Garci Tapes Reloaded: Damnum Absque Injuria

This article was posted last 18 July 2005 at the height of the Congressional investigations on the Garci tapes. It is being reposted with some corrections. This article assumes renewed significance in the light of Garci’s resurfacing and his seemingly “non-repudiation” repudiation and “non-denial” denial of the tapes..

My point: The Garci tapes are not a violation of the Anti-Wiretapping Act in the light of our jurisprudence and U. S. jurisprudence on right to public information vis-à-vis rights to privacy, and therefore can be used in evidence subject to the evidentiary rules on Electronic Evidence
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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 conversations, a violation still 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 US Federal Supreme Court held that recordings of illegally intercepted cellphone conversations may be aired in public because the contents are matters of public interest but nonetheless, the defendans can be sued for damages. (Note: Bartnicki dealt with defendants who played the tapes over the airwaves, the recorders were never identified)

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 itching 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.

Splendor

I am a fond reader of poems! And I think, so does Rizalist who does not hesitate to use them in his blog. To quote William Congreve, English poet and playwright, poems, like music, have "charms to soothe a savage beast, to soften rocks or bend a knotted oak".

This weekend, I have endeavored to post with permission "SPLENDOR", a poem written by Matthew Go, a 12-year old Xavier lad who is turning 13 this December. Reading it the first time, my impression of the author was one advanced in years and steeped in experience. How wrong was I. How an 11-year old can write with such depth and maturity can only speak of his precocity.

Read on and let Matt’s poem “Splendor” soothe the beast within us
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The sweet splendor of the flower in bloom
And the simplicity of a darkened room
The sound of a waterfall falling
And the laughter of a child playing

All these are in our world
Our life is metaphorically curled
We have to force it to be straight
Along the way we’ll encounter love and hate

The bickering of a 20 year marriage
The blood sucking of a leech
The chill of the frozen throne
The sound of a very harsh tone

The world may seem unfair at first
You might think you’d want to burst
At a moment when all is lost
Look around you and then pause

What do you see?
A child laughing or a dying tree
What would you look at, let me guess
I would look at the child, its smile so mild

Look at the bright side of life
Don’t even think of stabbing our heart
Let love invoke you and hate depart.


Matthew Go, Nov. 16, 2004
11 years old

We Wish You A Truthful Garci

Once more, a blog turner from the Black & White Movement chronicling the travails of the mendacious Garci and a call for him to surface and speak the truth of the last election. Suffice the well-written blog to speak for itself.
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We apologize for the inactivity for the last few days, but we are deep in preparation for our November 30th rally. But since one of our "favorite" GMA henchmen has decided to worm his way out of the woodwork, we are posting our latest press statement regarding Virgilio "Garci" Garcillano. As usual, comments are welcome:

The Black & White Movement views with concern media reports that Virgilio Garcillano has returned.We welcome this development because we have been quite vocal about wanting to see “Garci” return home. However, we are also concerned that he might be part of the continuing grand cover-up that Mrs. Arroyo has been undertaking.After all, after months of being untraceable and unreachable, his sudden reappearance seems curiously timed for the administration’s convenience. Aside from Garcillano’s wife, only Rep. Prospero Pichay, Mrs. Arroyo’s anointed candidate for Speaker of the House, has come forward to claim direct communication with him. This can only mean Garcillano remains firmly in Mrs. Arroyo’s pocket.

Instead of a holiday season filled with optimism and good cheer, and goodwill toward all, we are poised to witness a cunningly crafted performance. Mr. Garcillano will step forward and recount a version of events divorced from reality. As it is, we hear many administration allies suggesting Mr. Garcillano never even left the country, which boggles the mind and insinuates that the Singapore Foreign Ministry lied when it said Garci passed through Singapore on July 14. However, there is nothing the administration won’t do in order to promote its alternative reality. It will take a superhuman effort from citizens both outside government, and within the bureaucracy, to reveal the truth so firmly guarded by the government’s lies. As it is, allies of the search for the truth are being sidelined by the Palace. Rep. Gilbert Remulla, who was hot on Garci's trail in the House inquiry, has been replaced as Chair of the lead investigating committee. The timing of this move is very suspicious. And convenient.

It does not have to be that way. Mr. Garcillano still has a chance to finally do his country a service, and tell the truth. Unvarnished, unpolished, unprepared, but honest, forthright, and thorough. As Mrs. Arroyo herself once challenged the country, “let the chips fall where they may”. The Black & White Movement’s challenge isn’t hollow, like Mrs. Arroyo’s. Let the truth be told, though the heavens – or the administration’s power built on lies - fall. Mr. Garcillano can implicate all the people he wants – and should implicate all those who availed of his services - but he shouldn’t have selective amnesia when it comes to his clients and what they had him do in the last elections.

He should be forthright about where he has been, and with whom he has been with, ever since he disappeared precisely because he is accused of being a party to two crimes. The first was the cheating for May, 2004. The second was the cover-up to save the President in the wake of the “Hello, Garci” tapes’ appearance.

Should Mr. Garcillano choose, instead, to stick to a Palace-prepared script, he will accomplish only the perpetuation of the twisted view that a president’s pleasure, whether electoral or criminal, is the only law in town. He will therefore leave himself wide open to every means the citizenry can find to compel him to produce what he doesn’t want to reveal –the truth. Mr. Garcillano must tell all –or lose all. He must come clean as to why in the tapes, his conversations with Mrs. Arroyo match the results in the places they discussed (places where Mrs. Arroyo “won”). He must open up his bank accounts to expose the paper and money trail. He must decide to risk all by throwing himself at the mercy of his countrymen, rather than lose all –reputation, peace of mind, even his life- by continuing to serve or be held hostage by Mrs. Arroyo. For once in his life, he must do what is right.

The truth, and only the truth, Garci, can set you free. The Black & White Movement will work with zeal and determination with other citizen’s groups in determining what criminal cases can be filed against Mr. Garcillano now that he has resurfaced. Since the Palace has closed the avenue available to put legal closure to this case, we will challenge Mr. Garcillano's pronouncements before the courts, where he could suffer legal penalties if he fails to come forward with the truth. To lie is to invite consequences: prosecution for contempt of Congress; betrayal of the public trust; violations of the anti-graft and corrupt practices act; acts of direct bribery under the Penal Code and violations of the Omnibus Election Code. After all, as Mrs. Arroyo’s allies so love to say, “The law is harsh, but it is the law.”

TRO (Technically Restored Online)

The Temporary Restraining Order issued by Judge Ralph Lee removing a PCIJ blog on Jonathan Tiongco has expired.

To read the article and wonder whether the judge's previous TRO had merit, click this link and the PCIJ explanation of the expiration here. Thank you, Judge Lee for your inaction. And thanks to all bloggers who did their share of public indignation.

Congratulations to PCIJ and 3 cheers for Freedom of Expression!

The Abominable Garci

The Philippines has just made it to Ripley’s Believe It Or Not!

If the Himalayas have the Yeti, Scotland, her Loch Ness Monster, and the Rockies, their Bigfoot, the Philippines have Abominable Garci!

He has been sighted in almost all the nooks and crannies of the Island of Mindanao. Unlike the Paleolithic creatures which are known to chew foliage and devour carcasses, this Garci has been known to forage among Japanese restaurants and feast on sushi and sashimi. Last we heard, he is in General Santos feasting on tuna and mackerel, fresh catches from the recesses of the Mindanao Sea.

For those looking for him, he is not bushy like the Yeti, no long neck like Nessie and not as dark skinned as the Bigfoot. He has a signature shiny pate - so make sure you wear Rayban or Oakley or any sunglass with UV protection. He is fond of wearing bush jackets but for purposes of anonymity and camouflage, he is now a Muslim fashionista.

Expect him to surreptitiously appear in Tim Yap’s juvenile parties or Maurice Arcache’s social climbing fetés.

Where Was Katrina Legarda?

Today was the first day of the preliminary investigation for the rape case and where lawyers from both sides appeared for the first time before the City Fiscal’s Office of Olongapo City. The preliminary investigation was handled poorly by the City Fiscal. But that is another story.

From the defense is the likeable and very competent son of the late Sen. Francisco “Soc” Rodrigo, Atty. “King” Rodrigo, who was the head of the litigation department when both of us worked at Quisumbing Torres & Evangelista, the Philippine office of BakerMcKenzie, the largest law firm in the world.

Seated behind King Rodrigo was Ed Berenguer, a very able corporate lawyer, a tennis mate, and a law professor at the Ateneo many many years back.

I also saw my Ateneo batchmate, Emmanuel "EJ" Peña of Sycip Salazar Law Offices, the lawyer with the monkish pate and his Sycip boss, Joe Justiniano, a well-versed litigator trained ironically, under the wings of the late Sen. Jose W. Diokno, and cousin to an equally famous person, the acknowledged OB-GYNE expert of the UST Hospital and well-loved professor at the UST Faculty of Medicine, Dr. Zayda Noblejas-Gamilla.

But of all the high-profile lawyers, where was Katrina Legarda?

Her absence during the first hearing was not only noticeable, it was disastrous!

For someone who appears on an almost daily basis on television and heard on radio since she was retained, Atty. Legarda should have realized that as much as this case is going to be a looming court battle, perception and winning the hearts and minds of her fellow countrymen are all part and parcel of the war in the court of public opinion.

Her absence on the crucial first day seemed to suggest that she was not prepared to take the fight to the other camp. But only the night before, she appeared confidently in Ces Drilon’s ANC show. So, why did she leave the prosecution of the rape complaint to the other lawyers?

And what is this notion of an all-girl legal team? It was a sexist strategy designed to showcase the legal prowess of Amazon litigators OR the lack of it! Rather than employ lawyers on the basis of gender, she should have retained the best and the brightest minds in criminal procedure. She said Atty. Rogelio Vinluan, former partner and now, of-counsel to the ACCRA Law Offices will be advising the team but where was he as well? Like it or not, two genders are better than one!

We know that based on published reports, there is a strong prima facie case against the 6 US Marines but without her and left to the devices of the other lawyers, the defense has scored round 1 of the battle. If the case is later dismissed, Katrina Legarda should not blame media, the VFA or the Chief City Prosecutor of Olongapo City for favoring the Americans. It will be a defeat that she alone must bear full responsibility.

Atty. Legarda, it is still not too late to show your wares. As Demosthenes once said: “He who fights and runs away lives to fight another day!”

So, fight the good fight! We are watching you!

Ombudsman/woman

The race for Ombudsman/woman is on and I, for one, intend to join the fray.

My fearful (not fearless) forecast - She may seem to be llamado but I do not think Presidential Chief Legal Counsel, Merceditas Gutierrez, will be appointed the next Ombudsman. There are a number of things going against her, but gender is not one of them.

First, her perceived closeness to the First Gentleman is not only a disagreeable fact but a hefty liability. The fact that she was a classmate of Mr. Mike Arroyo will only bring another round of guffaw and criticism against the Arroyo administration.

Guffaw because the First Gentleman is not a known heavyweight in legal circles and through guilt by association, rightly or wrongly, non sequitur conclusions, her present status as Presidential Chief Legal Counsel was not by virtue of her intellect but by virtue of her proximity to the Big One.

Criticism because there has been no significant achievement that Merceditas Gutierrez, Esq., can lay claim to other than the fact that she was an Undersecretary of Justice who did not seem to see eye to eye with the current Justice Secretary. Of course, her present employment's patron cannot be gainsaid.

There is a marked difference between Simeon Marcelo and her. While both are perceived to be close to the President, the appointment of Simeon Marcelo came at a time where the president enjoyed popular support and Mr. Marcelo has proven his legal mettle long before he became famous in the Erap impeachment trial.

On the other hand, the appointment of Madam Gutierrez will come at a time when the president is at her lowest popularity and credibility, where her acts, speeches and decisions are met with increasing incredulity and political suspicion. Not to mention that her closeness to the First Gentleman will only buttress the charge that she is being appointed to hold the barbarians at the gate and to keep the backdoor shut while the president holds fort till 2010.

Second, she will not be appointed because she is a mere stooge in the political stage. She is being touted quite loudly so that when the protests by people’s groups questioning her lack of qualifications or closeness to the First Gentleman reach fever pitch, the palace will matter-of-factly announced that the president has heard the voice of the people and will appoint another one, less controversial albeit equally protective of their interests.

Her supposed appointment is actually a trial balloon meant to gauge the outrage of the people. It is a balloon meant to be burst at the last minute giving the impression that the Palace is not insensitive to the cries of its people

But it will not be Diosdado Peralta. He is relatively new to the powers that be in the Palace. He is known for trying hard to follow the footsteps of the other hanging judge, Max Asuncion.

My hunch: The president will appoint the Deputy Ombudsman for Luzon, Mr. Victor Fernandez, who is legally pedigreed, being the son of the late, eminent Justice Estanislao Fernandez, competent personnel in the Office of the Ombudsman and in the IBP Ethics Committee, a Sigma Rhoan fraternity member (like Justice Carpio, Senator Juan Ponce Enrile and Defense Secretary Nonong Cruz) but more importantly, he is close to the Firm, the powers-that-be in judicial and constitutional appointments.

Mr. Fernandez may have bewailed the suspicion that Merceditas Gutierrez may have bagged presidential preference. But that outcry is another trial balloon being floated by the palace to seduce the public to accept him. The Byzantine playbook is at work.

Merceditas will take the heat and reap the whirlwind of public animosity, but Victor will reap the harvest of her labor. And the government nonchalantly would have scored a moral victory.

Until Garci surfaces.

Occam's Razor

Just tonight, I caught Karmina Constantino on ANC interviewing Cong. Nograles regarding the yet to be officially released congressional report on Garci. He mentioned that the administration has no knowledge of Garci's disappearance and is just as eager to locate him.

That may be a bit of a stretch!

The genesis of Garci’s disappearance began when the cell phone tapped conversations between Garci and the president were released to the public. It is beyond a cavil of doubt, absence of provenance notwithstanding, that the president was heard inquiring additional votes along with the famously redundant “yung dagdag, yung dagdag” line.

Soon thereafter, Garci made his great escape. Since then, he has not been heard from but like the great Elvis, has been known to surface here and there.

The government claimed that it has no knowledge of the whereabouts of the infamous Garci. But the Wycoco NBI never even lifted its thumb to triangulate his position.

Who hid Garci?

Elementary! The person and the cabal who stand to lose all if he surfaces. Who else but the one whose voice was caught on tape!

Does one have basis to say that? Yes. Occam’s Razor. The simplest explanation is usually the best.

Keystone Kops

One has not seen a greater spectacle of government people, cops, cabinet secretaries falling all over themselves than this government trying to wiggle out of the mess they got themselves into. And the longer they explain, the more incredulous the reasons become. Their explanations insult even the very memory of Pinocchio.

Take the Ortigas Rubout. However the Traffic Management Group (TMG) justify the massacre of alleged carjackers as a legitimate operation or a shootout, the bumbling and fumbling fact is that a video camera recorded the actual carnage and merciless murder of men mangled in a mess of blood.

Then, the TMG fumbled the ball further by ordering a rushed autopsy where even the basic equipment for examining the corpses were absent. Things like a still camera to capture the wounds in film rather than draw the corpses and commit them to memory. Things like a rudimentary X-ray machine to take a snapshot within and without the corpses showing the trajectory, entry and exit points of the bullets to determine velocity, distance of bullets, shrapnel or the shooters themselves. Even the dumbest viewer of CSI will readily conclude that the police doctor who conducted the autopsy was so patently incompetent that the village herbolario, Mang Kepweng, could have divined cause of death with his cigar smoke alone.

Now that the 2006 National Budget is being discussed, perhaps the good senators might want to ask these brown-nosers, ass licking officers of the PNP to justify why the crime laboratory formerly headed by the jueteng coddler, General Mosqueda, had none of the most basic equipment even for detecting a simple case of bronchitis.

Take the Garci tapes. However Secretaries Bunye, Defensor, Gonzales try to downplay the significance of Commissioner Garcillano’s haunting voice, the bumbling and fumbling fact of the matter is that the cellphone conversations of Commissioner Garcillano with Mrs. Arroyo clearly evidenced the dastardly and duplicitous direct participation of a sitting president who conspired to cheat her way to another term, confederated to lie to the people she trusted and without shame, steal the people’s will to good government.

These bumbling acts are but the latest series of a series of bumbles that I fumble to enumerate given the numerous bumbles that my memory has fumbled to remember. Thus, I mumble.

If this administration is going to be remembered for any legacy, it shall be remembered as the administration that fumbled from crisis to crisis, earning itself the eternal accolade as the Keystone Kops presidency.

Legitimacy

I could not help dissent from the opinion of my fellow Atenean and fellow FEU law professor, Geronimo Sy.

In his article entitled “Presidential Power, Presidential Issues” posted online at the ABS-CBN News webpage, while he correctly pointed out that the issue besetting this president is her legitimacy, his solution is quite problematic and I quote:

“The only way to be legitimate in the present times, one cannot hope to go back in history, is to make the government work, not merely to function but to work for the people. For us, the citizens, to believe she is and will always be on our side, we must feel that our lives are getting better--economically, socially and politically.”

Really?

So, that means let us not dredge up the fraudulent manner by which she was voted into office and let bygones by bygones and end up as a race with no memory of righteous indignation or outrage.

So, that means we forget about Santayana that “those who failed to learn the lessons of history are condemned to repeat it” and end up in a vicious cycle of greed, cheat and weep!

So, that means we throw out the four years of law studying what is the essence of justice and fair play, dump the maxim “Let justice be done though the heavens fall” and end up with a new quip: “Let justice be damned, move on or fall”

So, that means we look the other way as long as we are getting better – economically, socially, and politically and end up a pound worse – morally, spiritually, and culturally.

So, that means illegitimacy can now be cured under the Family Code on the twin grounds of wealth and/or power, while those who have no wherewithal to earn a living or run for public office cannot hope to have the same legal remedy.

The solution to the issue of legitimacy cannot be forward looking. We are morally compelled to look back to the past. The cure is retroactive and retrospective in nature but forward looking in its application because to move forward, one has to heal the ills of the past and achieve the currency of the day –“closure”.

Closure cannot be achieved by the people becoming economically stable. Rather, the opposite is true. Achieving economic stability deadens our moral sensitivities, political power exaggerates our own sense of worth over true principles, and social stability will never occur in this country as long as overseas labor exportation is this administration’s continued revenue and social policy. Overseas employment tears up the very unit and fabric of our society.

So, tell me pañero, how does one achieve social stability when half of the basic unit is out of the country, and a few, some or most of the other half have either been co-opted by booze, lulled by indolence or tempted by companionship?

Becoming rich or powerful may be good but it is not the solution to the issue of legitimacy. History will judge her by her inability to confront her ghosts, and her legacy - one of obfuscation, prevarication and the desolation of our people’s moral capacity to judge right from easy.

Tidbits

Why do Filipino factotums clear first, then investigate later when wrongdoings are committed by their underlings.  Examples:

The day after the rubout, Sec. Angie Reyes cleared the policemen of wrongdoing, and when additional evidences proved a staged rubout, says that they have not been actually cleared;

Speaker de Venecia defending the 4 congressmen who were accused by the Commission on Audit of overpricing 1000% the fertilizers.  Without even looking at the documents, JDV holds these people as honorable crooks, este, men of law.

Why don’t these guys hold judgment first before they proclaim their innocence? Once these leaders proclaim their underlings as honorable, will a contrary conclusion be reached by the investigators? Seem like these statements are actually a signal for the investigators to do their bidding.
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I hope Dinky Soliman was properly advised by her lawyer-spouse what she meant when she admitted before the CCTA that she betrayed public trust. The ever vigilant Justice Secretary Raul Gonzalez will not hesitate to file a case against her to please his boss. Dinky Soliman’s testimony does sound like an admission against her own interest.

On the other hand, it may be a brilliant strategy for Dinky to reel in Sec. Gonzales to sue her. In the process of clearing her name before the fiscal or before the courts, she will be able to subpoena the President to testify as a witness.  What one cannot draw evidence from the president directly, Dinky will do it indirectly. Galing! Let’s see if the Justice Secretary will take the bait.
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Someone from the opposition should put up a counterfoil to Secretary Eduardo Ermita.  In his press conferences, the Executive Secretary is so folksy that even when he is lambasting the opposition, he uses analogy culled from his Batangas roots to deliver a personable tirade.  

Not like Cong. Escudero who answers with a mile when a foot will suffice, Cong. Cayetano who sounds like a declamation contest winner, Cong. Paras who talks like an educated sanggano and Cong. Suplico who speaks like a sniveling, sarcastic  manggagancho.  
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TRO Countdown – It is the 12th day of the TRO issued by Judge Ralph Lee against PCIJ. Eight more days and we will see whether the judge will issue a preliminary injunction.  

Although the TRO proved to be a useless order, and while the blogging community will give short shrift to any preliminary injunction that may be issued, the bloggers must continue to remain vigilant on any unwarranted intrusions to our constitutional right to blog and be bloggered (= to be clobbered in the blogs, my contribution to blogging neologism)

Change Of Venue

One of the first things that lawyer Katrina Legarda wanted, upon being retained as lawyer for the Subic rape victim, was to ask for the change of venue.

While as a general rule, venue is jurisdictional, i. e., a criminal case must be tried in the court having jurisdiction where the crime is committed, a change of venue can be ordered by the Supreme Court to avoid a miscarriage of justice. The High Court is administratively empowered to do so under Article VIII, Article 5(4) of the 1987 Constitution.

In order for a successful change of venue, Atty. Katrina Legarda must prove that there will be a miscarriage of justice in that Subic, being the closest thing to the land of milk and honey in the Philippines, and the prosecutors of Olongapo City, are so patently biased in favor of American interests that justice and fair play can not be obtained in that jurisdiction.

Previous to this case, one of the most highly celebrated case whose venue was successfully transferred was the case of Congressman Vincent “Bingbong” P. Crisologo. Bingbong Crisologo currently represents the First District of Quezon City and is a known Catholic charismatic leader. However, he was a big disappointment during the GMA impeachment proceeding when he suddenly made a vanishing act and neither voted for nor against the impeachment complaint. For a Catholic leader, his decision to fence sit has earned him a worthy place in one of the lowermost rungs of Dante’s Inferno.

But in his younger days in Vigan, Ilocos Sur, he was a brash, arrogant warlord, being the son of the then Ilocos Sur congressman and the lady governor. His arrogance led him to fiddle while he burned two towns in what became the celebrated 1970 burning of the twin towns of Ora Este and Ora Centro.

Fearing that justice will be denied if the case was tried in Vigan, the Supreme Court, though the most eminent Justice JBL Reyes, finally ordered the recalcitrant Judge Mario Gutierrez to change the venue from Vigan, Ilocos Sur to either San Fernando, La Union or Baguio City. As a result, Bingbong Crisologo was tried in Baguio City and convicted. Those were indeed the days.

But this article is not about legalities. This is about a story I heard from my friend, Omy Romero, son of a former Baguio City mayor, who as a young man attended and witnessed one trial day in the Bingbong Crisologo case. His one-day attendance is not only about recounting the murder of townspeople in Ora Este and Ora Centro, but also the recounting of the mangling of the English language.

In a direct examination of a witness, Ilocano lawyers speaking in English with very thick Ilocano accents, asked a witness (the English will be spelled as mangled):

Prosecution: When the cugon grass was boarneeng, what did you deeeed?

Defense: Objection, your Honor! Wrong grammar, it should be, when the cugon grass was boarneeng, hoooooow do you doooo?

And so, much to the exasperation of the trial judge, murder most foul was perpetrated against the Queen’s English that fateful morning.

Towards the end of the morning’s trial, the judge was so fed up that he banged the gavel and warned the two lawyers: COUNSELS! If you do not improve your English the next hearing, I WILL HOLD YOU IN CONTAIN!

Makes you realize why year in and year out, more than three-fourths of the bar examinees do not pass the bar examinations.

Curb The Supreme Court - Not!

Caught on ANC Attys. Raul Lambino and Rita Jimeno, two members of the Constitutional Consultative Commission. They were proposing to curb the expanded powers of the Supreme Court. If I heard them right, they want to prevent the High Court from reviewing government contracts.

Atty. Lambino claimed that the expanded powers of the Supreme Court were brought about as a reaction to the restricted role of the Supreme Court during the Marcos era. As a result, without saying so, they accused the Supreme Court of running riot since 1987.

They are especially peeved with the idea that the Supreme Court can meddle in government contracts that have international consequences. Again without saying so, they must be referring to the decision rendered in the Petrochemical Case where the Taiwanese wanted to build a petrochemical plant in Batangas but the Supreme Court ordered the venue maintained in Bataan.

They are also referring to the decision of the Supreme Court canceling the award of Manila Hotel to a Malaysian consortium and instead, awarded the now first-class motel to Mr. Emilio Yap, citing as a ground for reversal, Manila Hotel being part of national patrimony.

They are also referring to the decision of the Supreme Court declaring unconstitutional the Mining Law and then, reversing itself and declaring it valid.

And so, because the justices are just doing their jobs, they want to emasculate their powers. How logical!

The Supreme Court may seem to be obstructionist in those regards but one must remember that the role of the judiciary is reactive, never pro-active. We do not have activist jurists who believe that the Constitution is a living breathing constitution that can be interpreted according to the times. Most, if not all, are strict constructionists. Thus, they craft decisions according to how a contract measures up to the law, and nothing more. Therefore, the fault, my friends, does not lie with the Court, the fault lies with the two other branches.

The problem lies with the Executive Branch which thinks that just because the members of the Court are appointed by the president, she owns their life, their tenure, and their conscience. And so, any contract entered into becomes “executive privilege” that cannot be touched upon.

The fault lies with the Legislative which thinks that because they crafted the law, it will stand the test of judicial scrutiny. Quite so, but when a decision declares a law they crafted as unconstitutional and are therefore, embarrassed, they cry “judicial tyranny”, “judicial legislation”, or “judicial interference”.

More than anything else, the judiciary is the scapegoat that is thrown to the wolves because the judiciary foolishly does not engage in media debate. It believes its works speak for themselves. Perhaps, but with such outmoded thinking, the obstructionist impression foisted upon media by their detractors will go unchallenged.

If the Commission removes the expanded powers from the Supreme Court, then you curb the remaining bulwark to review onerous contracts, to overturn government abuses and excesses and you diminish the authority of the last jurisdiction where one can still expect justice to prevail.

It is the Supreme Court that is the least powerful among the branches but which can arrive at their life-changing decisions collegially. At the very least, one can argue that the decisions they render have been thoroughly threshed out in argumentation and debate. Not like the Cabinet which is in a survival mode or the Speaker or the Senate President who are engaged in a war of usurpation.

If they successfully curb the powers of the Supreme Court, forget about what we learned in law school or heard from legal commentators. All they taught will become bunk. Let us therefore not tweak the Supreme Court powers. It is fine as it is right now.

Let justice be done though the heavens fall - one of the earliest maxims a law student learns upon entering law school. But apparently, for this government, the sky is falling and thus, the need to burn the Supreme Court.

B&W Comment

Last Wednesday, the Black and White Movement came out with their first public information ad and subsequently, it was posted in their website. Incidentally, the blog of the Black and White Movement is blckandwhte.blogspot.com. If you believe in its advocacy and its reform agenda, please link it to your sites. I did.

Well, after the ad was posted in their blog, I browsed through their comments and there was an interesting and biting comment against the Black and White.

Helga, the Valkyrie, equal to the task, responded with determined tenacity concluding with perfect sarcasm.

My narration does injustice to the dialogue. You may wish to browse through the comments in the blog but I have taken the liberty of reproducing them here. And judge for yourselves the merit of Helga’s retort:

“Annonimus:

One comment, no matter how nicely you introduce your organization, you have to admit one thing: you are in the minority.I have a few questions for BWM:

Can you accept the fact that GMA is still around after all the controversies of the past year because she has majority of the people's support - people who did not rise up in arms to oust her?

Can you accept the fact that majority of the people believe GMA may have legitimately won the elections because she was so damnd lucky no one from the opposition was willing to sacrifice for the good of the nation and because her only true opponent got sick toward the end of the campaign - and for these people, that is enough for them?

Can you accept the fact that majority of the population wanted to see the impeachment thru but since it did not, we have opted to move on?

Can you accept the fact that Noli de Castro is sticking to GMA because he believes they won the election and both have a mandate to see their term through?

Can you accept the fact that as irritating, arrogant or wrong as GMA may be she is the legitimate president of the republic and the rest of us citizens of the republic can take that?If you cannot, please see a therapist who can help you move on.

Helga’s Response:

Ok, for the sake of argument, let's say we are in the minority. Just bear in mind that the truth is that we are in the majority. Please check all the surveys, SWS and Pulse, to date. But anyway, let's keep to your thinking for now.

No matter how you couch your argument to make you feel comfy, it's a cop out set of beliefs that help you move on. I marvel at how easy it is for you to choose the easy road, like many other Filipinos who purport to love their country.

We were in the minority when the move to oust Marcos was begun, we were in the minority when we first voiced distrust of Erap. If we are what you say we are, we find ourselves in the same minority again.

A minority that consists of people who believe that complacency has no room in our hearts, that wrings must be redressed, that a bright future for our youth is assured. If I belong to the minority that is willing to fight for a government that we should have, then I like the company I'm keeping.

To move on means to accept that blind loyalty is a good thing. To move on means that you accept that our values have eroded to such a degree that you find it alright to have a dishonest, and in your words arrogant and wrong person keep the Presidency.

Are you one of those people that allows their spouse to cheat on them, their kid to cheat in school, that steals from their employer? Bet you'd say no. But then that would be a contradiction. Tsk, tsk.

I personally believe I am in good company. It is a company of folks that have chosen a difficult path. We aren't going to give up.

What company are you keeping?"


BY THE FRUITS SHALL YE BE KNOWN.

JPE Timber Concession Legal?

Last 9 November 2005, the Inquirer came out with an article where a timber corporation owned by Sen. Juan Ponce Enrile was granted a renewal license to cut almost a third of the trees found within the Samar Island Nature Park, a rich biodiversity park.

The grant to Sen. Enrile’s San Jose Timber Corporation by the Arroyo government has been severely criticized by environmentalist groups and political analysts as a beleaguered act of a beleaguered president to prop a beleaguered tenure, trading off the environment and the survival of the many in exchange for the one. Whether there is basis or not, this exemplies how Senator Gordon describe the president’s style of governance as “transactional leadership”.

In the Inquirer article, Atty. Fidel Exconde, Jr., the Environment Assistant Secretary for General Legal Services justified the grant with the following quote: “The question was: Is there anything that would stop the SJTC from logging in its TLA (timber licensing agreement) area? On paper, there is nothing; no document bans them from logging"

Really?

Has this 1998 bar examinee ever heard of the landmark case of OPOSA v. FACTORAN (G.R. No. 101083 July 30, 1993), the case penned by then Justice Hilario Davide that gave Philippine jurisprudence the concept of “intergenerational responsibility” and which further gave minors the right to sue on behalf of succeeding generations yet unborn to lay claim to their “right to a balanced and healthful ecology” as provided under Section 16, Article II of the 1987 Constitution.

Justice Davide, moreover, emphasized the equal importance of a balanced ecology to other civil and political rights, to wit:

“While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter.

Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind.”

Didn’t Atty. Exconde, Jr. remember the legal truism that Supreme Court decisions form part of the law of the land and all laws are deemed weaved into a contract? Is not a Supreme Court decision written on paper? Justice Davide was so incensed with a possible ravage of the environment that he even brazenly stated that the right to a healthful ecology should have been presumed to exist since Adam and Eve were created.

And yet this gentleman myopically viewed the documents without taking into consideration the pertinent jurisprudence and proceeded to declare nothing wrong with the corporation’s documents. He further claimed that other documents were technical in nature and therefore, did not merit importance.

Did he consider the Oposa doctrine a mere technicality fit to be ignored? If he had read the Oposa case, he would realize that Justice Davide himself gave importance to the technical information surrounding the present state of the Philippine environment, including the ill “greenhouse effect”.

For a factotum in the Department of Environment and Natural Resources, his cavalier treatment of the environmental facts surrounding the Samar Island Nature Park is shockingly deplorable.

Mr. Exconde is further quoted as follows: “A perfected mining claim is a vested right, and that is just a claim. How much more a logging contract? It is a source of property rights which cannot be revoked without due course of the law”

Really? Let’s hear what Justice Davide had to say in the Oposa case:

“Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause.”

There you have it, contrary to what Atty. Exconde said, timber license agreements are not contracts within the purview of the due process of law clause. That means, it can be rescinded or revoked any time.

What am I trying to emphasize? That this government does not have the political will to protect the environment and the survival of the succeeding generations. That this government, through the president and Mike Defensor and his underlings, do not have the intellectual wherewithal to even put up a decent and cogent justification for the renewal of the timber license agreement. And that this government shall continue to trade our patrimonial rights to political allies to ensure a Darwinian victory.

The president could have easily denied the renewal of the timber license agreement given the present state of our environment. Did she have to watch Discovery Channel in order to be convinced that our environment has been raped and pillaged or is she playing fast and loose with our children’s future for the sake of her own political future?

Pray tell, how now shall we live?

Newsbreak Feature

A pleasant surprise awaited me after attending a labor case in the morning!

Coming home for lunch, I decided to check on my gmail. And surprisingly, a lady emailed me informing me that I was featured in the November 21 issue of the Newsbreak Magazine where Chief Justice Davide was the cover feature. She proceeded to pose her legal query. I surmised that she passed through my other blogsite, Saklawlaw, where I provide free legal advice online.

Despite the fact that I never recall having been interviewed by any print reporter, I answered her legal query on Reckless Imprudence and emailed her back.

But curiosity gnawed on me and I told my staff to buy me a copy of the 21 November issue of Newsbreak. And true enough, it was featured and occupied about a-fifth of page 12. It was entitled “ONLINE PROBONO WORK” and written by Ms. Carmela Fonbuena. The “blurb” however will not be found on the online edition of Newsbreak.

She proceeded to describe what the blog’s purpose was and gave a little description of who I was. She also did an etymology of my blog’s name. She described it as a combination of SAKLAW + LAW meaning comprehensive law. Indeed, it was very deep and high sounding. I must thank Ms. Fonbuena for the publicity of my legal pro-bono blog.

Actually, I have a more mundane explanation for my blog’s title. I conceived and termed it SAKLAWLAW as a play on the Filipino word “SAKLOLO” meaning help, anglicized it, changing “lolo” to law law” to adapt to a legal setting and still maintain the same "lolo" sound. Thus, SAKLAWLAW meant legal aid.

But so as not steal the thunder from Ms. Fonbuena's excellent explanation, I shall deem Ms. Fonbuena’s interpretation as the better and more philosophical origin of my blog’s name. And for that I am eternally grateful for the article she wrote.

I would also like to thank two people, namely, Manuel Quezon III, the Rand McNally guide of the Philippine blogosphere whose October 18 blog roundup mentioned SAKLAWLAW and where I am most certain Ms. Fonbuena found my blog, and to Prof. Punzi whose lecture series gave me the idea of providing legal advice online.

Indeed, it was a pleasant surprise!

Bwisit Na Forces Agreement

Anyone who reads the Visiting Forces Agreement especially the provisions on Criminal Jurisdiction (Article V, Section 6) will critically conclude that the Philippine panel negotiating the agreement were not composed of litigation lawyers and were not cognizant of the pragmatic realities of the Philippine judicial system.

Under the Article V (Criminal Jurisdiction), Section 6, a criminal case must be completed in one year. “If In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph.”

The Filipino negotiators must have been dreaming!

We now have a case of a Filipina raped by 6 US Marines who are here by virtue of the Visiting Forces Agreement. We will test whether the US Marines can be convicted or acquitted within a period of one year.

However, a theoretical review of the Rules of Criminal Procedure which will govern the Subic rape case seems to suggest that the one year period is a sure-fire formula for the extrication of the offending Marines from our shores.

In the Preliminary Investigation (Rule 112) level, where the fiscal or the public prosecutor shall determine whether there are sufficient grounds to believe that a crime has been committed, the entire procedure from the filing of the complaint to the resolution of the chief city prosecutor would take approximately sixty (60) days.

Fifteen (15) days from receipt of a Resolution indicting the marines for rape, the defense lawyers will file an appeal, by way of a Petition for Review, before the Department of Justice. In turn, the Secretary of Justice is required to render a resolution within 60 days from receipt of the Petition for Review either dismissing or upholding the resolution.

Simultaneous with the filing of an appeal, an Information for Rape is filed before the court. The judge will issue a Warrant of Arrest within 10 days from receipt of the Information for Rape. However, if the judge is not convinced that a rape ensued given the evidence presented by the prosecution, it shall order the reception of additional evidence and he has 30 days to decide whether the evidences can justify the existence of probable cause.

To evade arrest, the Marines will put up bail. After putting up bail, the court will proceed to arraign the Marines. In turn, the defense lawyers will file a Motion to Suspend the Arraignment on the ground that a Petition for Review has been filed before the Department of Justice. Under Rule 116, Section 11(c), the court is procedurally estopped from arraigning the accused for 60 days.

This 60 days is the accommodation period given by the judicial department to the executive department, particularly, the Department of Justice to resolve the appeal filed by the defense lawyers. If no resolution is rendered within 60 days, the case automatically proceeds to arraignment.

Notwithstanding the mandatory period of 60 days to resolve the appeal, the DOJ rarely meets the deadline. As a result, before arraignment ensues, the defense lawyers will again ask for a continuous suspension of the arraignment on the ground that appeal is still pending before the DOJ. A judge may grant the suspension but given the publicity of the case, the judge will most likely deny the motion to suspend arraignment.

The next step the defense lawyers will do to delay the arraignment is to file a Motion to Quash the Information under Rule 117. There is no fixed period within which a judge will rule on the Motion.

However, before the judge can rule on the Motion to Quash, the prosecution is normally given a period of 10 to 15 days to oppose the motion and the defense is given the same number of days to file a Comment to the Opposition. A safe bet is the judge will render a resolution on the Motion to Quash within a period of 15 to 30 days, which is pretty swift under our jurisdiction.

If the motion is denied, a Motion for Reconsideration can be filed by the defense lawyers who may take the same number of days, perhaps 30 days from the filing of the motion for reconsideration until the judge rules on it. At this point, 255 days have already elapsed. (60 [Preliminary Investigation] + 15 [period of appeal to DOJ] + 60 [Period for DOJ to resolve appeal] + 30 [Motion To Quash] + 30 [Motion for Reconsideration])

The defense lawyers can file a Petition for Certiorari before the Court of Appeals alleging grave abuse of discretion. They can also pray for an issuance of a Temporary Restraining Order & Preliminary Injunction on the ground of grave and irreparable damage. If the Court of Appeals grants the TRO (which is highly unlikely but not entirely remote), the case will be suspended for a period of 60 days. If no Injunction is issued, the case proceeds to arraignment notwithstanding the pendency of a Petition for Certiorari before the appellate court.

At this time, the case has already taken 315 days and the US Marines have yet to be arraigned. Assuming they are arraigned, the court will set the case for pre-trial within 30 days (Rule 110). 345 days have already elapsed. After pre-trial, the case will finally be set for trial within 30 days from receipt of the pre-trial order (Rule 119). 345 days plus another 30 days gives you 375 days or more than a year. Under the Visiting Forces Agreement, having gone beyond 365 days, they are off the hook at this point.

Even assuming no TRO is issued by the Court of Appeals, the total elapsed number of days is, as previously mentioned, 255 days. After arraignment, the court sets the case for pre-trial within 30 days. Then the court sets the case for trial within 30 days from pre-trial. One has already exhausted 315 days and the court has a remaining 50 days left to hear the case, present all the witnesses for both the prosecution and the defense and render judgment. But that is not the end of the legal tactics of the defense lawyers.

After the prosecution shall have rested their case, the defense lawyers, even before presenting their own witnesses, will file a Motion for Demurrer to Evidence which essentially asks the court to dismiss the case based on insufficiency of evidence (Rule 119, Section 23). Again, this alone will entail a minimum period of 30 days. By then, the one-year period shall have been exceeded and the damn Yankees shall have been flown back to the United States unscathed.

These periods do not even reckon the dilatory tactics that may be ordinarily employed by defense lawyers, or the heavy case load of the judges, or the sudden sickness of either parties or the absence of witness ad nauseaum.

All in all, the one-year period is really a “Get-Out-Of-Jail” ticket for the marauding US Marines. And you have our idealistic, buffoonish negotiators and lawyers to thank for.

Might as well be the 52nd State of the USA to erase all pretenses to Filipinos' primary exercise of jurisdiction over the American soldiers. Would make Prof. Jose Abueva and his federalist cabal leaping with joy.

Hogwash!

A Series Of Unfortunate Events

What’s going on in the Palace?

First, you have Secretary Norberto Gonzales cited for contempt and held a prisoner of the Senate

Second, as a result, the Palace issues Executive Order No. 464 prohibiting any member from attending legislative investigations without approval from the President. That was met with scorn;

Third, Secretary Eduardo Ermita implements the Calibrated Preemptive Response which dealt an iron fist on rallies held in Mendiola. That evoked memories of GMA as a president more heartless than Mr. Marcos;

Fourth, the Palace demands the Catholic Church to observe the separation of church and state after opposition members held a Mass at San Miguel Church and which also prompted the Presidential Security Group to check the bags and backpacks of church goers to St. Jude Catholic Church, the other church within the Malacañang Complex. That was met with cries that even Marcos in his prime never instituted such draconian measures on the faithful;

Fifth, you have the disturbing fire in the Department of Budget and Management last 28 October, the day after former Secretary Emilia Boncodin testified about the Fertilizer Fund in her room at the National Kidney Institute;

Sixth, you have what John Nery calls the “goddamned trial balloon” – now infamously known as the Julius Babao Affair, accusing Mr. Babao, an ABS-CBN TV reporter of aiding and abetting a suspected Muslim terrorist obtain bail. That was met with a stinging challenge from the TV network to prove the accusation and demanded from the Palace an apology. Under the theory that the king can do no wrong, the Palace passes the buck to the intelligence service of the Armed Forces of the Philippines and leaves them to apologize;

Seventh, you have the President calling for a legislated wage increase to cushion the effects of the EVAT implementation and hoping to curry favor with the masses. Made the leftists like Congressman Teddy Casiño and Renato Magbuto speaking with glee but terribly incensed her most important and perhaps remaining influential but tentative supporters, the businessmen. As a result, backtracks on her proposal;

Eighth, attacks media for being nothing more than chickens insisting the sky is falling. Made me think that the palace paranoia with bird flu convinced the speechwriters to conjure “fowl” words to hit back at media;

It seems there is no one in the Palace coordinating the president’s offense and defense. It’s each man himself to please her. Each action of the Palace is met with an increasingly spirited opposite reaction by her enemies. Newton’s Third Law does not seem to apply to the president;

Who is in charge of the Palace anyway? Everybody puts up a brave front for the president but deep within the labyrinths of the Palace, there seems to be chaos and confusion. Where is the Strong Republic of Tiglao? Gone to Greece as well to seek the Golden Fleece?

It is a matter of time before the rot in the palace boils to the surface and when it does, the president’s men will envy the day Secretary Tiglao decided to pack up before the dike breaks.

Amazing Grace

For those who think that the members of the Black and White Movement is composed only of the Hyatt 10 or elitist, I am reprinting here the answer of Ms. Helga, a Valkyrie sent by Odin to correct the misimpressions as to who comprise the Black & White Movement.

Two questions were asked by an anonymous commenter:

“1. Why are you called black & white2. Did you guys quit your day jobs because of a tape? I sure hope not.”

And this was Helga’s answer

“The Black n White we refer to isn't a good guys, bad guys thing as some folks think. Cheating is a moral issue - GMA either cheated or did not. There's no two ways about it. You can't cheat halfway.

Nope, we didn't quit our day jobs. Most of us don't even have time to blog. We're regular people, certainly not politicians, have no political or hidden agenda, we pay our taxes, and most of all, we love our country and hate what keeps happening to us.

We believe that sweeping these crises under a rug by ignoring them will cause us to trip up even worse, very soon. Doing nothing is the worse crime ever. complaining's even worse.

Don't agonize. Organize.”

To know more about the Black and White, go to their blog site and judge for yourself whether the movement deserves a second look and judge them for the beliefs they espouse.

I once was lost but now am found, was blind but now I see.

GMA's Rant And Wrath

Yesterday, the president issued her strongest criticism yet of media who continue to cast her and her government in a bad light, likening them to doomsayers and to that little chicken who kept insisting the sky is falling.

This is a rant by any definition.  If the president’s statements were opaque on her alleged illicit participation in the last presidential polls, her statements regarding media’s cynical attitude towards her and her government were transparently clear that she will no longer brook media’s protracted belligerent conduct.

Divide and conquer is what the president’s men will most likely do.  It is all too simple.  Take the case of the print media. You have the Philippine Daily Inquirer pitted against the Philippine Star. The president has obviously favored the latter and rewarded its publisher with the supreme compliment of interviewing her upon her arrival from New York.  

On the other hand, the Inquirer continues to pound the president especially its editorials and where its columnists with, perhaps the exception of 2 columnists, have no love lost for GMA.  While Malaya and Tribune continue to pester the president, its circulation is not massive enough to merit greater public attention.  This is quite unfortunate considering that they sometimes have scoops that even the Palace had occasionally denied.

In the case of broadcast media, the most likely plan is just to take advantage of the “take-no-prisoner” media war between GMA7 and ABS-CBN.  A head-on collision with media will not likely win points for her, as can be gauged by media’s reaction on the Julius Babao affair.  A proxy war or a low intensity conflict is a better and prudent approach to silencing the enemy.

The wrath of the president against the media is forthcoming especially after her rant.  She need not lift a finger to make life miserable for her enemies. Her knights will do it for her.  Her rant is but a signal for them to initiate cutting down media to size.

I am reminded of the story of Henry II of England in his rants against his nemesis, Thomas à Becket, the Archbishop of Canterbury. In anger and exasperation, he exclaimed: “Will no one rid me of this troublesome priest?” Immediately upon hearing his rant, four of his knights proceeded to murder the archbishop inside the Canterbury Cathedral.

Is a government conspiracy to wage war on the media underway? Looks like it, GMA has ranted, her wrath her men will grant.

Unblock That PCIJ Blog - A Writing Campaign

In an appalling disregard for the constitutional right to freedom of expression, a Quezon City Regional Trial Court judge, in a case filed by the wife of Jonathan Tiongco, the alleged voice-technical expert of Sec. Mike Defensor, issued a resolution ordering PCIJ to remove the PCIJ blog on Jonathan Tiongco, after the judge deemed it in the best interests of Mrs.Jonathan Tiongco, over and above the constitutional right to freedom of expression of the Philippine Center for Investigative Journalism.

This is the first time that a blog has been ordered removed by a judge without realizing that a temporary restraining order (TRO) has no practical effect on a blog. The respondent blogger may be ordered to remove the blog from its site but that would still not stop the entire Philippines from accessing the blocked blog through the cached pages of google or yahoo. Proof positive is the link above. Click on it and voila! So, what is the use?

By the way, I am linking the blog on the basis of my constitutional right to a free and unfettered access to public information. I am also commenting on the resolution because I am neither a party or lawyer to the case nor have I submitted to the jurisdiction of the good judge. Therefore, any notion of sub judice as far as I or the entire blogging community is concerned is bunk.

The judge violated a cardinal principle in the issuance of a TRO. The article complained of has already been published, in this case, posted. It was a done deed. That ought to have made the request for the issuance of a TRO moot and academic. You can no longer restrain an act that has already been performed. And even assuming that Mrs. Tiongco can make a compelling case of her privacy, the judge, if he knows how blogs work, could have ordered that particular paragraph alluding to Mr. Tiongco's marital status removed, at most and not the wholesale censorship of the blog. Mrs. Tiongco’s request and the order of the judge is therefore, invalid and assuming it is valid, it is downright impractical.

After all, how does one restrain a blog after it is published? By analogy, once a newspaper article has been published, the aggrieved party or the judge cannot conceivably and feasibly order the retrieval of each and every copy of the newspaper. In any event, Mrs. Tiongco can always ask for damages. More so with the blogs where transmission of information is one-click away. Que barbaridad!

Bloggers, since we are not parties to the case, let us show the futility of restraining a blog. To the best of my knowledge, since there is no forwarding email address to the Regional Trial Court of Quezon City, and if you believe that a great injustice has just been committed, let us show our disapproval by writing to the public information office of the Supreme Court with email address at pio@supremecourt.gov.ph, the highest court of the land, that we, Filipino bloggers, invoking our sovereign right to free speech, express in no uncertain terms our indignation on the Temporary Restraining Order issued against the Philippine Center for Investigative Journalism. Write forcefully but do it respectfully!

Bloggers, UNITE! Unblock that PCIJ blog! Write to the Supreme Court to register your protest!

Truth And Consequence

Come next week, the people’s search for truth will climb a notch higher. All those evidences that would have either exculpated or convicted the president shall be presented in this Citizen’s Congress for Truth and Accountability, a forum where bits and pieces, to torrents and finally to roomfuls of evidence proving in detail the president’s acts of betrayal, culpable violation of the constitution, etc. shall be disclosed for the public to see.

Will we see the president convicted? No.

That question should not even be asked. There is no legal authority for this people’s congress to convict the president, much less, impose sanctions. The president’s men went about crowing the forum’s illegality without realizing as much that their chief may well be one. Adding ignorance to injury, if the administration thinks it is has no legal basis, why was DOJ Secretary Raul “the Rottweiler” Gonzales insistent on indicting them for usurpation?

The government may have brainwashed the people into believing that the people’s congress is a kangaroo court especially, when no representative from the president’s side, not even Sec. Mike Defensor, will appear before the body. Poor Mike Defensor, since the Garci scandal, he has been trying doubly hard to please the president especially, now that GMA’s object of affection is Arthur Yap, whose work in the shadows is deviously more effective than Mike’s continuous search for his Andy Warhol minutes of fame.

It is not a kangaroo court because the people’s congress will not sit as judge, jury and executioner all at the same time. That is the standard definition of a kangaroo court.

But if there is one kangaroo court that will defy its very own definition, it is the people themselves acting as one humongous kangaroo court. It is the people at large who will sift through the evidences as a jury is wont to do, rule on the weight of evidences as judges are mandated to perform, and dispose and depose the president as executioner, however, the means may take.

Thus, we take with a grain of salt the derisive statements by Secretaries Bunye and Ermita on the People’s Congress. They were not spoken from a position of strength or defiance. They were uttered from a position of fear and loathing.

Fear that with all the damning evidences exposed for the public to judge, GMA will be found wanting and pardon the pun, short of presidential stature. It is quite obvious that GMA was grounded with the fact that she did not have the numbers to acquit her in the Senate impeachment trial. Therefore, the directive was to dismiss the impeachment complaints at all cost for any cause whatsoever. It is also the fear that the people’s anger will be unleashed once the truth is out.

Loathing that these groups have not given up deposing the president. Every day she governs, groups sprout like mushrooms demanding her resignation. Where allies once ruled confidently, the rumblings of dissatisfaction have stung even the most loyal of her Cebuano followers.

It is vital that this People’s Congress push through next week. It is a further imperative that the Hyatt 10 seriously consider testifying before this congress. They have been accused, rightly or wrongly, by the left and by Erap loyalists, of installing GMA as president. It would do well to heed their call, wipe their slate clean by testifying before the body. This may well be the last forum by which Dinky Soliman can convince the public that her loyalty to the president ended the moment they stopped singing “If We Hold On Together”.

Let us lastly disabuse our minds that the people’s congress will amount to nothing more than a publicity stunt. With truth coming out in droves, there will be hell to pay. The consequence will be swift and massive more so when the extensive network of election rigging shall come to light.

The president was once given the option to tell the truth or suffer the consequences of lying. Those choices are long gone. She could no longer be trusted to tell the truth. And therefore, with or without her cooperation, the deluge will come with a strong and mighty wind.