreme Court.)

The senate resolution, to begin with, expressly permits Bicol, subject to certain conditions, to secede or dismember itself from the Federal Republic contemplated in the senate scheme. Additionally, under the same initiative that was introduced by 12 senators in April 2008, Bicol, as well as 10 other proposed states, will possess, among other powers, the following: 1) Exercise powers the Federal government shall not exercise because they are reserved to the individual states; 2) Enter into trade relations with other countries; 3) Grant reprieves, commutations and pardons, remit fines and forfeitures concerning crimes committed against state legislations; 4) Enact laws relative to agriculture, agricultural lands, flora and fauna, mines, mineral resources, gas, gas-works, water, water supplies and water power; 5) Establish courts for the governance of its indigenous populations; 6) Organize and maintain civilian police forces, local prisons and reformatories; 7) Create autonomous regions consisting of provinces, cities, municipalities, and geographical areas or alter the same and be responsible for the defense and security of those regions; 8) Pursue local development in the utilization of mineral, marine and aquatic, forest and other natural resources; 9) Engage in local and international trade and commerce to attain self sufficiency and progress; and 10) Incur foreign loans to fund state or local government projects.

The main justification given in the “whereas” clauses for the move to transform the present unitary arrangement into a federal system allowing these awesome grant of powers to the states: the “lopsided arrangement has spawned a host of problems including massive nationwide poverty to runaway insurgencies and rebellions that feed on the societal inequalities in the nation.”

Still, some people are claiming the SR 10 is “crappy,” although thus far no one is publicly claiming that the 12 senators who introduced the resolution had conspired to commit culpable violation of the Constitution or treasonous acts. The reason, arguably, is simple: congress, of which the senate is a part, is expressly authorized by the Constitution to initiate whether inconsiderable or radical constitutional reforms of the present setup. So therefore, while SR 10 is blatantly ultra constitutional (to repeat, the resolution allows any region proposed therein to be organized as a sovereign state and secede from the republic), it is not unconstitutional. Moreover, at this stage of the senate-initiated constitutional reordering, the action of the senators is essentially political and therefore beyond the pale of judicial review.

By comparison, what is the basis of the presidential power to wage war, conclude peace or make treaties or executive agreements? Basically, it is the president’s power as commander in chief of the military.

Now, while the president shares with the senate the power to make treatise or international agreement, she (or her alter egos) alone negotiates or adopts bargaining inducements, devices or strategies that may lead to a final compact of peace.

Decades of armed conflict in Mindanao have already cost more than a hundred thousands human lives and the dislocation of more than a million. In the political give and take of the delicate and complicated Mindanao peace process, the president, and none other, is supposed to be the “sole organ” to do the communicating and negotiating and as such may rely on a large reservoir of inherent and extra-constitutional powers of the executive to serve the public interest. In so doing, she may pursue political pragmatism or go as far as push the constitutional envelope (for example, ignore Philippine claim of Sabah for peaceful co-existence and trade relations with Malaysia, or, as in the instant controversy, sit in the peace table and negotiate with armed rebel group MILF to prevent further bloodletting among brothers and pave the way for national economic progress).

In certain extraordinary situations, the president may in fact employ the classic Lockean prerogative “to act according to discretion for the public good, without the prescription of law or sometimes against it.” (Emphasis mine)

These only mean that, as in the matter of the MoA-AD that has generated raging nationwide discourse and public anxiety, even the senate (the president’s treaty-making partner under the Constitution) cannot meddle with this (negotiation) aspect of treaty making or of forging executive agreement in the same way that the court cannot interfere with the decision of congress or the senate to introduce ultra constitutional resolution it deems appropriate to institute structural or systemic change in governance.

Let me ask this question again: If we grant that the SC can prevent a peace negotiation via a temporary or permanent injunction to forestall a perceived dismemberment of the national territory, doesn’t it follow that, if the president dillydallies, the court can also order her to recover a lost ground or territory, inflict punitive action or conduct an all-out war to win peace?

The legal answer to the foregoing challenge is almost commonsensical: while the political branches of the government and the people directly may pursue political acts and decisions ultra-constitutionally, an unaccountable judiciary is always constrained to act within the constitutional box. It has to be so since in so far as the court is concerned, the Constitution is a read-only document notwithstanding judicial indulgence at times in “creative jurisprudence” (e.g., the invention of “substantive due process” by the US Supreme Court to protect corporate rights or of “constructive resignation” by the Philippine Supreme Court in the case of President Estrada’s ouster through People Power II, to pave the way for intra-constitutional succession of governmental powers). However, even in “judicial activism,” the court is weighed upon by the very nature of its constitutional obligation to always anchor or fasten its reading of the Constitution strictly to the existing constitutional framework.

Beyond legalism, there are pragmatic reasons why the classic view that executive power is restricted to enforcing the law and that the judiciary may oversee such enforcement does not apply when it comes to military (and foreign) affairs: 1) the need for secrecy, and 2) the president has access to information that may not be available to the judiciary (or congress) such as conditions and political dynamics on the ground or details in operations that cannot be shared without jeopardizing those operations. In these areas, the political judgment of the executive may not be replaced by judicial discretion, the president being accountable only to the public as a whole.

It is therefore blatantly irregular for the judiciary (the supposedly apolitical, publicly unaccountable and the least informed of the three branches of the government) to step in at the crucial negotiation stage for the Mindanao peace settlement or, in the guise of judicial review, actively participate in such a decidedly political matter by constraining the President, temporarily or permanently.

If the public offers stiff resistance to the MoA-AD and forces the president to scrap it, so be it. The SC however may not arrogate the same prerogative without violating the Constitution or needlessly imperiling the Mindanao peace process.

GMA lost her luster but is she a spent force?

2008-07-31T00:29:00.006-04:00

Gloria Macapagal-Arroyo (GMA) might have been swept to power by radical means but she has proven since day one to be a dyed-in-the-wool incrementalist unwilling to be a transformation agent. And quite unmistakably, if her last State of the Nation Address (SONA) is any indication, she has clung to her brand through the difficult endgame of her political career.

There were, of course, moments of Marcosian delusions as in the SONA 2005 when she painted a picture of a Philippine economy "poised for take off" or delivered the royal punch line of SONA 2007: "From where I sit, I can tell you, a President is always as strong as she wants to be." Today, imagine a diminutive Arroyo brandishing VAT in SONA 2008 as her giant accomplishment, or badge of victory, and still got 104 times of applause while a great mass of the Filipino people is either going hungry or raring to jump the ship of state at the slightest prospect.

But, the true state of the nation based on official government data, according to Dr. Ceilito Habito, former Socio-Economic Planning secretary, shows "declining school enrollment rates, more school dropouts, rising hunger, worsening health, declining peace and order, diminishing hope for the future, and more."

Backtracking momentarily will remind us that within days of the triumphant EDSA II rebellion, GMA did not equivocate to temper the mode of the time by putting everyone on notice that her "administration will resist the temptation to take adventurist initiatives and directions for the sake of appearing to be innovative."

During the formative period of the Arroyo presidency, then still ardently contested by Joseph "Erap" Estrada, the rogue kingpin ousted from Malacañang by EDSA II, she's stuck to her billing quite openly although rather coyly: "I have no grandiose ambition of being great," she pleaded. "I just want to do my work well. I don't want magic. I just want to be 100 percent right - morally right."

The convent-bred reluctant rebel has however lost her La Aunor luster and the "progressives" of the EDSA II coalition, whom she co-opted, when they realized she could neither have, indeed, the audacity to aspire as a charismatic political magician (who could bring about a sea change and make the big and tough decisions to whisk away the long-standing malaise facing the Filipino people) nor the plain moral ascendancy to govern. She naively mislaid the first one by intentional default; the other, by some buried character flaw she preferred to characterize as "lapse in judgment."

If we draw a boxing analogy, the Filipino people, while seemingly magnanimous, if not simply oblivious, of the no-magic rope-a-dope of GMA, have seen for the most part the "Hello, Garci" scandal as a mortal blow sending her flat to the canvas up to the eighth count and, because only of a biased referee obdurately adhering to sheer technicality, she was saved by the bell. Since then, she's been on the survival mode in the remaining few rounds. And as the dramatics of SONA 2008 indicates, she seems tiring but comfortably backpedaling and dancing around although no one is really actively pursuing her in the ring.

The probing questions then are:

Why has Gloria Macapagal-Arroyo gone the distance delivering her eighth SONA and not her defense (while in the dock for various misconducts in office and breaches of public trust that make Erap, her convicted predecessor, look like a petty plunderer)?

Is Arroyo really a spent force or in fact the force to be reckoned with, the sought-after "golden girl" in yet another mega bout?

She may not be a magician, but what is the secret formula of her staying power?

A Ces-pool of Lamitan

2008-06-14T10:08:00.009-04:00

Some profit from war or from a permanent state of war materially or ideologically.

For instance, post WW I several investigations in the US Congress were conducted in connection with the charge in a series of publications that certain bankers and merchants encouraged the US to get involved in the war so that they could make money or protect interests in loans and weapon sales to England and France.

Only recently, former White House press secretary Scott McClellan has rebuked the Bush administration in his best selling memoir What Happened: Inside the Bush White House and Washington’s Culture of Deception for using propaganda to mislead the American public and sell the Iraq War. That the war is otherwise “unnecessary” according to McClellan but for the “grandiose objective of reshaping the Middle East as a region of peaceful democracies” is no surprise to many. What seems new in McClellan’s tell-all is the claim that the (liberal) media has been easy on Bush’s decision to go to war in Iraq “that pushed (his) presidency off course.”

As an early critic of the Iraq War, I have pointed out in a commentary that the Philippine media had a better reason to gag itself on the follies of Marcos than the US media on the failings of Bush:

During the second Gulf war, dubbed as “Operation Iraqi Freedom,” CNN repeatedly maligned the UN as a “talk shop,” echoing President George W. Bush’s own belittlement of the UN as “irrelevant” or “a mere debating society” even as Bush used Iraq’s alleged violations of UN resolutions as the fig leaf for the “coalition of the willing” to invade Iraq, thus the perception that the “embedded” media censored itself out of servility; on the other hand, during Marcos martial law, the tyrant simply coerced the Philippine media into muzzling itself or into extolling what Marcos wanted the Filipinos to believe about the Bagong Lipunan (The New Society).

But during President Estrada’s all-out war in Mindanao, University of the Philippines journalism professor Luis Teodoro scored Manila broadsheets for failing to provide the “contextual information” for the public to understand the Mindanao crisis, a problem that could have been exacerbated by news reports and comments “(fomenting) anti Muslim prejudices through hate articles.”

Remember Lamitan?

At mlq3’s blog, I have recalled the Lamitan fiasco (in connection with the July 2007 ambush in Basilan of a military convoy where reportedly 14 Marines looking for kidnapped Italian priest Giancarlo Bossi were killed, 10 of them beheaded) in the following:

Helsingin Sanomat and The Boston Globe produced a joint report showing that both the Philippine military and government have been involved in a cover-up over Lamitan incident that took place in June 2001. The tragedy, a web of collusion between the AFP, Abu Sayyaf, local warlord and blood money, claimed several innocent lives.

At that time the question raised was whether the AFP is even interested in getting rid of the Abu Sayyaf Group.

Eye-witnesses to the incident have recounted that ASG leaders managed to escape from the Lamitan siege by fleeing to safety from a high-walled hospital complex that was surrounded by AFP units.

Hours after the “Great Escape,” the AFP launched an attack on the complex, with only civilians inside.

A ransom of 25 million pesos was paid to secure the release of hostage Reghis Romero II and two others. According to a friend of Romero and a catholic priest, the money was split among the ASG, the military and some politicians.

Pedro, a commenter at mlq3’s site, was similarly blistering in his response to my above post:

There was a question that was asked back then, asking why US military and humanitarian assistance always come in the form of equipment and expertise instead of funding or cash. Of course the question was answered in a politically correct way so as not to offend, but everybody in the US side including the local audience knew what really was the answer. A little bird told me that ransom payments between Abu Sayyaf and the AFP during combat patrols become hard to pull off when armed US visitors are tagging along (out of shame I suppose). Information has been coming out about AFP military hardware and ammunition being sold to various groups.

Now, of late, the decibel of the Mindanao conflict, raging on and off since 1978, has reached new levels as peace negotiators from Manila and the 12,000-strong Moro Islamic Liberation Front have expressed fears about the possible collapse of a five-year old ceasefire. The apprehension is about the expiration by the end of August this year of the mandate of the International Monitoring Team (IMT) to oversee the ceasefire. The IMT is made up of foreign facilitators that have been monitoring the peace talks since 2003 when it was signed. The team is also supposed to administer the final peace agreement if forged.

The greater part of the IMT representations is from Malaysia. The Malaysian contingent has however announced its intention to withdraw from the multilateral team apparently because of disappointment with the slow progress of the peace process. What’s bogging down the negotiation is the lack of consensus on the definition of “ancestral domain” that will affect the control of areas in southern Philippines by the Muslim group as well as the operational conception of the Bangsamoro. The trust level among the parties has taken another low when the Manila representatives have indicated supposedly being hamstrung by certain requirements under the Philippine constitution in addressing these contentious issues.

Is the media interested this time to know and inform the public whose intransigence it is that’s making the road to final peace bumpy?

“Despite the injuries, fatalities and damages done to private citizens, property, and business, the never ending cycle of ceasefires/peace talks and resuming military action has always been the norm,” Pedro has wryly concluded in our exchange.

Bear in mind again that the Senate inquiries into the Lamitan disaster have found “strong circumstantial evidence” of collusion between the AFP and the Abu Sayyaf Group. Now, about the kidnapping of the ABS-CBN news team led by TV anchor Ces Drilon (and Mindanao State University professor and peace advocate Octavio Dinampo), there’s unsettling report in Inquirer.net that looks like Lamitan redux:

The hired driver of television reporter Ces Drilon and her crew has claimed to police that a known “military agent” and not members of the Abu Sayyaf extremist group abducted the ABS-CBN team, the Sulu police chief said . . . .

Meanwhile, Manolo Quezon’s raves on the news embargo requested by Drilon’s employer, which the government has broken, are equally chilling: “Which makes the illogical behavior of the government logical only if you assume (as I do) that there are hawks in the administration happy over any mayhem in Mindanao.”

Dosen’t this post-release recollection by Arlene de la Cruz, another journalist kidnapped in January 2002, offer precious insights?

In the next few days, they kept asking me about the ransom. The torment only subsided when they turned me over to another group around the first week of February.

The uneasy calm allowed for some conversation between me and a man named Lakandula, one of their leaders.

“When will you, reporters, stop writing stories about the fighting in Sulu? Is that all what you reporters are after?” Lakandula then wondered aloud. “You write your report and that’s it. It’s all just work for you. Is that it? Just another ‘scoop’ from Sulu?”

I remember the two of us having this exchange inside a hut, and outside we could see a group of women passing by.

“Do you see those women, their children? Every day they have to walk for several kilometers to draw water from the river. Why? Because they don’t have a source of water near their homes . . .

“Haven’t you thought of how you can help them?”

In an op-ed piece of mine that was published by Inq7.net on June 15, 2001, I believe to be in the same state of mind as Arlene’s (in recounting her conversation with Lakandula):

Peace is achievable in Mindanao if there is a collective change of attitudes of all the parties concerned. First of all, total victory by either side is impossible. If it were, the war would have been won or lost long, long time ago.

I personally perceive an institutionalized culture of bias by the Christian majority, whether in the region or in imperial Manila, against the Muslim minority. The attitude seems rooted in basic human relations.

Now that the peace process is being reinitiated, the Philippine government must come to the peace table with the full realization that it cannot win an ethnic war against the Moros. On the other hand, the Moros must recognize that it cannot win a war of secession against the Philippine government. Not in our lifetime.

‘Philippines has much to teach the world’

2008-05-11T23:34:00.006-04:00

The relevant exchange in FilipinoVoices runs thus:

ANTHONY: I think the difficulty here is that when you scratch beneath the surface, you find that the concept of a nation as a distinct and unique collective is artificial.

After all, the rise of the Nation State came hand-in-hand with the rise of industrialisation and capitalism. It was the mechanism to create artificial bonds between disparate ethnic groups, giving them a shared sense of identity. This collectivisation happened to be most efficient way of mobilising enough people to create wealth during the industrial age.

ABE: I agree that the state is neither universal nor natural, but an ideological construct for the most part; what’s even more apparent is that the power that has personified (or fabricated) the state is the same power that is attempting to demystify, delegitimize or deconstruct it, again, as you said, in the service of wealth. Now, would it help the disempowered individual to resist the reverse process? If not, why should the individual simply go with the flow (or get equipped for the paradigm shift, if you will)?

ANTHONY: For centuries, we have learned to equate culture and identity with the Nation. Now, in a world of the multinational corporation and supranationalism, we’re forced to reassess what this means. As Chuck’s post displays, people still draw comfort in the permanence of their Nation. In reality, Nation States are struggling to remain relevant as their powers are being rapidly eroded by global corporations and supranational bodies. For example, just last month European Union laws drafted in Brussels affected how loud traditional bagpipes can be played in Scotland.

Abe asks if the disempowered individual should resist. We cannot. There are such huge forces in play that resisting will only lead to the annihilation of one’s values. What we must do, as all successful cultures have done, is adapt. In nature, the species that resists environmental change becomes extinct; cultures are no different.

However, culture and traditions cross national boundaries; they transcend the Nation State and need not die with it. Ironically for the Philippines, our disadvantages and failures as a nation has given us a head-start in this new landscape. The Filipino ‘OFW global workforce’ is a sign of things to come as more people leave their countries in search for jobs. The Philippines has much to teach the world about this new style of living.

We must also learn quickly to capitalise on this ‘first mover advantage’. While we spend our time with insular bickering about governmental failures, others are catching up. To put things in context, approximately 90k to 100k Filipinos have settled in the UK over the last three decades. During that time, we have stayed largely underground, our groups mirroring the same divisive squabbling as can be seen in the Philippines. On the other hand, in the 5 years since Poland’s accession to the European Union, around 1 million Poles have moved to the UK. They are making their presence felt and once again Filipinos risk being relegated as insignificant.

What in effect I am postulating is that both nation-state and a “world of the multinational corporation and supranationalism” are not something given, but constructed by those with the power to do so for a reason and therefore the concept (or process) could be deconstructed or reconstructed also for a reason either by the self-same power to further their interests or by those whose ends are not thereby served or in fact jeopardized in the wake of it.

On the juristic (legal) level, a parallel could be drawn between the conception of the state and that of the (private) corporation, an artificial being no less bestowed by law with certain attributes of a person than a state personified by being invested with a mind and a will of its own. So, if the legal rationale fades out or lapses (e.g., the law is abrogated), what actually break the surface are real people socially relating to each other, or working and collaborating together (and I agree with BenignO that they may not be forged as one identity by some hollow symbolisms like Manny Pacquiao; commonality of purpose may be enough).

The artificial entity, it is well to note, is not just legitimized by a statute or by some agreed upon international legal arrangement, it is also reinforced by a belief system. If we look back at history, the myth of the territorialized nation-state has supplanted another myth, the open and frontier-less kingdom of the absolute monarch. The belief system then was that the king was supposed to have unchallenged authority (sovereignty) because his power was derived directly from God. The Devine Right of Kings was however undone when the struggle for parliamentary democracy was won by once disempowered individuals.

It needs to be underscored too that while we are certain the tectonic transformation of the global village is happening, its consequences are still very problematic. For one, are the winners so far outnumbering the losers? What are the negatives in terms of plain ethics: Does supranationalism value life the same way irrespective of nationalities? Or, supranationalism notwithstanding, to what extent the interests of “our” nationals should be promoted or protected at the expense of “their” nationals? How serious is the concern at this point to reconsider the locus, indivisibility or indispensability of sovereignty, or, just like Divine Right of Kings, consign it to oblivion (forget about it)?

The question then is not that “we cannot” resist as inevitable the paradigm shift but more appropriately whether we are unwilling or not to exercise the choice to tame or undo it. For if there is emerging a so-called “network of Empire” (of powerful nation-states in combination with supranational institutions and transnational corporations) poised to rule over a new global order, there is also a “movement of peoples” that is materializing as a countervailing force. In the Philippines, we also call the latter phenomenon as People Power.

Come to think of it, if the Blacks in the United States, together with certain enlightened members of the White establishment, dared not struggle to end slavery and the slave economy but simply gave in to “adapting” to their realities, will there be a Barack Obama today?

Please don’t get me wrong, though. An older commentary below about our town in Bikol, a portion of an op-ed piece of mine published by Inquirer.net about six years ago, perhaps shows my concurrence with, rather than divergence from, Anthony’s discourse:

In a microcosmic sense, Iriga (etymologically, y raga, meaning “upland” or figuratively, “there’s opportunity”) was a land of promise to the folks of an older settlement. Apparently goaded by some appreciation of economic topography, the more adventurous settlers of the lowland saw the opportunity to trek up and form a new community. Historically, therefore, Iriga was a land of émigrés, a town built upon the pioneering spirit of its forebears, driven by the hope for greater autonomy. Little wonder then contemporary Irigueños, probably still motivated by such a sovereign zeal, are strong believers in equalitarian values exhibited in a manifold of ways that many would often take for granted.

The Iriga of my childhood welcomed anybody who would want to intermingle with the descendants of the town’s forerunners and its indigenous people. The ever present Chinese and the mestizos, some of Russian, German, Japanese, even Jewish ancestries, and the scions of the “Castilians,” not to mention, of course, the travelers and adventurers from neighboring towns. Nonetheless, the “centro” people called each other “guy” irrespective of status. The pervading communal conception was thus one of inclusiveness and mutual respect in the face of a healthy climate of competition.

In my view, the foregoing enlightenment, so to speak, allowed the fruition of multifaceted talents and abilities, and spawned a wellspring of aspirations and ambitions among the growing cosmopolitanized Irigueños, which, unfortunately, the town’s resources could not accommodate or absorb. Like their founding ancestors, the unsinkable Irigueños had to look for another y raga, or a land of superior opportunities, first in the megapolis of Manila and suburbs, and then even in more distant climes.

The irony is that North America, the favored expatriation of many, as well as Australia, was once a place of banishment where European labor, who couldn’t sell their skills in the market during the early phase of industrial revolution, had been ostracized to go, the better skilled craftsmen having been forced into the burgeoning factories principally in England. In recent years in Iriga, however, a reverse phenomenon—which is quite endemic in the Archipelago—has been taking place. More and more of the “best and the brightest” are lured to leave for the beckoning “upland” in an exodus of some kind because there are no factories, offices or hospitals in town to tap their craftsmanship and expertise with commensurate remuneration. Like other countries whose endowments are natural resources and the human constituents, the adventurism (or, perhaps, abnegation) of the latter would prove to be heroically significant in a lot ways, more particularly in keeping the struggling ship of the nation afloat. The Diaspora of Irigueños, and many other Filipinos for that matter, in different regions of the world, is therefore both a blessing and disguise.

Today, one of the challenges in our rapidly transforming global village could be how to create new meanings and purpose from such our state of affairs. Or, how to avail of the scientific and technological advances that are continuing to shrink both time and space, and turn our situation of physical dispersion to our favor.

In retrospect, Filipinos in exile during Rizal’s times, had taken advantage of the liberal ideas in Spain to hone their cosmopolitanism and proved that given the opportunity they could rise easily to be equals with their “masters.” It was also during this period when the conversation about which course to pursue to attain “emancipation”—either through reforms within the existing colonial relationship with Spain or by social upheaval of the French paradigm—was deepened and polarized. There are lingering questions today whether the Filipino Diaspora, generally speaking, is a reaction to some insurmountable obstacles to reaching rising expectations, such obstacles as anachronistic societal relationship, population growth, technological divide, blighted discipline, geographic fractiousness, prolonged experience of dependency and marginalization, or the ineptitude of self-seeking elites, to cite only those already recognized by some scholars, self-serving or otherwise.

As expatriates ourselves, we have the practical edge of critically looking at certain things that are occurring in our adopted countries from the perspective of our native culture and sub-cultures vis-à-vis our economic, political and demographic structures. Now, which ones do we choose to let go, or intend to preserve, capitalize on and impart? In an age of connectivity and information as wealth, there is an excellent window of opportunities to enrich our exchanges or share our social, cultural and other experiences with one another, and with our compatriots from a geographically distant town we still love to call home.

Man does not live by rice alone

2008-04-30T16:48:00.008-04:00

True, man does not live by rice alone, but democracy can really get problematic when the great mass of sovereign particles cannot get past subsistence level to be free from want. So when the needy bargain with their votes or go blindly by the bidding of their political lords (because power over basic needs is power over will) the free expression of the sovereign will is violated.

This is where we're stuck today: The Philippine economy is not growing enough to create surplus not only to provide and hold economic safety nets but also pay for certain essential infrastructure, physical and social, such as a meaningful program for a high-quality universal education in order to produce a large population geared up for a modern economy and an enlightened citizenry, the essential ingredient for a working democracy.

Creating the good society that democracy aims to pull off often involves a decision to conserve long-held beliefs, values, traditions and institutions, or, otherwise, revolutionize them. Whether to undergo transformation or not, it could be driven either by fear of a change for the worse or by hope for the better. Those with something or so much to lose will most likely lean toward conservatism and those with little or nothing to lose but their blighted station will veer toward radicalism. There are however well-intentioned individuals from across the political and social spectrum who will not shun adventurism to experiment on other pathways to progress.

At this stage of nation-building however, the burden of resolving, sans violent upheaval, the economic scarcity the country is facing is upon the laps of those with effective power or those who have access to various institutional sources of power. These powerholders are essentially the society's elites, who may have experienced some sort of Pauline conversion in secular sense, the way Filipinos in diaspora have been to some extent remade attitudinally, having been uprooted into new ways of doing things.

The change agents could in fact be new breed of productive men who must feel relatively deprived, not materially but morally, because they are challenged (or humiliated) out of individual and national pride for being elites in an economic basket case. Once this self-importance or sense of country is stirred, the decision to attain modernity will come easier such as on what approach to take in employing the country's resources to attain economic growth and development or how to allocate the economic surplus if and when created, depending on what ways of thinking they are willing to keep or unsettle. Even more specifically, on whether goods and services should be produced according to the autonomous decision of the individual wealth producers and entrepreneurs or government bureaucrats and specialists drawn in into those decisions in the context of public/private sectors coordination or partnership?

The looming "rice crisis" in the Philippines that threatens to destabilize the Arroyo government anew if it spins out of control is one such instance where the critical choice should have been decisively made long time ago. Today, the continuing breakdown of imagination is a telling reminder of failure to marry proven traditional practices with science in order to transition to modernity. We need not fall for or completely write off some doomsday "conspiracy theories" about giant corporate seed breeders controlling the food chain. Still a successful strategy for sustained agricultural surpluses in the area of rice production (possibly in conjunction with the development of the extractive sector) can be understood to pick up a good portion of the bill for the transition (e.g., foreign exchange from rice exports and similar agricultural supplies would help meet the need for imported capital goods necessary for industrialization).

If the political and entrepreneurial will on the part of those with effective power and resources held sway, there ought to be no excuse, given our equivalent natural and human resources, not to be competitive with rice exporting countries like our peers Thailand and Vietnam. But as it is, we are faced today with the humiliating reality of having botched big time to achieve and maintain food security for our growing population if only, at minimum, to keep their human dignity, or beyond which, for rational and free citizens of a surplus society to be actively involved in dealing with the many human problems that impact the system.

On the other hand, when only a handful of people perpetually hold power over the necessities of the many, our democracy, any democracy, is gravely imperiled.

The Hitlerian misadventures of Ferdinand Marcos that have turned upside down what's left of our democratic experiment and whose profligacy has vastly contributed to the morass we are in today will continue to haunt many Filipinos. Interestingly, however, it was during Marcos that the highest productivity level in agriculture has been observed. Since then, we have yet to see any substantive agenda to revolutionize our agriculture in terms of productivity-enhancing investments, such as research and development and infrastructure buildup. Any such policy redirection has apparently been eclipsed by the strategic focus on labor export and ultimately blindsided by the lure of OFW remittances of enormous worth. Now, in response even to this phenomenal stimulus, what novel ways of doing things have so far been agreed upon and pursued with a view to generating internally economic surpluses?

In the face of tendentiousness in favor of the old rent-collectors and money capitalists, real estate-based entrepreneurs and shopping mall taipans, without creating an adequate manufacturing base, general economic abundance and positive liberty for individuals in the service of democracy are unlikely to come about in the immediate future. Certainly, not when the legitimacy of the present political leadership remains in question.

Is the SC clueless of the meaning of legislative oversight?

2008-04-14T23:17:00.009-04:00

The following is in part what the Supreme Court of the Philippines has held in Neri v. Senate Committee about the meaning of “congressional oversight” as earlier expounded in Senate v. Ermita:
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At the outset, a glimpse at the landmark case of Senate v. Ermita becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function. Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court’s pronouncement in Senate v. Ermita is clear:

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

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My original reaction to Senate v. Ermita was a play of words: “An oversight on oversight.” The pun was of course meant to play up the Court’s “careless error” (oversight) in understanding the scope of congressional “watchful care” (oversight) of public policy execution. Why the highest court of the land appears clueless (twice) about legislative oversight really boggles the mind considering that two incumbent members of the Court have been outstanding former members of the Congress, Justice Tinga (a three-term congressman) and Justice Nachura (a two-term congressman).

Legislative oversight is broadly acknowledged as a long-standing process inherent in the power to make laws exercised by Congress basically through its various committees. Any congressman or senator who deserves the title ought to be familiar with this very important legislative task the essential purpose of which is to ensure the government is held accountable for carrying out the letter and the spirit of the law the legislature enacts.

Oversight is in effect a monitoring function of the vast public policies emanating from Congress written in statutes that are oftentimes deliberately general. A good example is the Labor Code of the Philippines, which because of its rather broad structure still necessitates the promulgation of a more detailed Omnibus Rules Implementing the Labor Code to enforce effectively the legislative policy on labor. The idea behind what some would claim as amounting to a “re-delegation” is to explore not what the implementing agency must do but what it can do under the law to accomplish its intent. The legislature in turn keeps an eye on this implementation phase of the law through oversight.

On the other hand, Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES, is an example of an attempt to enact a law to give Congress an oversight leverage in terms of enhancing or reinforcing the implementation of existing laws.

The most familiar aspect of oversight involves legislative inquiry or investigation in aid of legislation. The inquiry may refer to a specific legislative proposal (or in aid of making law in the strict sense of the term) or extend to any and all matters vested by the Constitution in Congress; or it may be conducted to probe government inefficiency, corruption, fraud or abuse to inform itself in the formulation of policy on those areas of public concerns. The investigation is not deemed misused regardless of whether it results in actual legislation or not. In this sense, legislative inquiries in aid of legislation as expressly provided under Section 21, Article VI of the Constitution serve as a tool of the broader implied oversight power of Congress in similar way that the contempt power of Congress works as a tool of its investigatory power.

Another essential, and probably the most efficacious, legislative oversight tool is the power of the purse. By employing this oversight mechanism, Congress can curtail or increase funding for a governmental agency, or reduce its personnel or expands its functions, as may be warranted. It is in this sense that heads of departments on their own initiative may appear before Congress for “question hour” pursuant to Section 22, Article of the Constitution on matters pertaining to their departments such as to explain the need for departmental budgetary changes.

The congressional confirmation of the presidential appointments involving heads of executive departments, ambassadors and officers of the armed forces from the rank of colonels is an oversight function of no insignificant worth but it is oversight nevertheless. So is the oversight that takes place whenever members of congress consult with their constituencies to obtain information that may form part of their committee reports or be availed of in congressional debates.

Oversight, which comes in many other forms than congressional inquiries in aid of legislation, takes up a lot of legislative time and is often observed as being improperly used for grandstanding purposes or gaining sound bytes by some ambitious politicians. It is perceived as counterproductive sometimes or perhaps most of the time. One thing is however certain: the scope and meaning of legislative oversight are not confined only to the so-called “question hour” under Section 22, Article VI of the Constitution as the Supreme Court had boldly pronounced in Senate v. Ermita and then reiterated in Neri v. Senate Committee.

How could the Supreme Court miss it twice?

The first time, it is possible the Court may have committed an “error of judgment” which is not punishable per se; the second time, it is as not as easy to justify the voluntary ignorance as other than a political decision by a partisan court, a judicial misconduct liable to rise to the level of an impeachable offense.

Transparency mandate on foreign loans trumps executive privilege

2008-04-09T21:14:00.004-04:00

According to Justice Holmes “The life of the law has not been logic: it has been experience,” because the “law embodies the story of a nation’s development.”

Many salient provisions of the 1987 Constitution of the Philippines, such as those dealing in human rights, accountability, transparency as well as the curtailment of presidential powers on the one hand and the expansion of congressional authority and the protection of judicial independence on the other, are lessons learned from the national experience of licentiousness and abuse of power during Marcos misrule.

Because of the strongman’s seemingly untrammeled profligacy, for example, the Philippines has become one of the most heavily indebted countries in the world and a laggard economy in the region.

It is quite explicable then that when it comes to contracting foreign loans under the post-Marcos constitutional regime, the President and Congress are not co-equal, the return to the presidential system notwithstanding. By express constitutional provisions (Section 20, Article VII) the authorization allowed the President to incur foreign debt remains subject to the limitations as Congress by law may provide, thereby according Congress a seniority position in this power relation between the two government branches.

But plain constitutional governance also supersedes legislative control over foreign loan disclosure requirements by the very absence in the Constitution of legislative authority to limit disclosure. Pursuant to Section 21, Article XII “Information on foreign loans obtained or guaranteed by the Government shall be made available to the public” without any limitation or qualification. This rigid disclosure requirement can be better appreciated if juxtaposed with the “right of the people to information on matters of public concerns” under Section 7, Article III, which while constitutionally “recognized” is “subject to such limitations as may be provided by law.”

What is more, in the tripartite partnership among the President, the Monetary Board and Congress in the matter of contracting or guaranteeing of foreign loans created by Section 20, Article VII in relation to Section 21, Article XII, the President occupies a status even junior to the Monetary Board. Accordingly, the “President may contract or guarantee foreign loan . . . with the prior concurrence of the Monetary Board” (indicating the requirement of the Board’s concurrence before initiating loan negotiation)(emphasis mine) and “in accordance with . . . the regulation of the monetary authority.” By contrast, no such prior Senate concurrence is required when it comes to the validity of a treaty or international agreement entered into by the President.

Such control mechanism in place is again understandable from the standpoint of the same dreadful experience the nation is still smarting over. For instance, the largest single debt of the Philippines was for the financing of the Bataan nuclear power station, a white elephant constructed during the dictatorship at the cost of $2.3 billion. The station has never been in operation and the country has struggled to repay the loan for over three decades.

The strategic switch in the now “cancelled” national broadband network (NBN) project from a built-operate-transfer (BOT) arrangement (which normally does not require direct government funding) to a scheme financed by a government foreign loan has been attended by testimonies of overpricing, bribery and a $70-million “commission” for Jose Miguel Arroyo, the presidential spouse. The scandal is reminiscent of the dubious change of heart in the selection of the contactor for the Bataan nuclear power plant from General Electric (whose lower bid had already been approved by a Marcos-appointed panel before being reversed by Marcos himself) to rival Westinghouse marred by charges of some $80 million kickbacks for Marcos.

We can never afford to have a short memory of a tragedy yet so fresh because even the younger generations of Filipinos of today are still paying for the faintheartedness, apathy and canine submission of our elders.

The cogency is thus inevitable in the proposition that if in the overarching constitutional architecture of disclosure and transparency, the general rule is the right of the people to information on matters of public concerns, and an exception to the rule where applicable is the doctrinal executive privilege, an obvious exception to such an exception is the specific constitutional mandate on disclosure of information on foreign loans. Very sadly, the majority of the Court in Neri v. Senate Committee by protecting presidential secrecy has voluntarily ignored in toto the all-important constitutional distinctions with potential consequences of crisis proportion.

Neri, a landmark ruling if held on half a page

2008-04-04T17:14:00.012-04:00

No frills, Neri v. Senate Committee should have been a cut-and-dry case.

The essential FACTS and ALLEGATIONS are not complicated:

The testimony of Romulo Neri, former NEDA Director General, before the three Senate committees was to the effect that President Arroyo to spare the government from funding the proposed National Broadband Network (NBN) project had been first amenable to undertake the said project on a Build-Operate-Transfer (BOT) arrangement; it was however put aside to give way to one financed by a government-to-government loan to be obtained by the Philippines from China. Over other competitors, the project worth $329.48 million, now better known as the NBN-ZTE deal, was ultimately awarded to ZTE, a China owned corporation.

Of all the people in the Philippines, the highest election official of the land, COMELEC Chairman Benjamin Abalos - who had been alluded a number of times in the “Hello, Garci tapes” - appeared to have brokered the deal and offered Mr. Neri 200 million pesos in exchange for NEDA’s approval of the project. Mr. Neri informed President Arroyo of the bribe offer but Arroyo did not immediately order the investigation of the “crime” directly reported to her by Mr. Neri or cause the prosecution of Abalos. Arroyo however told Mr. Neri not to accept the bribe. At such point and thereafter, Mr. Neri has refused to answer further questions from members of the committees about what he and the President talked about invoking executive privilege.

Rodolfo Noel Lozada Jr, an erstwhile NEDA consultant who reviewed the NBN project testified before the Senate committees that the project was overpriced by $197 million and accused Abalos of demanding a $130-million “commission” from the project.

Jose De Venecia III, the son of former Speaker Jose de Venecia Jr., also testified before the Senate committees that the President’s husband, Jose Miguel Arroyo told him to “back off” from pursuing the project. De Venecia III co-owns Amsterdam Holdings Inc, which submitted a losing proposal for the NBN project.

In his testimony, De Venecia III further claimed that Mr. Arroyo wanted a $70-million “commission” from the project.

Following the testimony of Mr. Neri, three more important events happened: 1) The foreign loan was cancelled together with the NBN project; 2) Abalos quit as COMELEC chairman; and 3) Arroyo admitted over dzRH radio that she had been advised about the irregularities in the project the day before she witnessed the signing of the NBN-ZTE deal in China. (NOTE: The executed NBN-ZTE contract was also reportedly stolen.)

The ISSUE: Whether or not Mr. Neri should be required to answer more questions about the NBN-ZTE deal than he has already made available to the public despite his invocation of executive privilege?

What are NOT AT ISSUE: 1) That the President and other high-ranking executive officials, by established constitutional doctrine, are entitled to “executive privilege” to withhold information from Congress, the courts and the public, subject to constitutional limitations. 2) That by express provisions of the Constitution, Congress or any of its committees, have the power of inquiry in aid of legislation or by time-honored congressional practices and traditions and established constitutional doctrine the power of oversight, both powers being similarly subject to constitutional limitations.

The RULING (that never was):

The issue being thus narrowed, the APPLICABLE LAW is straightforward:

“Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.” (Section 21, Article XII of the Constitution)

The foregoing provision is an express constitutional limitation to the doctrinal executive privilege developed in American jurisprudence. The limitation is operative regardless of whether the information on foreign loan is being demanded by an ordinary taxpayer, the Monetary Board, or by Congress or any of its committees in aid of legislation. When it comes to information on foreign loans obtained or guaranteed by the government, judicial decisions of alien origin upholding the claim of executive privilege but are inconsistent with the constitutional requirement of disclosure are without force and effect. For how could a decision of an inferior foreign court modify an unmistakable constitutional mandate?

Under pain of penalty, Mr. Neri may therefore be compelled to disclose more information about the NBN-ZTE deal than he has already made available to the public despite invocation of executive privilege.

Postmortem ANALYSIS: Executive privilege encourages presidential unilateralism. When used against legislative oversight, the privilege serves to veto policymaking at its very inception. Why did the majority in Neri in the effort to uphold executive privilege choose to play blind to the clear language of accountability and transparency in the Constitution?

Neri, en route to judicial despotism

2008-04-02T16:04:00.008-04:00

(This piece originally a reaction comment at mlq3’s blogsite is re-posted here, slightly edited, for easy reference)

I remember excusing myself from an invitation of Manolo Quezon to participate in the discussion on “separation of powers” in his talk show. However, I did draw his attention to a constitutional issue I had had a chance to delve into in an older commentary regarding the implication of the so-called expanded certiorari jurisdiction of the Philippine Supreme Court under Section 1, Article VIII of the Constitution as construed today by the justices. I was referring to the Court’s “judicial power” as defined in the said constitutional provision as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Italics mine). The suggestion was meant to express my apprehension about the potential for “judicial despotism” in the Philippines in the long term rather than the resort to Marcosian authoritarianism by President Arroyo in the short term.

I have pointed out in my commentary that Section 1, Article VIII is the realization of a singular mission of Mr. Chief Justice Roberto Concepcion (“Mr. Rule of Law” himself). The former Chief Justice’s hope, grown out of his unfortunate experience as chief justice, was to obviate another Javellana scenario wherein his brethren in robes conveniently have chosen to evade, on “political question” pretense, their judicial “duty” to rule on transcendental constitutional matters such as the adoption of a constitution.

Today, instead of a prescription for judicial duty, Section1, Article VIII is emerging as an alarming source of seemingly unlimited judicial powers, with the Supreme Court effectively transforming itself as a branch of government more equal among co-equals.

The Court had brandished a couple of times before this self-branded expanded certiorari authority, but in the most recent Neri v. Senate Committee decision, it brought out the monster out of the cave to cripple a coordinate branch of the government, or even encroach upon textually committed constitutional functions of the Senate or three of its committees.

To follow at this point Mr. Quezon’s painfully nostalgic drift to legal history, it should be noted that judicial review or the scope of judicial powers for that matter is actually vastly unsaid in the US Constitution. But Alexander Hamilton defended it in the Federalist papers during the campaign for ratification of the US Constitution, by arguing that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them” unlike the executive who has the “sword” and the legislature the “purse.”

“The interpretation of the laws,” according to Hamilton, “is the proper and peculiar province of the courts” although he was also among the first to call such function an “arduous a duty.” The plea was characteristically Hamiltonian. He was countermajoritarian (i.e., anti-people power) and during the constitutional convention, delegate Hamilton was quite straightforward about his preference for a constitutional aristocracy, if not monarchy. Luckily for the Americans, none followed his lead, well, not until Chief Justice Marshall’s exercise in applied politics in Marbury v. Madison (1803), essentially a plagiarized version of Hamilton’s arguments.

Constitutional democracy in America was then in its infancy and yet taking place on a trial and error basis. One of such costly errors was the Court’s decision 50 years after Marbury in Dred Scott v. Stanford (1857). In Dred Scott, it was ruled that black people were not US citizens (because they were in fact not humans but property), heightening the political tensions that attended the American Civil War. The horrible cost was more American lives lost in the fratricidal war than in World War II.

Abraham Lincoln was among those vocally wary early on of “judicial despotism.” During his inaugural address in 1861, Lincoln assailed Dred Scott: “ . . . if the policy of the government upon vital questions, affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers . . ..”

Quite afflicted by the Lincolnian angst as a result of some recent disturbing pronouncements by the Philippine Supreme Court (Estrada v. Desierto, Francisco v. House of Representatives, Santiago v. Comelec, Lambino v. Comelec and Senate v. Ermita) as a student of Constitutional Law I have welcomed the following corrective measures: Make easier the constitutional requirement for people’s initiative, referendum and recall and make judges, lawmakers, political parties, professional politicians and the laws and the Constitution responsive to changing necessities of our own time instead of fawning deference to American jurisprudence, a flawed “jurisprudential colonial mentality” (to borrow the fighting words of Senator Meriam Santiago).

Neri v. Senate Committee is just another exercise of such “jurisprudential colonial mentality,” in a manner so degrading our Court is even willing to substitute a decision of a US court of appeal for what’s expressly mandated by our own Constitution.

Neri, a culpable violation of the Constituion

2008-03-31T23:29:00.002-04:00

Fr. Joaquin Bernas, Ateneo de Manila law dean and an authoritative Philippine Constitutional Law commentator, is simply diplomatic in stating that the implication of the majority decision in Neri v. Senate Committee would be to “revolutionize the doctrine on executive privilege.”

On the other hand, the Hon. Artemio Panganiban, the former Supreme Court Chief Justice, is almost apocalyptic in finding the Neri decision to have “unreasonably suppressed the truth” and warning the justices against choosing “to serve . . . President Arroyo” or otherwise earn the dishonorable tag as the “Arroyo Supreme Court.”

When push come to shove however and what’s teetering on the precipice is the very foundation of our democratic institutions, ought not Filipinos of the stature of Bernas and Panganiban do more and call a spade a spade? The message would certainly be heard louder if what’s said in unison is: That the judicial misconduct by the majority in Neri amounts to “culpable violation of the Constitution” and therefore constitutes impeachable offense.

Why not?

Panagniban is unequivocal that the Neri majority has ignored the “constitutional mandate requiring transparency and accountability of officials” and instead invoked and applied foreign jurisprudence that’s “simply inapplicable” (the greater part of which, if I may add, is a decision of a U.S. court of appeals).

On the other hand, for Bernas “the ponencia (ruling) that the matter was covered by executive privilege” could mean no less than “to sublimate guesswork.” Indeed, Neri v. Senate Committee while may not be a doctrine as yet is a “paralyzing and stifling” decision, Bernas, the Court’s most wanted amicus curiae, evidently suggests further.

Won’t the Court fire a lower court judge for disregarding clear constitutional mandates or basing on guesswork a decision the effect of which is to “cripple efforts to battle official corruption” or to seek the truth about such corruption rending a nation already financially strapped? This time, what’s inside the envelope the “Negotiable Nine” have denied the public to know?

For such an assault on the Constitution and the very foundation of Philippine republicanism, a motion for reconsideration as the next course of action would be a copout for Congress. But initiating impeachment proceedings against the erring justices will afford an opportunity to let out the folly of the unfortunate decision they arrived at in the comfort of their secret chambers.

Or, at the very least, the Senate can call the Palace bluff or threat of a constitutional crisis that may result from all and any of its proceedings or activities including legislations being rendered null if traceable to the supposedly infirm Senate Rules.

And by the way, where are the “fast draw” impeachment competitors, Lozano and Pulido?

Neri v. Senate, a bad decision

2008-03-26T23:02:00.012-04:00

[Neri v. Senate Committee] is really bad decision. It pays lip service to the doctrines laid down in Ermita and expands executive privilege to the detriment of legislative inquiry and right to public information. - by Prof. Edwin Lacierda (per mlq3)

In an earlier entry, I have submitted that the Supreme Court in Francisco, Jr. v. House of Representatives has practically crippled the impeachment process by adopting the Bernasian reading of “initiate” under Article XI, Section 3 of the Constitution in lieu of the interpretation of the House of Representatives, and taking up what it supposed as its “activist” role, declared such interpretation of a coordinate branch, contained in the House Impeachment Rules, unconstitutional. Under the impeachment gun then was Hilario Davide, Jr. and so the robed gang huddled together and quite expectedly hailed their Chief - at the expense of the Constitution. Francisco, I concluded, is therefore the father of Lozano and Pulido.

Now, Senate v. Ermita can also say, “Here, have a cigar, we have sired a son … in Neri v. Senate Committee.”

Because the father had misspoken, the son lost its way, and unabashedly acknowledged being befuddled. The majority in Neri conceded:

Senate v. Ermita ruled that the “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress.

I had the chance here to analyze Senate v. Ermita in re Section 21 and Section 22 of Article VI of the Constitution as follows.

The power of inquiry provided under Section 21 of Article VI is just one specific source of the totality of the congressional oversight authority [other sources include a) the power to reorganize the government bureaucracy, including the executive and judicial agencies, b) the power of taxation, c) the power of appropriation, d) the power of impeachment, e) the power of confirmation, f) the power to declare war, and g) the power to raise and support the armed forces]. In this case, the power of inquiry is employed as a tool to carry out the oversight function just as the subpoena and contempt powers are availed of as mechanisms ancillary to the same function. It is not therefore correct to suggest that the oversight power is of lesser consequence than the power of inquiry.

Section 22 of the same Article VI is one other source of the oversight authority of Congress. The Supreme Court in the Senate v. Ermita, adopting the characterization of then constitutional commissioner and chairman of the Legislative Committee Hilario Davide, calls Section 22 as the provision on “Question Hour”. Such interpretation is not mistaken except that this section, it should be noted, underscores more the interdependence of the two political branches of the government than their separation (hence, its rather non-obligatory or “discretionary” nature by contrast with Section 21). The same section acknowledges the privilege of the heads of the executive departments to appear, with the consent of the President, and be heard by Congress on matters pertaining to their departments (as, for example, in a request by a department head for enhanced powers or greater funding for his department).

In the overall scheme of the oversight function of Congress, Sections 21 and 22 of Article VI are not only complementary but, to borrow Davide’s words, “very, very essential” to each other.

In the light of the constitutional conception and overriding reach of congressional oversight, the Supreme Court lacks firm grounding in the following explanation it has provided in the said Senate v. Ermita case:

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance.

Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

Policymaking on the part of Congress is well-nigh plenary. It is then axiomatic that the presumption of acting responsibly and constitutionally is strongly in its committees’ favor precisely because of the equivalent breadth of the oversight function in the policymaking process. This function preponderates over against the possible invocation of the so-called “executive privilege” - one that has yet to find expression in the explicit language of the Constitution.

Very clearly, executive privilege can only be invoked by way of exception. So when the executive officials fail to show that the privilege is “of such high degree as to outweigh the public interest,” as Senate v. Ermita ruling describes it, in the disclosure of the supposedly privileged information, congressional oversight, as a general rule, will trump an appeal to the supposed privilege. In that event, contumacious defiance and refusal to disclose the information sought or needed by Congress for legislative purposes renders the withholding official liable to its contempt process and the attendant punitive measures. Indeed, Congress, acting through its committees, need not rely upon the all-too-measured judicial pace to exercise the ultimate power of oversight and thereupon employ the necessary enforcement tools.

I did mock the Senate then when it dashed to the SC like a cry baby complaining about EC 424, this way:

Now, given that “in republican government, the legislative authority necessarily predominates” (James Madison, Federalist No. 51), one wonders why the congressional committees easily backed off (unless of course the committee members have been clueless what’s in their wallet) when President Arroyo upon a claim of executive privilege issued Executive Order 424 and the Senate itself immediately repaired to the Supreme Court to complain as if its subpoena and contempt powers were suddenly whisked away by the order like candy bars snatched by a “schoolyard bully.”

This time the bully is in the Court’s yard. For the majority in Neri, while pretending to sing paean to “the fundamental constitutional principles which underlie our tripartite system of government,” has ultimately decided, invoking the Court’s so-called expanded certiorari jurisdiction under Section 1), Article VIII of the Constitution, to clip not just one particular checks-and-balances mechanism expressly committed by the Constitution to a co-equal branch but also effectively encroach into the very core of the power of Congress, the power to make laws.

Needless to state, when the Court proceeds to nullify an act of a co-equal branch, especially the most representative of the three branches, it should only do so when the unconstitutionality (or grave abuse of discretion) is shown to be so manifest as to leave no room for reasonable doubt because even a court of last resort must also confess the limits of its own powers. Therefore, whenever an act of Congress is rational it must be presumed to be regular and constitutional and the Court must respect the great range of legislative power or discretion whether in legislating or interpreting the constitution by leaving it unperturbed in the absence of moral certainty as to its infirmity. In like fashion, Congress should not by law interfere in the way the Court arrives at its decisions or in the deliberation over its cases, or in the manner the Commander-in-chief for instance prosecutes a war against an enemy because one power or the other does not belong to it but to a co-equal branch.

By force of this logic, there was no reason for the Court in Neri to unnecessarily try to import its own judgment at the very inception of legislative process or of initiating remedial legislation and waste its own time, when it could have easily conceded that on the hand the President is entitled to executive privilege (to withhold information requested by other branches of the government) by established constitutional doctrine and that on the other the Senate or its committees by express provision of the Constitution have the power of inquiry in aid of lawmaking (which includes the power to probe into government agencies to expose corruption).

Considering however that Mr. Neri himself, without seasonably invoking the supposed lack of proper publication of the Senate Rules, already testified under oath before the joint Senate committees that he had been offered a “bribe” of 200 million pesos (“Chairman Abalos offered me 200 million for this,” Mr. Neri has testified) involving the incurring of a foreign loan, it would have been logical to look in the Constitution for express exception or limitation not to the congressional power of inquiry but to the invocation of executive privilege. Section 21, Article XII (National Economy and Patrimony) provides such express limitation to the executive privilege of non-disclosure where it states: “Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.” (Italics mine.) Perforce executive privilege must give way to such a categorical mandate of disclosure in the plain language of the Constitution.

Dismissing forthright the petition of Mr. Neri would have been the simple end of the matter since neither the President nor the Supreme Court is above the Constitution.

Jesus and People Power

2008-03-21T13:16:00.012-04:00

In Why People Power III is taking its time, I’ve wrapped up with a reminder that “Ecclesiastics and the laity alike must not fail to remember that the continuing appeal of Christianity as a powerful religious upheaval and of People Power is due to the historical reality that both have given hope to the many who were once powerless.”

On the other hand, Manolo Quezon’s pointed entry on Roman Catholicism vis-à-vis charges of possible abuse of pastoral authority by certain bishops in the Philippines (prompting NBN/ZTE deal star witness Jun Lozada to call the Archdiocese of Cebu as the “Archdiocese of Malacañang”) has come to highlight the historicity of the Church hierarchy and papal primacy:

Catholicism is a hierarchical religion, and administratively, organized under imperial Roman lines, one of the Pope’s titles being that of Supreme Pontiff (Pontifex Maximus), one of the titles of the emperors of Rome; archbishops and bishops rule of over dioceses, a term borrowed from the administrative setup of the Roman empire. Spiritually, it is organized on both a hierarchical and collegial lines, as bishops are successors of the Apostles, of whom the first among equals was Peter:

“And I say to you that you are Peter, and on this rock will my church be based, and the doors of hell will not overcome it.”

As a religion that happens to have a government, the governing power of Catholicism is exercised by the Pope in a political sense (as sovereign of the Vatican City state), and in a spiritual sense, by the Pope together with the bishops. In matters of faith and morals, the Pope is infallible when proclaiming dogma: for example, Pius XII’s proclamation of the Assumption of the Blessed Virgin as dogma; infallibility is also granted the hierarchy of the Church when they gather in Ecumenical Council for the same purpose, for example, most recently, Vatican II.

But there was of course a period of decadence in ecclesiastical hierarchy and authority when bishops, even popes, were drawn into royal service or forced to an interweaving of ecclesiastical and royal authority, or when the Church in fact saw its division into dioceses and individual parishes well-nigh lapsing into popular Christianity.

More recently, there have been profound changes initiated by progressive leaders of the Roman Catholic Church weighing down on the scaffold of the Church’s culture of hierarchy that the Philippine Church (and other Catholic conservatives) might have failed to catch on.

For example, the idea of workers empowerment has been attributed to an Englishman named Eric Trist, considered to be the “evangelist for participative management.” Challenging the conventional wisdom about the imperative for “autocracy” in business concerns, Trist suggested that giving workers complete responsibility for an entire operation could lead to job performance that is more productive. It was also a challenge directed to “scientific management” which Henry Ford perfected in the U.S. automobile factories. The concept of empowered work team, however took root in the U.S. only in the 70s and 80s, and only after the Second Vatican Council had begun preparation in 1959, the most important achievement of which could be the empowerment of the laity and the parallel cutback in the power of the clergy and maybe the magisterium itself.

At the Second Vatican Council, among the progressive documents enacted by the fathers is the “Dogmatic Constitution of the Church” (Lumen Gentium) which, inter alia, called the lay people to share the missionary vocation of the church and described the church as the “People of God.” Another Council document, the “Constitution on the Sacred Liturgy,” has promulgated the principle of greater participation of the laity in the celebration of the mass. The Council also enunciated the apostolate of the laity.

The monarchical underpinnings of the First Vatican Council (1869-1870) that proclaimed the infallibility of the pope when speaking ex cathedra somehow deferred, following the Second Vatican Council (1962-1965), to the increasing role of the bishops (versus the papal prerogative of infallibility) even as the textual modification of the Canon Law paved the way for the recognition of the expanding role of the laity, Chapter III of Lumen Gentium, affirming the hierarchical structure of the Church notwithstanding.

The notion of “shared responsibility,” “co-responsible leadership,” and “decision-making by consensus,” became intertwined with the progressive construction of the Canon Law provisions, as modified by the Second Council, on “pastoral (parish) councils” long before those terminologies became fashionable in the world of business, management and political discourse.

Pope John Paul II in Sources of Renewal, a book he wrote about his experience at the Second Vatican Council, articulated the following:

“. . . A parish needs a council in order to insure that it is truly faithful to God’s call. Catholics have always cherished the idea of obedience and fidelity to God’s word spoken in and through the Church. It is that same Church that is calling its people now to listen for God’s words spoken not only through the leadership, but through fellow Christians as well. But to hear that word spoken through the people requires a new structure, a new way. A council united with the pastor provides by design that way, because its representative nature insures that every voice is heard, not just those that are the loudest, or the most powerful or the most traditional. ”(Italics mine.)

Expounding on the same vein in his book, Co-responsibility in the Church, Leo Joseph Cardinal Suenens, who helped set the agenda of the Vatican II, wrote:

“. . . The role of the one in charge is not that of making a ‘personal’ decision after taking the advice of others into account. For in that case it would still be ‘his’ decision. His role is rather to make it possible, in so far as this depends upon him, for there is to be a common decision, which commits each member to the decision, in such a way that they are solidly behind it and willing to accept all the consequences of what has been decided together.”

Many Christian faithfuls recognize in the gospel narrative that the first to rebel against Hierarchy was Jesus himself. Despite being Divine, Jesus came down not as a conquering King but as a steward to serve and not be served, to ransom as many men, to “go on to the nearby villages” and to build the rock, one Peter at a time.

Christianity triumphed not only for the fact that it accepted all believers (rich, poor, woman, Samaritan, Jews or gentiles); it also returned the power of hope to the powerless.

Compared to Arroyo, Spitzer deserves respect for chutzpah

2008-03-15T17:59:00.011-04:00

Reacting to the Eliot Spitzer bombshell I have posted the following in mlq3’s blog:

Rising star Eliot Spitzer who could have been Hilary Clinton’s running mate, announced his resignation as governor of New York on allegation of spending thousand of dollars on call girls. Prostitution is basically a victimless crime but Spitzer, way before a “probable cause” has been determined or “legal truth” established, resigned for failing to live up to the standards expected of public officials, he said.

Politically, Spitzer is deemed finished.

President Gloria Macapagal-Arroyo has faced a staggering list of corruption charges including the following as compiled by Philippine Daily Inquirer:

“The Impsa deal where high-ranking officials, including then Justice Secretary Hernando Perez, allegedly got $14 million in kickbacks; the P260-million Jose Pidal bank accounts; the P728-million fertilizer scam; the P2.5-billion poll computerization contract which was voided by the Supreme Court but for which no Comelec official has been prosecuted or penalized; the NorthRail and SouthRail projects entailing millions of dollars in kickbacks; and now, the $329-million NBN-ZTE deal where $130 million was reportedly earmarked in kickbacks for a group of officials and private persons.”

Arroyo’s political body language is seen by many as choreographed to prolong her rule beyond constitutional term limit.

Is it us, Filipinos, or Gloria?

And in reply to the comments of rego, a Filipino New Yorker and both a Spitzer fan and a pro-GMA commenter, I posted, “I’m just thinking too that maybe in the deeper recesses of your thoughts, weren’t you wishing na nag-Gloria na sana si Eliot?” (meaning, Eliot should have just done a Gloria, i.e., hold on to power and not resign).

Rego retorted: “I was thinking about this when this Spitzer scandal came out. My instant reaction was Eliot should resign same way with the majority of the people. I have this discussion with my cousin in law (another big fan of Eliot) who feels that Eliot should not resign. The evidences was just soooooo strong that my stand prevails in the house.”

I came back with this rejoinder:

Let me focus on Manolo’s original sin.

During the 2004 presidential election in the US there were charges of electoral fraud or cheating to the effect that about 350,000 mainly Democratic voters in Ohio either were not allowed to vote or their votes were not counted and that thousands more of Kerry votes were shifted to Bush, altogether enough for Kerry to have won Ohio and the presidential election.

If the evidence to prove the allegations of fraud and cheating were a video clip of hundreds of registered Democratic voters waiting outside the voting precincts for 10-12 hours (and many who were frustrated eventually left home without voting), I’d hold my horse to claim those were “solid” evidence of the charges.

However, if you have a wiretap evidence of Bush (or someone uniquely sounding very much like Bush) telling an Ohio election official to prevent 500,000 Democrats from voting and then 10 of Bush’s cabinet members (with whom he had confided as to how to handle the crisis or what to do with the evidence) have resigned out of disgust, would you consider the wiretap evidence “solid” enough to establish “probable cause” not necessarily of fraud or cheating but of “betrayal of public trust” to be worth the consideration of an impeachment court?

In such a situation, would not your “instant reaction” or your cousin-in-law’s, “same way with the majority of the people,” have been for Bush to resign before being impeached as fast as Spitzer having resigned before being indicted?

Let’s look back a bit.

A couple of weeks before the President Gloria Macapagal-Arroyo’s “lapse in judgment” admission, sociologist and UP Professor Randy David (applying what he calls in sociology as "ethnomethodology" that goes into “the rational characteristics of conversations”) had come out with the following analysis of the “Hello Garci” tapes in the June 12, 2005 piece for his PDI column “Public Lives”:

The key figure is a male voice variously referred to as "Commissioner" or "Garci." It was obviously his phone that was bugged. By the types of situations brought to him for fixing, by the variety of people desperately seeking his help, and by the frightening ease with which he dispenses solutions-one would know that this man is an old hand in the underworld of electoral fraud.

He knows exactly where to pull additional votes and for how much, and how to deal with recalcitrant election registrars who don't cooperate. Politicians come to him for help like anxious little children. They rely on him to do all the dirty tricks they need to do to win, things they themselves would sanctimoniously decry in public.

This is the political operator that "Ma'am" repeatedly calls as she nervously awaits the results from far-flung towns in Mindanao. Listen to this cryptic exchange: "Hello Ma'am?/ Hello, meron tayong statement of votes, ERs para sa Sulu?/ Saan po Ma'am?/ Sulu, Sulu./ Oo Ma'am meron po./ Nagco-correspond?/ Oo Ma'am./ Kumpleto?/ Oo Ma'am. Lahat ho meron, hindi po namin ika-count kung.... / Ok, ok."

On the surface it does look like an innocent exchange. The key word here is "nagco-correspond" - a gloss that refers to the practice of fixing canvass results at, say, the provincial level so that they are not at variance with precinct election returns or statement of votes for municipalities. The other gloss is the question "Kumpleto?" This is not a harmless inquiry. Given the kind of response it elicits, it is an urgent demand to make sure the doctoring is done with care.

One knows this from examining other conversations: "Hello/ Hello, Ma'am, good morning. Ok Ma'am, mas mataas ho siya pero mag-compensate po sa Lanao yan./ So will I still lead by more than 1 M overall?/ More or less, but it is still an advantage, Ma'am. Parang ganun din ang lalabas./ Oo, pero it will not be less than 1M?/ Pipilitin ho natin yan. Pero, as of the other day, 982./ Kaya nga eh./ And then, if we can get more in Lanao./ Hindi pa ba tapos?/ Hindi pa ho. Meron pa hong darating na 7 municipalities./ Ah, ok, ok./ Sige po./ Ok, ok, ok..."

The Counsels for the Defense of Liberties (CODAL) has contended the contents of the conversations in the "Hello Garci" tapes are crimes in themselves:

CODAL arguments as summed up by PCIJ in the following abbreviated version are equally compelling:

- Pres. Arroyo’s implied request for Garcillano to deny any petition from Sen. Biazon to open election documents in Tawi-Tawi ‘at baka matalo ako dun’ is a crime. Influencing an official to decide one way or the other in a case to be filed or pending before him violates Section 261 of the Election Code.

- Garcillano admitted to electoral fraud when he told Pres. Arroyo: "kinausap ko na yung chairman of the Board ng Sulu, yung sa akin. Pataguin ko muna ang EO ng Paguntaran para hindi sila makatestigo ho." A COMELEC official is not supposed to ‘hide’ an election officer or any member of the electoral board to prevent said official from testifying as this is obstruction of justice under Sec. 1 (a) of PD 1829. If the hiding was not ‘voluntary’, Garcillano may even be liable for kidnapping.

- From various conversations in the Garci tapes Pres. Arroyo and Garcillano may be held criminally liable for discussing the commission of electoral fraud. Alleged statements like ,‘ganito ang pagpataas ng iyong boto, eh malinis naman ang pagkagawa’; or "will I still lead by 1 M’ followed by a reply of ‘pipilitin natin’; or ‘Doon naman sa Basilan at Lanao del Sur ito ho yung ginawa nilang magpataas sa inyo, maayos naman ang paggawa eh" followed by a reply from Pres. Arroyo saying "so nagma-match?" all point to a conspiracy to manipulate election results.

- The fact that Garcillano and Pres. Arroyo uses the words ‘atin’ referring to themselves and ‘kanila’ or ‘kabila’ when referring to her opponents, already shows the bias of a supposedly independent constitutional official. All these makes both of them liable under Section 261 (z) (21) of the Omnibus Election Code for violating the integrity of election returns and other election documents and other electoral fraud.

- Should Pres. Arroyo claim ignorance to electoral fraud, the fact that she failed to report Garcillano to the proper authorities or filed a complaint against him, despite his frank admission to committing election offenses and by reappointing him to the Comelec, makes her liable under Art. 208 of the Revised Penal Code which provides for a penalty of prision correccional upon a public official who in dereliction of his duties, shall maliciously refrain from instituting prosecution or the punishment of violators of the law or shall tolerate the commission of offenses.

Now, the wiretap conversation where Arroyo appeared to desire for a million-vote margin over the votes of opposition candidate Fernando Poe, Jr. sparked calls for Arroyo to resign. On June 27, 2005, she went on television and apologized for a “lapse in judgment.” While admitting that it was her voice in the recordings she however insisted she did not “influenced the outcome of the election “ as it has “already been decided and the votes counted.”

Here’s the pertinent portion of GMA’s “lapse in judgment” speech on charges of electoral prostitution:

“I recognize that making any such call was a lapse in judgment. I am sorry. I also regret taking so long to speak before you on this matter. I take full responsibility for my actions and to you and to all those good citizens who may have had their faith shaken by these events. I want to assure you that I have redoubled my efforts to serve the nation and earn your trust.

“Nagagambala ako. Maliwanag na may kakulangan sa wastong pagpapasya ang nangyaring pagtawag sa telepono. Pinagsisisihan ko ito nang lubos. Pinananagutan ko nang lubusan ang aking ginawa, at humihingi ako ng tawad sa inyo, sa lahat ng mga butihing mamamayan na nabawasan ng tiwala dahil sa mga pangyayaring ito. Ibig kong tiyakin sa inyo na lalo pa akong magsisikap upang maglingkod sa bayan at matamo inyong tiwala.”

New York governor Eliot Spitzer’s “private failings” speech on allegation of sexual prostitution seems of similar vein:

“I am deeply sorry that I did not live up to what was expected of me. To every New Yorker, and to all those who believed in what I tried to stand for, I sincerely apologize.

“I look at my time as governor with a sense of what might have been, but I also know that as a public servant I, and the remarkable people with whom I worked, have accomplished a great deal. There is much more to be done, and I cannot allow my private failings to disrupt the people’s work. Over the course of my public life, I have insisted, I believe correctly, that people, regardless of their position or power, take responsibility for their conduct. I can and will ask no less of myself. For this reason, I am resigning from the office of governor. . . .

“I go forward with the belief, as others have said, that as human beings, our greatest glory consists not in never falling, but in rising every time we fall. As I leave public life, I will first do what I need to do to help and heal myself and my family. Then I will try once again, outside of politics, to serve the common good and to move toward the ideals and solutions which I believe can build a future of hope and opportunity for us and for our children.”

What’s obviously missing from GMA’s speech is this:

“For this reason, I am resigning from the office of president.”