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San Juan Gossip Mills Outlet

A veritable fanatic of the Internet. His avocation is teaching while his main vocation is practicing the much maligned law profession. Currently teaching Constitutional Law at the FEU Institute of Law and a guest lecturer at the De La Salle University teaching "Freedom and Regulation in Cyberspace" in the Graduate Program of the Department of Communication. He is married to his beautiful Ateneo law school classmate and is blessed with a daughter and a son.

Location: San Juan, Metro Manila, Philippines

Sunday, July 31, 2005

Our Greatest Fear

By Marianne Williamson
From her book "Return to Love"
(Quoted by Nelson Mandela in his 1994 inaugural speech)

Our greatest fear is not that we are inadequate,
but that we are powerful beyond measure.

It is our light, not our darkness, that frightens us.
We ask ourselves, Who am I to be brilliant,
gorgeous, handsome, talented and fabulous?

Actually, who are you not to be?
You are a child of God.

Your playing small does not serve the world.
There is nothing enlightened about shrinking
so that other people won't feel insecure around you.

We were born to make manifest the glory of God within us.
It is not just in some; it is in everyone.

And, as we let our own light shine,
we consciously giveother people permission to do the same.

As we are liberated from our fear,
our presence automatically liberates others.

Friday, July 29, 2005

The Ghost of Congress Past

In trying to draft the current House Rules on Impeachment Procedure, the opposition harks back to the "creeping impeachment" strategy employed when an impeachment complaint was filed against President Joseph Estrada. Essentially, they maintain that the 1/3 vote of the full House obtained at any point during the Justice Committee hearings, and not merely at the time of filing, will be constitutionally sufficient to refer the Articles of Impeachment to the Senate.

The best legal argument in support of this thesis is that since the strategy was used against President Estrada, the administration has no reason to grumble as the beneficiary was the incumbent president herself. The rules that applied to Erap must equally apply to GMA. In other words, what is sauce for the goose is sauce for the gander!

Well, if that is the best argument of the opposition, then they ought to go back to law school.

First of all, the Supreme Court has time and again ruled that Congress can change, adopt or modify their rules anytime. Why? Because these rules are procedural in nature. And according the case of Romulo v. Yñiguez which likewise questioned the impeachment rules in the Batasan, "rules do not have the force of law but are merely in the nature of by-laws prescribed for the orderly and convenient conduct of proceedings."

Second, in the concurring opinion of Justice Tinga in the celebrated "impeach-Davide" case of Francisco, et al. v. House of Representatives, et al., Justice Tinga (whose son is the nemesis of Congressman Cayetano) stated that "Congress has the power to disregard the Rules of its predecessor and to adopt its own Rules". These are elementary doctrinal precepts that the likes of Cayetano, Zamora and Escudero would know about. A freshman law student learns this principle in Constitutional Law within 3 months of entering law school.

But these opposition stalwarts conveniently resort to a "lapse of judgment" in order to fool the unknowing public and accuse the administration solons of delaying the impeachment proceeding since they refused to adopt the Rules of the previous Congress.

There are better arguments I have thought of (which is one article altogether) that can be raised to justify the constitutionality of the creeping impeachment strategy. But to argue they are valid because the previous Congress allowed it shows their indolence and dearth of intelligence. It also implies the lack of serious resolve to impeach the president. The opposition would rather incite the baser instinct of our countrymen rather than appeal to the logic of their arguments.

But the key to justify the creeping impeachment strategy is in the Constitution itself. There is no da Vinci Code or an enigma wrapped in a mystery. And if the opposition cannot find the answer within, all they have to do is but ask the viewpoint of retired Court of Appeals Justice and Constitutional Commissioner Regalado Maambong, the creator and author of the disputed provision. The fault, dear Cheez, is not in the stars but in ourselves, that we are slow to think and abounding in steadfast anger on the president.

The administration is fortunate to have legal eagles like Congressmen Lagman and Nograles. That they can stand down the opposition solons and their specious arguments show they are no Scrooges who are scared to be haunted by the Ghost of Congress Past.

And if the opposition will maintain the same retrogressive reasoning, expect the impeachment to die a natural death. If that happens, the Ghost of Congress Present will forever hound the opposition leaders for missing their date with history. And with that tragedy, Speaker Joe de Venecia will be all smiles and say: "Bah, humbug! On with Cha Cha!"

Thursday, July 28, 2005

The Ennui that is Oscar Cruz

Just when everybody thought Juetenggate was over, Bishop Oscar Cruz comes out blazing and this time, accuses the President of firsthand complicity. Here we go again.

I do not know what script Bishop Cruz is following but he appears to be an avid fan of the Filipino telenovela, bombastic, slow, murky, boring... bombastic, slow, murky, boring. That is not the way to grip an audience. At least, from the little that I know having been a Communication Arts student under Dr. Clodualdo "Doy" del Mundo, Jr., the dean of Filipino scriptwriters who was my film thesis adviser.

I do not understand the pacing of the presentation of his witnesses. There is no continuity to his script. Before the Senate investigation started, Bishop Cruz came out on media saying that there will be witnesses who will testify that the tentacles of jueteng extended all the way to the Palace. So far, with the exception of Sandra Cam, the other witnesses have peddled truths, half-truths, speculations and retractions.

And apart from the explosive sideshow breach of parliamentary protocol by Atty. Frank Chavez, the Senate investigation has been reduced to a zarzuela of senators insulting and badgering witnesses, asking infantile questions without sincere due regard to constitutional rights, pricking egos of resource persons while forgetting the investigation's primary purpose is to propose legislation either legalizing jueteng or stiffening its penalties.

And now that it has been indefinitely suspended, Bishop Cruz has come out with a new bombastic statement linking jueteng to the President, providing a preview or a trailer to his new witness' testimony to substantiate fodder to his charges. I am getting supremely confused. Are we already in the climax, the peripeteia or the denouement?

I hope something good and substantial will come out of this witness' mouth or this investigation. But so far, the investigation has proven to be boring and a downright spectacle. Two things I have learned: (1) the Senate jueteng investigation is an object lesson on how not to conduct a Senate investigation; and (2) Bishop Oscar Cruz is following a bad boring script. The Filipino moviegoers can get better thrills watching Vhong Navarro's horror-comedic flick, D'Anothers. At least, it stands a ghost of a chance at the tills.

If Bishop Cruz wants to have a box office hit, get meatier witnesses or better yet, change his scriptwriter.

Impeachment vs. Charter Change: Structure vs. Attitude

Some flowchart points to ponder on impeachment vis-à-vis charter change:

1. What happens to the impeachment trial of GMA if a new constitution is ratified by the people? Is it halted or does it continue?

2. If trial is halted by virtue of the effectivity of the new constitution without resolving the guilt or innocence of the president, will a "second envelope" scenario possibly erupt and incur the ire of the people?

3. If trial is allowed to continue, under what constitutional cover will it operate? The superseded 1987 Constitution or the newly ratified constitution?

4. If trial is allowed to continue under the new constitutional dispensation favoring a unicameral legislature, how will the opposition justify its continuation when the Senate no longer exists?

5. Is it constitutional for the framers to provide a provision under the Transitory Provisions for the continued existence of the Senate as an impeachment court?

Countervailing the statements of the Triumvirate that Charter change is the solution to the present ills of our nation, Bishop Gaudencio Rosales retorts the obvious contrary: no system will work without metanoia (change of heart).

On that score, I leave you the words of the eminent Harvard constitutionalist, Prof. Laurence Tribe in his book "American Constitutional Law": "For although what might be called the Constitution's presuppositions or its underlying moral logic are themselves subject to change - to "amendment," if you will - such change cannot simply be willed into being through the device of amending the Constitution. It requires a sea change in attitudes, in belief, in systems, in culture…"

Do we have what it takes to succeed?

Wednesday, July 27, 2005

The Triumvirate

The recent political turmoil in the country has given rise to a new breed of leadership putatively shared in common by the has-been, the wanna-be and the queen bee: the triumvirate of FVR, JDV and GMA respectively.

Until the events of 8 July, former President Fidel V. Ramos was lingering on the throes of irrelevance, dishing his views on parliamentary governance to a media that was too respectful to ignore him, criticizing the present dispensation through surrogates like Fortunato Abat, disgruntled old general lost in the political fog of war.

Until the events of 8 July, Speaker Jose de Venecia’s ambition to be a man who would be king was wishful thinking, knowing the only means to reign one day was to amend the Constitution through a stage-managed constituent assembly.

Until the revelation of the Garci tapes and the events of 8 July, President Gloria Macapagal Arroyo was secure in her leadership and immune from charges of corruption, with nary a thought on charter change, confident the economy was on the verge of take-off even as her relatives by consanguinity and affinity were being pounded day in and day out by revelations of jueteng and abuses of power, and her friends and cronies blasted for being witting beneficiaries of government munificence.

Until the events of 8 July, the country was and continues to be the hapless victim of pump price increases, was and continues to be the helpless spectator of a devaluing currency, was and continues to be the powerless debtor of spiraling electricity rates, was and continues to be the witless witness to a diminishing quality of life.

Now, thanks to Tita Cory, the La Salle Brothers, the UP Diliman Community, the Hyatt 10 and the Drilon wing of the Liberal Party, the has-been and the wanna-be have revived their grandiose intentions and like Don Vito Corleone, made an offer to the queen bee which she cannot refuse.

And on that fateful dusk of 8 July, FVR, in crimson shirt, stood by GMA in red, clasping their hands as though sealing their pact in blood while JDV and his sycophants clapped and chanted. The President survived and lived to fight another day!

And now, in payment for a debt of gratitude and bowing to the desires of the two patricians, the president has agreed to charter change and to a parliamentary form of government. She has irretrievably sealed the fate of this country, for better or for worse, in the most vulnerable moment of her presidency. The Triumvirate has begun!

But who will be the last proconsul standing in the triumvirate? And who will be the Julius Ceasar, the Marcus Licinius Crassus or Gnaeus Pompeius Magnus of this troika? Will they plunge the Republic to civil strife? If Roman history is any gauge, only one will survive and consolidate power. And most especially, who among them will cross the Rubicon and mutter “Iacta alea est”- the die is cast?

As with the First Triumvirate, they started out as allies and ended up disposing each other. Let us see how this triumvirate, born of necessity, plays itself out. As they say in Tagalog: “Abangan ang susunod na kabanata!

Monday, July 25, 2005

Hobson's Choice

She did not come to disappoint …. at least to her savior, former President Ramos.

One of the most applauded but anticipated part of her SONA was the proposal for Charter change, from a would-be President Noli de Castro to an almost certain Prime Minister Joe de Venecia.

The president's announcement could not come at a worse time for the country. In a short span of less than a month, she issued forth two proposals: first, the Truth Commission and second, Charter Change. There is logic to the purpose of her proposals: to divide, confuse and obfuscate our countrymen and lead them away from the people's true choice: impeachment.

Her first proposal was the formation of a Truth Commission. Supposedly to ferret out the truth of the Garci tapes and election fraud, the president also demands as a quid pro quo the identities of personalities seeking her destruction and of the office of which she sits.

Her second proposal is to change the Constitution through a constituent assembly, specifically, from a presidential to a federal cum unicameral system of government. Its laudable purpose is to decentralize and defuse economic and political power from the tyranny of Manila.

But these two proposals are unwise for the following reasons:

First, the costs. The expense of sustaining the Truth Commission will likely run to tens, possibly hundreds, of millions if its mandate is to investigate electoral fraud and identify the conspiracy. That would mean the opening and tediouis review of a multitude of election returns down to the precinct level, not to mention the gathering of other testimonial and documentary evidences. That alone would take months to undertake. And the commissioners would have to rely on a secretariat employing hundreds of people who should be familiar with electoral law and its processes. Otherwise, the Commission would be reinventing the wheel.

In the Constituent Assembly or Con-Ass, I heard, rightly or wrongly, Speaker de Venecia saying that a Con-Ass would only cost 9 billion pesos, a lot less than a constitutional convention, as if it was chump change. But listening to the SONA, the President earlier mentioned she shepherded the enactment of the not-so-"masa"-friendly EVAT to address precisely the fiscal imbalance of our government expenditures so that our children's children would not have to pay our present debt.

And so, where will she get the money for both proposals? Does the president, instead of paring down the budget deficit, now intend to apply the proceeds from these taxes to fund both the Truth Commission and the Constituent Assembly? If that is so, the SONA is inherently inconsistent and at war with itself.

Second, these two proposals are innately divisive. In the Truth Commission, whatever truth to be unearthed will never fully satisfy the administration or the opposition because its purpose is not to heal our land but to lay blame and find fault on the perpetrators of fraud. Its recommendation will ultimately demand a pound of flesh on the guilty party.

In charter change, proponents believe that the present system is radically flawed and needs a structural overhaul. Opponents hold that the present system can be institutionally improved through novel ideas, better laws and a firm political will. In addition, the very idea of constituent assembly is anathema to ideologues who believe that a constitutional convention is the preferred mode of charter change to prevent the present powers from deriving benefit from it.

These are the two proposals that the President has foisted upon us. Given our country's present fiscal chaos, the President, being an economist, should have offered economic solutions to our economic difficulties. But the solutions she proposed are not even economical. Instead, she offers political solutions to a political quagmire of her own making, political solutions meant for her political survival. And that is what makes the two proposals a Hobson's choice.

Sunday, July 24, 2005

The One-Year Itch

I received an email from Jimmy, our resident Einstein in high school. After reading the first installment on the impeachment primer, he wanted to know if the United States Constitution also contained a one-year prohibition on a succeeding impeachment complaint.

There is no similar provision in the U.S. Constitution. In fact, the United States Congress tried to impeach a sitting president twice within a span of one year.

Andrew Johnson was a Democratic senator from Tennessee, a state that seceded from the Union at the start of the American Civil War. He was the only Southern senator who did not resign from his seat. In 1864, forming a unity ticket, the Republican Party chose him to be Abraham Lincoln's running mate and won. 5 days after General Robert E. Lee surrendered, Pres. Lincoln was assassinated and he succeeded Honest Abe to the presidency.

As a Democrat from the South, he had ideological clashes with the Republicans that preferred a different policy in integrating the former Confederate States to the Union. As a result, the Republican Congress investigated Johnson for various impeachable offenses. In November of 1867, the House Judiciary Committee voted to impeach him by a vote of 5-4. However, the full House refused to impeach him.

But the Radical Republicans were determined to remove him from office. In August 1867, President Johnson demanded the resignation of Edwin Stanton, Secretary of War, an ally of the Radical Republicans. Mr. Stanton refused on the ground that the Tenure of Office Act required Senate approval for his resignation. President Johnson later suspended him but Congress rejected the suspension.

On 21 February 21, 1868, President Johnson removed Mr. Stanton from office. 3 days later, the full House impeached Johnson by a vote of 126-47. He was the first US president to be impeached. But by one vote, President Johnson was dramatically acquitted in the Senate impeachment trial. Thus, in a span of one year, the House tried to impeach a president twice.

The Johnson impeachment trial resulted to numerous analyses on the effect on the American presidency and the abuse of Congress' impeachment power. However, none seemed to propose a prohibition period to avoid the Johnson conundrum.

In drafting the 1987 Constitution, the Committee on Accountability of Public Officers chaired by Mr. Christian Monsod, a proponent of the Truth Commission, proposed a one-year ban on succeeding impeachment proceedings. This was a novel provision not found in both the 1935 and the 1973 Constitutions. Its purpose was to protect the official concerned from further harassment.

While the one-year constitutional ban is laudable, it has, however, spawned a number of unintended consequences.

First, a frivolous impeachment complaint can be filed by a presidential cohort and later dismissed by the president's men in Congress, thereby preventing the filing of a more substantive impeachment complaint immediately.

Second, assuming the president has committed acts constituting betrayal of public trust, bribery or abuse of official power, the one-year ban will allow him to continue in office with impunity, raid the national treasury or install cronies in positions of influence and power. This runs counter to the main purpose of impeachment which is to immediately remove the president and to prevent the further subversion of the constitutional order.

Third, with the Answer filed by the President, Congress will be constrained to rely heavily on the Rules of Court to address technical issues. As a result, the impeachment process will not only be delayed but the fight becomes one of form than of substance, making it alien and less intelligible to the people whose frustrations may well up and lead to the streets once more.

Without the one-year ban, the Lozano complaint would have been thrown into the dung heap. The more substantial Zamora complaint sans technical issues could have been filed by Monday and the fight would have been on.

The president need not worry about harassment especially if there is no factual basis to the suit. The business of government can continue since the president can delegate her defense to the lawyers and to her allies in Congress. If government cannot continue, what then is the purpose of constitutional succession? It is not a fair-weather mechanism. It is precisely in place to address dark times.

But the one-year ban makes lethal the continued stay of a corrupt president in power. And the more the president stays in power, the more probable an extra-constitutional grab can occur. And that is a political limbo our country must not be allowed to suffer. To paraphrase the High Priest, it is better to impeach one man than for the whole nation to perish.

Truly, the road to constitutional hell is paved with good intentions.

The Seventh Day

And God rested on the seventh day.

To most of us, Sunday is a day of rest and recreation, spending time with our families, watching movies or pirated DVDs, catching up on weekend chores, bumming around the house, reading up on books, play pick-up sports and devoting an hour for Sunday Mass or church service.

In Exodus 20, we are reminded by the 3rd Utterance “Remember to keep the Sabbath day holy”. For the Jews, it meant a total stoppage from work. When he was running for Vice-President of the United States, Sen. Joe Lieberman, a Jewish senator, refused to campaign on the Sabbath day.

For Catholics and Christians, the “no work” policy is not rigidly observed since Jesus himself justified the plucking of corn by his disciples and declaring that the “Sabbath was made for man, and not man for the Sabbath”.

When we are told to keep Sunday holy, it does not mean wearing sack clothes or long faces, or praying for long hours before the statues of Our Lady or the saints, or reading the Bible from cover to cover, or showing off how much we are blessed and how woeful is the fate of a non-believer.

To be holy means to “set apart”. We turn from our work and set apart Sunday for God. It means turning from the pursuit of capitalist values in the marketplace and remembering the bountiful goodness of God and thanking Him for that.

During the Manchu dynasty where Chinese coins had square holes in the middle, a rich man was once walking down a street. His wealth was audibly heard because the coins, which were looped together by a small rope, were jingling from his waist belt. Upon hearing the passing of the rich man, a beggar approached him for alms. Taking pity on the man, the rich man gave him 6 gold coins leaving one for himself. No satisfied with the six, the beggar followed the rich man and tried to steal the last coin from the rich man.

God gave us six days to enjoy life for ourselves, to conduct whatever pleasures or work we so prefer. He only asks for one day out of seven for Himself and sometimes, even that, He is deprived.

Let us keep the Sabbath day holy by taking time off from the bustle of busyness, by turning our thoughts from the secular to the divine, by realizing the here and now is a passing fancy and eternity is what matters. And in that belief, leading lives of righteousness in relation to others confident with the belief that everything works for the good, inspite the present realities. And most especially, thanking God that He became man in order that we might become god. With that worldview, maybe we can make the rest of the week holy just as well.

Being holy is not external religiosity. Being holy is a mindset, an attitude, a lifestyle, if you will. And knowing that, we may excel as the king's good servants, but above all, we are God's first. Amen.

Saturday, July 23, 2005

Dog Day Afternoon

Come Monday afternoon, 25 July 2005, anybody who is somebody in government will be invited, nay, required to attend the State of the Nation Address by the President.

It seems everybody is looking forward to the SONA, even those who have expressed their non-attendance. Senator Ping Lacson gave his alternative T(rue)SONA which was more of the same privilege speeches he dishes out regularly in the Senate. Others will be interested in what the SONA will contain, what it will promise or how it will disappoint.

The pro-GMA bloc will hear our country attaining the highest growth rate in Asia, excluding China and India; the numerous public school infrastructures built, the increase in tax collections, and a host of marvels that this administration has achieved in the past year. They will also hear the economic and political reforms that are underway and forthcoming. On the other hand, some or all the pro-GMA senators cannot wait to let the SONA end and start the Machiavellian surgery of Senator Drilon from leadership.

The Opposition, in turn, will yawn and moan on the soporific and kilometric perorations of this lying, cheating and stealing head of state whom they cannot wait to remove from office. Some of them will do the obligatory clapping but most of them will be nodding their heads in disdain, disagreement and disbelief. They will be the epitome of what William Safire calls "the nattering nabobs of negativism". The sectoral representatives will exert their best efforts at cordiality though they are not known for their civility.

The bishops and businessmen will be looking forward to seeing some meat to a truth commission that everyday becomes less and less the commission they proposed, farther and farther from searching for the truth and nearer and nearer to a blame-gaming commission.

The judiciary will be there only because it seeks to pay homage to a co-equal and coordinate branch of government but could not care less as they are fiscally autonomous from the Executive Department.

In the meantime, to emphasize the seriousness of the SONA, the Palace declared Monday as a non-working holiday in order for the citizenry to listen to the SONA. That is the official line. The unofficial line, of course, is to assist the jobless get employed as members of the "hakot" crowd and to prevent the one hundred thousand people, as promised by the left, from gathering at the Batasan to protest the SONA and the President.

Even the President can not wait for Monday to come. She has been practicing her speech with more fervor than her "I am sorry" spiel, spent sleepless nights discussing and haranguing her speechwriters for the best soundbyte, jogging in the treadmill and preparing herself mentally for what could perhaps be her "finest hour".

Come Monday, the battle lines will be drawn. A line has been drawn from which there is no turning back unless God hears the cries of Cory and the La Salle Brothers for GMA to resign. I highly doubt that though. After all, God proposes, man disposes.

The afternoon of 25 July 2005 will be the hottest day in a long summer of discontent in the lives of many Filipinos who long for resignation, for impeachment or for the status quo. But as always, hope springs eternal. Let us remind ourselves that the SONA is nothing more than a laundry list of promises and self-accolades. It is not something to spill blood over or to die for.

Friday, July 22, 2005

GMA WARS: Episode Two - The Attack Of The Judges

In 2000, when then Congressman Manuel Villar surreptitiously but prayerfully referred the Articles of Impeachment to the Senate, he set in motion for the first time the role of the Senate as an impeachment court. There were a host of issues to be resolved.

During the debates on the Senate's role on impeachment by the 1986 Constitutional Commission, Commissioner Felicitas Aquino wanted to transfer the impeachment court from the Senate to the Supreme Court because she believed that that while impeachment is a judicial proceeding, it was controlled by political forces. This is a euphemistic way of saying that justice may never be achieved since the senators are bound by party affiliations and loyalty and not necessarily, to the evidence presented. While her dim view of the Senate as an impeachment court holds currency now more than ever, her proposal was roundly rejected on the beliefs by Commissioners Christian Monsod and Blas Ople that the provisions on impeachment, in and of themselves, were already effective deterrence. Thus, the Senate was retained as the court of impeachment.

Having no experience in impeachment cases, the Senate never saw fit to promulgate rules of impeachment procedure until the Eraption. As its reference, the Senate used the US Senate's Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.

Our senators drafted the rules by substantially copying the US Senate's except on three major points: First, the Senate dropped the US senate provision on the formation of a Senate committee to receive evidence and take the testimony of witnesses. For expediency, it was necessary for the US Senate to form a committee since they have 102 senators (2 senators from each state) and in order to prevent an unwieldy situation from arising. In our jurisdiction, since they are a mere 24 senators, they can easily hear testimonies directly and receive evidence;

Second, when any senator moves for a formal vote on any question involving issues on evidence, the proponent and the protestant are allowed to explain their positions for two minutes and a one-minute rebuttal is accorded them. In the US Senate, when a senator moves for a formal vote, the whole senate votes without debate.

Third, the US senators are not allowed to verbally propound questions to the witnesses. All questions were to be in writing and to be submitted to the Chief Justice who, in tun, will ask the questions. In the Philippines, the senators can ask questions directly to the witness with a two-minute time limit. While the purpose of this rule was to hasten the proceedings, the Erap impeachment trial, if anything, showed us this rule was a marvelous opportunity for some senators to grandstand and parade their intellectual prowess, badger the witnesses, and reveal their Cindy Lauper, or rather their, true colors.

Oh, another minor difference between the two bodies is the Protestant work ethic of the US Senate. Under their rules, the impeachment court sits from Monday to Saturday while our senate deemed it unholy to work on a Saturday.

Another issue to be resolved was what standard of proof will the senators need to make a judgment. Will the standard of proof beyond reasonable doubt be applied as in criminal cases? Or will it be preponderance of evidence as in civil cases? Many commentators hold the view that an impeachment trial is not criminal in nature since the sole penalty is removal from office. Moreover, a criminal case may be pursued subsequent to removal. Therefore, not being in the nature of a criminal case, the lofty standard of proof beyond reasonable doubt cannot be applied.

The US Senate has never employed any uniform standard of proof. It has been said that each senator must find in his own conscience the standard that would satisfy him and that an "overwhelming preponderance of evidence" standard be employed to adjudge the defendant.

Our Senate has likewise skirted the issue. We have no basis of knowing from the Erap impeachment trial what standard the senators might have used but one thing is certain: the procedural rules on impeachment are silent on the standard of proof thus, leaving each senator to use prudence, conscience, bias, pride, prejudice, blood money, patronage or hopefully, truth to guide his judgment.

There are other issues yet to be discussed, one question raised in the Blogs of the Round Table was whether the senators were judges or jurors. This will be discussed in the next episode. In the meantime, feel free to propound questions. I will try to avoid answering them. He he he

(Next - GMA WARS: Episode III - Revenge of the Truth)

Pajamahadeens Rising

Q: What do you call a blog gathering of a political commentator, a feline, and four lawyers? A: A good start.

Indeed, it was an initiation to the world of blog chats. Manolo suggested to a number of people the idea of blogging and giving commentary on the current fad in Philippines politics: impeachment. And so Sassy, Marvin, Punzi, the CaT and I said yes and pretty soon, we were on our way to making small history in Philippine blogging.

We discussed impeachment and a whole lot of stuff. We also learned to be creative in hurdling technical difficulties by reverting back to pre-internet technology that is called the telegram. Over all, the time was short. I am sure the next time around, there will be more participants who will enrich us with their knowledge and points of view. A transcript of our recently concluded chat is linked here too.

Blogging is a big phenomenon in the US. They played a key role in bringing down former Senate Majority Leader Senator Trent Lott after he made a racist comment during a bash in honor of the retiring Senator Strom Thurmond. The bloggers also questioned in minutest detail Sen. John F. Kerry's Vietnam experience which in no small measure contributed to his defeat to George W. Bush.

But the most significant impact the bloggers made which is now considered a watershed event in the diminishing influence of Mainstream Media or MSM over the American people was during the 2004 presidential campaign when the bloggers questioned the authenticity of the Killian documents. The Killian documents were letters allegedly written in the 70's by Lt. Col. Jeremy Killian, superior oficer of George W. Bush, purportedly showing that George W. Bush was given preferential treatment when he applied for and while doing his tour of duty with the Texas Air National Guard in order to avoid serving in Vietnam. Dan Rather of CBS, one of the monoliths of MSM, exposed these documents in his show, 60 Minutes Wedndesday.

However, within 72 hours from broadcast, the bloggers were able to build a case that the documents were forgeries. In fact, it was a lawyer blogger who noticed that the fonts in the Killian documents were Times New Roman fonts created by Microsoft, the software giant that was not yet in existence during the 70's. CBS refused to be cowed by the mounting evidence gathered by the bloggers and held out for two weeks until Dan Rather issued his non-apology apology and said that it was a lapse of judgment. Sounds familiar? He later resigned and is now retired from CBS News.

During those two weeks that CBS refused to recant, Mr. Jonathan Klein, then Executive Vice-President of CBS New was reported to have derisively compared the high journalistic standards at CBS with the bloggers by this comment: "You couldn't have a starker contrast between the multiple layers of check and balances (at CBS), and a guy sitting in his living room in his pajamas writing".

In response to Klein's comment and in total self-deprecation, a blogger, Little Green Balls, coined the word "pajamahadeens" by combining the words "pajama(s) & "(muja)hadeen" in their satiric blog contesting the authenticity of the Killian Documents. Since then, the name has stuck and has come to mean a "political blogger".

Nowadays, MSM can no longer deny the power of the bloggers. Even MSM practitioners have come out blogging, chief among them is Jove Francisco of ABC5's The Big News. In fact, I would surmise and Jove will confirm this statement that more people surf his blogsite than watch Channel 5's news program. By the way, Jove, congratulations for being the Pinoy Blog of the Week.

The force and effect of the pajamahadeens inthe Philippines is still to be felt but at the rate Manolo and Sassy are getting numerous hits everyday, MSM will have to hold another summit to discuss the symbiotic or supplementary or diminishing role of the MSM. Right now, the big media conglomerates are safely esconced in their fiefdom. But as Filipinos get better access to the internet and unless they realize the power of blogging, that day of mourning may come to pass. In fact, these six pajamahadeens mayhave just created a new media paradigm.

Caveat ABS-CBN et GMA7.

Thursday, July 21, 2005

GMA WARS: Episode I - The Impeachment Menace

Now that impeachment is upon us, it would do well to educate ourselves what impeachment is all about. Impeachment is found in the 1987 Constitution under Article XI - Accountability of Public Officers.

For starters, impeachment is a constitutional mechanism whose sole purpose is to remove the diseased element in government and to prevent further abuse of power. Impeachment was originally conceived and applied in England and its penalty was not mere removal. It included incarceration in the Tower of London or on occasion, beheading. But when the Americans copied it from the British, they limited the sanction of impeachment to removal from office. Of course, since we Filipinos have a mental colony or rather, colonial mentality, we substantially copied the US constitutional provisions on impeachment.

As a removal mechanism, our Constitution limits impeachment to the following government officials: GMA (President), Kabayan (Vice-President), Chief Justice Hilario Davide and the brethren (Supreme Court), Constitutional Commissions such as Chairman Abalos and the other COMELEC commissioners (COMELEC), Mrs. [Karina?]Constantino-David (Civil Service Commission), the Commission on Audit and Simeon Marcelo (Ombudsman). The rest of the bureaucracy is removed in accordance with law.

As grounds for impeachment, an officer can be removed for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. These are what we call impeachable offenses. While there are specific definitions to each impeachable offense, the single thread connecting all these offenses, according to Harvard Law Prof. Laurence Tribe, is that the offenses must "entail subversion of the constitutional order or involve serious abuses of official power". And when the Constitutional Commissioners of the 1987 Constitution were debating on the definition of betrayal of public trust, they deliberately excluded habitual drunkenness from its scope. Apparently, prescience was not one of the better talents of Fr. Bernas and the Commissioners. Otherwise, we need not have gone to the streets and do an EDSA DOS. The senators could have just convicted Erap of being an habitual drunkard and promptly removed him from office. No need for the second envelope. But as always, hindsight is 20/20.

Thus, not all crimes committed by the President can be a ground for impeachment. For instance, during the House Judiciary Committee hearings on the Watergate scandal, the committee members rejected as an article of impeachment the charge that Nixon submitted falsified tax returns in violation of federal criminal laws. In a much earlier case, Vice-President Aaron Burr was not impeached for murdering Alexander Hamilton in a duel. If anything, the American experience would show that criminality is not synonymous with impeachability.

As to how it is commenced and pertinent to the Philippine situation, impeachment is commenced in two ways: (1) if a sworn impeachment complaint is signed by at least one-third of all the members of the House of Representatives. This is the shorter method; or (2) any person (including Attys. Lozano and Pamatong) or any congressman files a sworn complaint before the House of Representatives alleging the impeachable offense or offenses committed by the President.

As a procedural barrier and protection against baseless suits, an impeachment complaint can be entertained only once within a period of one year from filing. This constitutional provision was elucidated further by the Supreme Court in the impeachment case against Chief Justice Hilario Davide.

After the complaint is filed, it is referred to House Committee on Justice which will evaluate the charges. Based on news accounts, the opposition has prepared several charges as grounds for impeachment. The mandate of the committee will be to winnow the chaff from the grain. In other words, it will determine whether the facts so alleged in the complaint do constitute an impeachable offense. Thus, not all the charges filed may be approved. In the Clinton case, 11 charges were brought by Kenneth Starr against Mr. Clinton but only 4 charges were approved by the House Judiciary Committee to become the Articles of Impeachment. As an interesting aside and in our jurisdiction, it was during the Justice Committee hearings on the Erap impeachment complaint that we first heard the mellifluous but malefascent voice of the congressman from Maguindanao, Mr. Digs Dilangalen, of the eventual "SHUT UP SHUT UP" fame. I understand Manolo has in his possession a wiretapped conversation between the former President Estrada and Digs.

If warranted by a majority vote of its committee members, it will refer its report to the House which will calendar the resolution and the Articles of Impeachment for deliberation. A vote of one-third of all the members of the House will be required to approve the impeachment resolution which will become the Articles of Impeachment. Once the required vote is secured, the President is considered impeached. Subsequent thereto, the Articles of Impeachment are endorsed and sent to the Senate for deliberation and trial.

(Next - GMA WARS: Episode II - The Attack of the Judges)

Wednesday, July 20, 2005

Arrogance Revisited

With government espousing the virtue of the unTruth Commission and the opposition bashing it as a deliberate distraction, the brouhaha over the constitutionality, legality, composition of the Commission and its unintended consequences have crowded out two strikingly similar news items that cast a bad light on the legal profession.

I am referring to the unleashed Doberman (pardon the slur on the canine) of the Arroyo administration, Justice Secretary Raul Gonzales and the self-righteous Scribe, Atty. Frank Chavez. These two men have cast the first stone believing they are without sin.

Justice Secretary Gonzales had the gumption to lecture the adopted Mother of this nation. He counsels Mrs. Aquino, rather than minding the affairs of the State, to just mind Kris Aquino whose life and pursuits of true love have led her to dizzying heights of public humiliation and embarrassment. While he may not be the first person to express a rationalization of that sort, it does not behoove a government official, a Justice Secretary at that, to utter in public derogatory statements which do not in anyway rebut the arguments of Mrs. Aquino's call for GMA's resignation. His statement was unadulterated argumentum ad hominem and his abject purpose for decimating Mrs. Aquino's political capital was to show that he can be as petty and as nasty as Cristy Fermin, not to mention that Mr. Gonzales will wager his soul to the devil if only to please the President.

But we should have known better. This was not our first exposure to his arrogance. It knows no bounds and brooks no authority. After all, was this not the former Tanodbayan during the Aquino administration who disdainfully clashed with the Supreme Court and to be stripped of his license to practice law? Perhaps, the Supreme Court may be regretting or not their decision to reinstate him to the Roll of Attorneys but I am quite sure that the late Chief Justice Teehankee must be turning in his grave as we speak.

And how about Mr. Frank Chavez? He declared before all and sundry that he would rather be held in contempt by the Senate than be held in contempt of justice. Nice prose but whatever did he mean by that? If he was being true to his statement, was it not contemptuous of justice for the mother, Senator Loi Estrada, to insist repetitively on Mr. Mosqueda to disclose his bank accounts? Was it not contemptuous of justice for the son, Senator Jinggoy Estrada, to badger and shout at Mr. Mosqueda even if the questions of both the madonna and son were bordering on contemptible inanity?

Mr. Chavez may be right to be indignant at the sarcastic line of questioning by Senator Gordon but what is sauce for the goose is sauce for the gander. Surely, he employs the same tone when cross-examining witnesses to test their credibility. After all, we lawyers are trained to seek the truth through adversarial confrontation. Sen. Gordon will be diminished as a proud product of the Diliman law school if he did not do what he did to Ms. Sandra Cam. Atty. Chavez should have realized that not only did he insult Senator Gordon but he held in contempt the hallowed Senate even if its present members fall short of that great legacy. And for a former Solicitor General of the Republic to disregard such obvious nuance, that is indeed contemptuous!

But what of their penalties? Mr. Gonzales still heads the Justice bureaucracy but word has it that the Queen of Hearts has only but to say "Off with his head" that the president would have gladly acceded to. On the other hand, Atty. Chavez was merely given a slap on the wrist when the Senate banned him from appearing as counsel in any investigation before the Senate. Big deal! But hold on, will this prohibition apply in the coming impeachment trial where the opposition may not be allowed to avail his services as a private prosecutor? Tsk tsk tsk. If that is so, this would be the second time in impeachment history that Atty. Chavez would fail to dazzle us with his brilliance and/or baffle us with his b.s.

The ungentlemanly arrogance of these two lawyers are an unfair reflection on the legal profession. Their conduct brazenly displayed for all to see are the exceptions rather than the rule although the public may not believe it. But whether the public believes it or not, we lawyers must remember that law is a profession steeped in history, nurtured in civility and tact and sharpened through wit and sarcasm but always mindful that we are a band of brothers (and sisters) and learned gentlemen (and women) of the old school.

These two men have forgotten the nobility of our profession.

Tuesday, July 19, 2005

Stealing the Opposition's Thunder

And so it begins!

GMA just announced the formation of the Truth Commission which was meant to appease the bishops in return for not demanding her resignation. But is it that simple? I previously suggested that the truth commission would be a Trojan horse against the President. It is the other way around.

The president has offered the Truth Commission as a venue for investigating vote fraud. Does this mean that the members are going to inspect each and every disputed election returns? If that is the case, how can the Truth Commission be a prelude to the impeachment case when it may take months for the members to cull through documentary evidences, not to mention testimonial evidences which may be genuine, spurious or planted. This is the classic "one step backward, two steps forward" strategy. Show flexibility by proposing the truth commission, at the same time muddle the public to believe that the truth commission is a necessary ingredient to impeachment. Or in the alternative, assuming the Truth Commission and the Impeachment Court co-existed, what happens to the commission if the senator-judges acquit the President in the impeachment case? Does it continue its mandate to investigate knowing that the President could no longer be tried twice for the same offense of vote fraud? And if it does, won't its findings be moot and academic? Like a been there, done that?

In the meantime, the President is supremely confident that whatever fraud that will be discovered will not be linked directly to her or will not alter the outcome of the election. The President has foreknowledge of the outcome. Otherwise, she would not have consented deliberately. Why the certainty? Because the wimpy members of civil society have vanished from her roost, the hawks have taken over counsel and there will be never be a second lapse of judgment. For all intents and purposes, this commission may suffer the same fate as the Agrava Commission.

And come SONA time, after the President shall have entered the halls of the Batasan, shaking the hand of Quisling who cut her deeply, counting and marking the many Brutuses in her midst with daggers concealed in their togas, she will deliver yet her finest and most dramatic State of the Nation Address of her presidency. She will announce a series of bloodletting by banishing people in government who are close to her husband, offer a hand of friendship to the opposition and to the Iscariots in attendance, advocate charter change that hardly resembles FVR's blueprint, state boldly that she is ready to dance to the impeachment tune, and promise that come hell or high water, she will lift high the Filipinos and their spirits from this ever present darkness. And to show her utmost sincerity, she will parade her Scutnicks to emphasize the the measure of her resolve.

Of course, these are all wishful thinking but not entirely remote. After all, while the President has lately been silent, brooding her every move, the opposition has been telegraphing their impeachment strategem to the public. This coming SONA, the President intends to steal the thunder from the opposition and when the battle lines are drawn, the opposition might find itself a spent force.

Where is the Grand Opposition that we used to hail? It is high time to conjure the spirits of Lorenzo Tañada, Joaquin Roces and Ninoy Aquino.

Monday, July 18, 2005

The Garci Tapes: Damnum Absque Injuria?

From the moment the Garci tapes were revealed by Messrs. Paguia and Bunye, everybody concluded those tapes which were surreptitious recordings of cellular phone conversations of Commissioner Garcillano ("Garci") with other people violated R. A. No. 4200 or the Anti-Wiretapping Act.

What are the undisputed facts? First, the military intelligence (despite their protestations) recorded the cellular phone conversations of Garci with the President. Second, the distinct voice of GMA is audibly heard. And, third, the recordings were not authorized either by Garci or GMA. Ergo, the tapes are in violation of R. A. No. 4200 and is inadmissible in evidence.

I do not think it is all that simple. And here lies my doubts.

R. A. No. 4200 was enacted on 19 June 1965 under the able defense of the late, great Senator Lorenzo Tañada, the lolo of Congressman Erin Tañada of the Drilon wing of the Liberal Party. Under the law, the crime of wiretapping is committed if an unauthorized person taps the wire or cable, or uses a device to secretly overhear or record oral or private conversations, or possesses, distributes the tapes or replays the recording.

It must be remembered that at the time of its enactment, there were no wireless cellular or cordless phones in existence. Since no such equipment existed, R. A. No. 4200 could not be stretched to include "wiretapping" of cell phone conversations. In addition to this, in 1986, the Supreme Court, in the case of GAANAN v. INTERMEDIATE APPELLATE COURT, defined "device" to secretly overhear or record conversations as an instrument that taps the main line of a telephone. In other words, R. A. No. 4200 was envisioned to apply only to telephone lines or what we call now in this wireless age as "landlines". The law is silent on cordless and cellular phones

Some may say this argument hew too closely to the letter of the law and that we should interpret the law broadly by invoking the spirit "that giveth life". In other words, while it is admitted that R. A. No. 4200 does not cover "wiretapping" of cellular phone coversations, a violation stil exists because the intent of the law is to prohibit wiretapping or illegal recordings of conversations. That is a misapplied invocation of the spirit of the law because R. A. No. 4200 is a substantive criminal statute. The acts and elements of the crime must be specifically stated. If not so stated, then there is no crime. Actually, the term "wiretapping" as applied to cell phones is an oxymoron because there are no wires to tap in the first place.

Moreover, the common understanding in criminal law is when there is doubt as to its application, it must be resolved in favor of the defendant. If one applies the spirit of the law in this case, one will not giveth life but killeth and "imprisoneth" the defendant. One cannot invoke the spirit to convict when the letter acquits.

But beyond statutory construction, the American experience on wiretapping laws is persuasive. The first law on wiretapping enacted by the US Congress was the Communications Act of 1934. However in response to several US Supreme Court decisions on the admissibility of evidence of wiretapped communications, Congress enacted the Federal Wiretap Act in 1968 which prohibited the willful intercept of telephone or oral conversations.

With the advent of new technology, the definition of oral or wire communication under the Federal Wiretap Act led the courts to struggle whether portable telephones and mobile telephones (cellular phone predecessor) were covered under the Federal Wiretap Act. To solve the silence governing mobile phones, Congress passed the Electronic Communication Privacy Act of 1986 which specifically included cellular phone conversations within the prohibition. And again, to solve the silence governing cordless phones, Congress passed the Communications Assistance for Law Enforcement Act in 1995 and further amended the Federal Wiretap Act. With these amendments, the law prohibited the unauthorized intercept of the broadcast portion of cordless and cell phone conversations. Based on the American experience therefore, it would appear that the intercepted cell phone conversations are not covered by R. A. No. 4200.

What then is its legal consequence? Since the tapes do not violate the Anti-Wiretapping Law, they do not fall under the doctrine of the "fruit of the poisonous tree". Simply stated, it can not be excluded as inadmissible evidence. This is crucial because in the 2001 US case of BARTNICKI v. VOPPER, the Federal Supreme Court held that recordings of illegally intercepted cellphone conversations may be aired in public because the contents are a matter of public interest but nontheless, the tapes can be excluded as evidence since they were illegally recorded. In our case, since the tapes did not violate R. A. No. 4200 and apart from possible misfeasance by the President which is a matter of public interest, the prosecutors will no longer belabor the issue of admissibility of the Garci tapes. Of course, the defense will move heaven and earth to exclude those tapes.

I believe that the Garci tapes is a situation of damnum absque injuria which literally means "loss without unlawful conduct". GMA and Garci were definitely damaged by the revelations in those tapes but since illegal cell phone intercepts are not covered by the Anti-Wiretapping Act, no unlawful conduct was committed.

But whatever position you find yourself to be in, it is undeniable that R. A. No. 4200 is still mired in the days of RETELCO and is scratching to be amended and updated. And I hope it will not take the legislators another wave of technological advances before they decide to amend the law. But wait a minute, if they do decide to amend R. A. No. 4200, would that not be an admission that cellphone conversations were not covered by the prohibition in the first place? It must be tough being an administration solon.

Saturday, July 16, 2005

The Return of the CJ

Come 20 December 2005, Chief Justice ("CJ") Hilario Davide shall retire from an illustrious and remarkable judicial career. But not before making history that even the late Chief Justice Claudio Teehankee, Jr. or Chief Justice William Rehnquist of the United States Supreme Court could ever conceive.

For one, Mr. Davide shall have been the only chief justice ever to preside and play front and center role in the impeachment of two presidents, Mr. Joseph Estrada, and as things are going and barring any political shenanigans, Mrs. Gloria Macapagal-Arroyo. Chief Justice Rehnquist presided in the Clinton impeachment trial and could only write about President Andrew Johnson's impeachment case.

Second, thus far, Mr. Davide is the only sitting chief justice ever sought to be impeached by some unenlightened members of Congress who felt that the judiciary needed to be fiscally disciplined. Only to be told by his judicial confreres to back off and study their constitution and case law further.

It would be interesting to see how CJ Davide will conduct himself in the Arroyo impeachment case. While he comported himself admirably in the Erap impeachment trial, he would nonetheless have picked up a few lessons here and there from his initial experience to avoid the same pitfalls in the second impeachment case.

One thing that comes to mind is that he ought to exercise a firmer control over the senator-judges in the manner by which these jurors conducted themselves in questioning the witnesses. As one who presides over the trial, he should not hesitate to impose his style and leadership on them. Lesser mortals would have copped out over some senators' "long and winding" speeches but CJ Davide must strip them of air time, if neccessary.

Another thing is that he should avoid and prevent another walkout by the prosecutors. The conduct of the prosecutors was not condemned by the public only because of the justifiably perceived bias exhibited by the pro-Erap senators in refusing to open the second envelope. However, as a court decorum, what they did was an insult to the CJ himself and to the judicial system. More so, when there was a previous setting for the next hearing and they refused to continue with the proceedings. In any court of law, that would have been contempt.

Apart from these seeming displays of a less-than-firm hand, we hope Mr. Davide would reflect on his missteps and guide the second one to a less agonizing and less zarzuela-like atmosphere for the sake of all Filipinos and to prove wrong those naysayers that impeachment is a long, tedious and contentious process.

But here is the catch. What if the administration is able to delay the whole proceeding to a point that CJ Davide would have to retire in the midst of the trial? Surely, under the Constitution, the new CJ would have to take over but would GMA appoint his former consiglieri , Justice Antonio Carpio or Justice Artemio Panganiban who engineered her ascendancy to the presidency but whose mentor is Jovito Salonga or will she follow the seniority rule and appoint Justice Reynato Puno? The Chief Justice may have no vote in the impeachment trial but the appointment would make another round of political hay.

And here is yet another conundrum for GMA. Right now, the administration gloats because the opposition is in shambles and does not have a unifying figure to rally around. Susan Roces refuses to be tempted by the fruit of the garden of evil. Cory Aquino refuses to participate along with the present opposition and their ilk lest their odiousness taint her credibility. And she has not called on her yellow army to swarm the streets. Brother Eddie Villanueva is preaching to the choir. The Vice-President has closed ranks with the President. FVR and JDV are seen as political opportunists. Senator Drilon has lost credibility within his fellow Liberal Party members and among Filipinos who still regard loyalty as "primus inter virtues" in politics. But nobody ever considered Chief Justice Hilario Davide as the next man that can govern the country.

And yet, he is the last man standing with sufficient moral gravitas to demand political cleansing and regeneration. What if his fellow Cebuano, Cardinal Vidal, the bishops or Mrs. Aquino was able to persuade him to make the supreme sacrifice of cutting short his judicial service and lead the Filipino people out of the valley of the shadows. That would have been an earthshaking moment for this administration. People would have gladly gone to the streets the third time around to install a morally and ethically upright man to govern our nation. By then, who would have cared about the constitutional processes and the rule of law when you have the reincarnation of Cincinnatus in our midst.

We do not know if another round of GMA intransigence would arise but if the next swell comes, it would do well for all men of goodwill to sacrifice their ambitions and to rally around the Chief who by then may no longer be one. Who knows, Hilario Davide maybe our last great brown hope but if he becomes the leader of this nation, I am sure he will better our instruction.

Friday, July 15, 2005

The Truth Commission: A Trojan Horse

Today, the Bishops-Businessmen's Conference of the Philippines ("BCBP") advocated the establishment of a Truth Commission to investigate the long and short of the Garci tapes. Certain names were put forward by the BCBP, names who are seemingly irreproachable. I have several problems with the Truth Commission.

First of all, when it comes to investigating and trying the president, the Constitution only speaks of impeachment. Why? Because according to Prof. Laurence Tribe, Harvard law professor and eminent US constitutional authority, impeachment is the "ultimate manifestation of the Constitution's reliance on an inter-branch checking mechanism to preserve constitutional boundaries and to limit abuses of power". It is the manner by which the President may be judged guilty but only by a jury of her peers. People who, like the President, were elected into office and who, in theory, speaks for the people. A Truth Commission is neither a constitutional mechanism for limiting abuses of power nor are its members elected by the people but its recommentations may obliquely convict the President without according her due process.

Secondly, as a commission, it is quasi-judicial in nature. By experience, a quasi-judicial body is not bound by the technical rules of evidence and being so, there is that inherent possibility that evidence which will not pass muster in a judicial forum may be accepted as judicial truth. Others may justify the creation of the Truth Commission similar to the independent counsel of the United States. But unlike quasi-judicial bodies, the independent counsels follow strict rules of grand jury investigations and judicial evidence and they were created by an act of Congress. But even then, the Independent Counsel Act has expired and no longer exists.

Thirdly, I have a problem with the proposed members. Two of the persons cited have already come out in public that GMA is guilty, either of impropriety or illegality. Prof. Randy David has already stated that on record. Fr. Bernas has advocated her resignation. If they do become members of the Truth Commission, and with their conclusions already foregone, their sole function by then would just be to weave the evidence to justify their conclusions.

Fourthly, the simultaneous existence of the impeachment court and the Truth Commission will be an unwarranted waste of government resources. Already, people are complaining of the adverse effects of a prolonged impeachment trial and now, we have to contend with a Truth Commission which will very likely be a duplication of each other's findings. One must remember that in the Clinton impeachment, the trial only commenced after Independent Counsel Kenneth Starr submitted his report to Congress which later became the bases for the Articles of Impeachment. Thus, no duplication occurred.

And even if no duplication can occur which is improbable, we can no longer hold off impeachment because an impeachment complaint has already been filed before the House of Representatives. Thus, this proposal of the bishops and businessmen will be unfair to the President because it will be an exercise in negative publicity and detrimental to the nation because it will be an exercise in false exorcism. The members of the commission will be accountable to no one except to their conscience which while noble is a scary thought. And if the President has learned the currency of the past two weeks, she can no longer repose her trust to members of the civil society who will not hesitate to burn bridges, burn her and immolate themselves in the process. Once burned, twice shy.

Having a Truth Commission as proposed by the bishops and businessmen is like a gift borne by the Greeks, patronizing yet insidious. And as Laocoon warned the Trojans when the Greeks offered the wooden horse: "Timeo Danaos et donna ferentes". Beware of Greeks bearing gifts. It may well be a proposal fraught with dangers and traps. And for that, I will caution and advise the President to decline the gift.

Saturday, July 09, 2005

Resignation or Impeachment

People are asking Ms. Arroyo to resign claiming that it is a constitutional option. In so far as resignation is found in the constitution, it is correct. But I believe resignation is more a personal option rather than constitutional. It is akin to leaving office due to sickness or death. Moreover, these personal options are not exclusively found in the Constitution. They are practically found in all government codes involving qualification and removal of public officials.

I believe the only real institutional option found in the Constitution without involving an abrupt change of government (this excludes people power) is the impeachment process. While impeachment is a contentious process, it is nonetheless an option that we must undergo in order to strengthen our democratic institutions.

In the Erap impeachment trial, we were exposed for the first time to a unique procedure by which there was an opportunity to unseat a President peacefully without resorting to the streets. And yet, we were never able to learn from the process because the people took it upon themselves to judge the culpability of President Estrada. From this experience, the only lesson we re-learned was that we can remove a president forcibly without even adjudging his guilt or innocence. By far, that is the only lesson learned in EDSA II. And not a very few foreign correspondents criticized our manner of removing our presidents.

But if we pursue impeachment to its natural end, we may perhaps discover that impeachment, instead of weakening our economic strength, actually serves to strenthen our democratic institutions. That from impeachment, we can learn the lesson that our democratic institutions are mature enough to withstand a president being removed peacefully and without resort to people power. By doing so, our country could have impressed the local and international business community that life can go on in spite of the impeachment process.

Mrs. Arroyo must be allowed to undergo the impeachment process in order for our country to learn from a contentious and bitter dilemma. Mrs. Aquino asked Mrs. Arroyo not to undergo impeachment because it will cause long suffering to our people. Perhaps, resignation can save us from further suffering. But in the long run, our country can never attain democratic maturity when at every instance of dissatisfaction, we remove the president by sheer number or by demanding resignation. Our country, and not merely the President, must take the bitter pill or else, we shall be Sisyphus perpetually rolling up the boulder. Indeed, it is happening now.

Moreover, Mrs. Arroyo must be allowed to undergo the impeachment process because the constitution accords each and every individual the presumption of innocence. Already, we have pre-judged her culpability, though not without seeming reason as evidenced by the Garci tapes. But seeming reason is not equivalent to guilt. She must, as every individual is, be guaranteed her day in court. By resigning, and contrary to Mrs. Aquino's perorations of serving the highest good, Mrs. Arroyo will be notoriously remembered for resigning out of guilt. An individual must be allowed to leave a legacy as she so fashions and not as a decision forced upon her. If she is found guilty, then let us exact our pound of flesh upon her. But until then, Mrs. Arroyo has every right to clear her name.

Impeachment may be long and arduous but to paraphrase Thomas Paine: "That which we obtain easily, we esteem lightly". It is in undergoing a purgative experience like impeachment that the country will realize the strength of its democratic institutions.