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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, February 26, 2006

Cut-and-Paste Powers

For lack of a better term, Proclamation No. 1017 is a cut and paste power.

This is not the first time that GMA has issued a state of “something”.

In 1 May 2001 following the tumultuous assault of Erap forces on the Palace, GMA issued Presidential Proclamation No. 38 which proclaimed a State of Rebellion in the National Capital Region. Then, sometime in July 2003 following the Oakwood mutiny, she issued Proclamation No. 427 declaring a State of Rebellion. So, she is not new to proclaiming a state of something.

Now, this Proclamation 1017. The present state of emergency was ignited by a planned coup or withdrawal of support as euphemistically put by Chief of Staff Generoso Senga. If that is so, why term the whole situation as a state of national emergency? What is the real motive then?

The real motive behind Proclamation No. 1017, I think, is two fold. To exercise martial law powers without having to declare it and two, to clamp down on media.

First, to declare martial law would have been a death knell for the administration. Filipinos are allergic to the term "martial law" and would have rejected violently to its imposition. The mere mention sends shivers down the spine of those who remember those horrible years. But to let martial law exists in all but name would make it look innocuous.

Moreover, martial law has a life span of sixty days, national emergency, not having been defined in the Constitution itself, has no life span and is ambiguous enough as to allow the government not only to play around the time span but to abuse its powers.

Second, a declaration of a state of rebellion has been defined by the Supreme Court as a devoid of any legal significance in the case of Lacson v. Reyes. So, to declare in this proclamation as another state of rebellion would to be to repeat the same booboo and to prove that the legal team of Mrs. Arroyo, to quote my favorite character actress Cherie Gil, is nothing but a second-rate, trying hard copy cat.

Third, in both previous declarations of state of rebellion, media could not be touched because the powers of the President under the Executive Department (Article VII) provisions of the 1987 Constitution do not permit her to take over companies imbued with public interest because clamping down on media is not one of those powers that a president can do in times of lawless violence, insurrection or rebellion.

So, how does one legally and justifiably clamp down on media?

Simple. By invoking a power of the State to take over industries imbued with public interest while the emergency exists. Media definitely falls under these provisions because media corporations are imbued with public interest. This power is found in another part of the 1987 Constitution, specially, Article XII or the provisions on National Economy and Patrimony.

So, to confuse the general public, the legal team of the president cut and pasted the constitution and make it appear, without justifiable and legal basis, that the president has the right to clamp down on media in times of lawless violence, insurrection or rebellion. Dean Nachura, being the Presidential Legal Counsel notwithstanding, that is constitutionally unsound, absurd and appalling.

The declaration of a state of emergency does not authorize PNP Chief Lomibao or the police to arrest anyone without a warrant of arrest. In the Lacson and Sanlakas cases, the Supreme Court was very emphatic to say that if a declaration of martial law does not curtail constitutional rights, how much less a mere declaration of a state of rebellion? And if a statement of rebellion does not curtail constitutional rights, how much less a mere declaration of a state of emergency?

In my last night’s guest stint at The World Tonight at ANC, Atty. Romulo Makalintal, counsel for the president during the last elections, on phone patch flippantly argued that a state of emergency is no different than a state of calamity. Nobody complains about a state of calamity since both are the same.

In retort, I said the comparison was quite egregious. For one, government does not shut down a newspaper organization or threaten media companies with cancellation of their franchise when a state of calamity exists.

To compare the same without contrasting shows the presidential legal team playing fast and loose with constitutional terms. Hence, if we are confronted with a situation fraught with dangers, it is because the administration intentionally designed it to be so to allow greater leeway for abuse of questionable exercise of constitutional powers.

The road to Dante’s hell is now open with the welcome sign: “Abandon hope all ye who enter here”. Welcome to the dawn of a cut-and-paste presidency. This is what apathy has finally brought us to.

Monday, February 20, 2006

Helga's EDSA Reminiscences

Being a weeklong celebration of EDSA People Power Revolution, the blogosphere, however comparatively new, is not about to bemoan the irrelevance of that glorious event.

Apart from the moving account by PCIJ blog of the many varied participants of People Power, Helga recounts her Valkyrie experience of EDSA 20 years ago. She shares her experiences here and here.

A very moving account peppered with graphic details of what transpired on those 4 days and if I am not mistaken, she has discussed the first two days already and I, for one, await the third and fourth installment. Helga owes us a series!

And for those who are not aware, there is an exhibit at Glorietta 4 of EDSA from the time Ninoy was assassinated, the 1986 People Power event and up till the rallies demanding GMA’s resignation. And if you must know, Helga is in that exhibit.

Read her EDSA first person account and go to Glorietta 4 for the exhibit. And realize that this country is not yet a lost cause and as long as there are people like Eggie Apostol, Chito Gascon and Helga who have always fought for the cause of righteousness and justice, we will continue to believe in the nobility of the Filipino soul.

And yes, the Filipino is still worth dying for.

Wednesday, February 15, 2006

Where Were You?

20 years ago, when we were still law students, we felt a breath of fresh air stirring in our midst when Cardinal Sin called out the people to protect the soldiers.

To us, we wondered what all that meant. At that time, we just finished studying the 1973 Constitution or the Marcos Constitution and I recall that not even the commentaries of Fr. Bernas spoke negatively of that charter, al least not as openly as he does now in his Inquirer columns.

But while the atmosphere of martial law prevailed in those days, pre-EDSA circa 1985-86 was a joy in law school. While our classes were held in the evenings, we full time law students would join the rallies in Makati in the afternoon and stormed Security Bank which when they saw the rallyists would immediately roll down their steel doors.

We would walk the length and breadth of Ayala Avenue to the cheering Makati office personnel who would open their windows from buildings high up and rain down their yellow confetti, presumably shredded from the PLDT yellow pages, cheering us on. We would sing Bayan Ko, listen to speeches, both fiery and hilarious, interspersed with chanting and sloganeering but all the same, critical of Marcos and his cronies.

In law school, there were a handful of Marcos loyalists holdouts and among them were the daughter of then Defense Secretary Juan Ponce Enrile, the youngest son of a former Minister of Justice and whose other famous brother is a lawyer turned news personality and a wine connoisseur, the son of a former PBA commissioner, the brother of a TV female news personality, and the sister of a famous fashion designer. And to their credit, they did not shirk from their belief that Marcos was their man. Before the snap elections, they would wear Marcos red t-shirts while most of us would wear Ninoy or Cory yellow. While the battle for the hearts and minds was fought in the streets, the law school was not immune from occasional outbursts of “Cory”"Cory" "Cory" and “Marcos pa rin”. It was simply unacceptable to fence sit during those heady days.

When the snap election was held, we were taking up Election Law and our professor, Atty. Rogelio Nicandro, suggested to us that those who volunteered in any form or manner during the snap elections would get credit. Immediately, droves applied as NAMFREL volunteers and I was assigned to Xavier school to monitor the elections in San Juan. Even FPJ’s daughter was a NAMFREL volunteer in San Juan.

In one instance, there were Marcos volunteers who entered the Xavier precinct wearing Marcos red and they were told it was prohibited by law and was asked to leave. Of course, being Marcos country, they haughtily refused and even shouted “Marcos pa rin”. We retorted and chanted back “Cory” “Cory” drowning their arrogance till they decided to leave the election premises. And naturally, all those who volunteered got a grade of 90 in Election Law.

When Cardinal Sin called out the people to support the RAM boys, some of us were set to attend the ordination rites of Fr. Louie David in Ateneo Loyola. Some of us never made it to the ordination because we got detoured at EDSA and just about decided to stay on not knowing where this would lead to.

I remember at one point standing at the foot of the stage at Camp Crame where Fidel Ramos, Juan Ponce Enrile, Mel Lopez and some other political personalities were giving out their pep talk. This was the time when Ramos was jumping and telling us that it will be over soon. We were cheering them on and so hopeful that the dictator would be gone. It turned out that he was giving us a pep talk because they heard rumors that Marcos was going to send out his troops and tanks for the last time to quell the revolt.

My memory may not be so clear at this point but that scene where Ramos was jumping on the stage and my face was clearly evident among the throng was immortalized in Mr. Arillo’s book. Unfortunately, having no sense of history and no regard for posterity at that time, I failed to get hold of his book and have not seen a copy since.

We stayed and slept in EDSA. We faced the tanks and soldiers. We befriended nameless people. We shared food and drinks as though we were long lost confreres. More than a rally, all of us came to EDSA to break bread and fellowship with all who were willing to stand in the line of fire and take the bullet, as it were, for freedom and change of government. Like the namesake of the street, it was truly an epiphany of saints, men and women of goodwill who believed that corruption and bad government should not last a day longer.

It was 20 years ago. Many of us have become disillusioned and some like Ignacio Bunye have the temerity to say EDSA is no longer relevant. 20 years ago, I was willing to die for my country. I have no reason to depart from that belief 20 years hence, present leadership notwithstanding and apathy being the new social cancer.

Like Leah Navarro when interviewed by Newsbreak Magazine, I want my country back too.

Monday, February 13, 2006

The Doghouse

I do not understand why the Senators are timid against fighting E. O. 464.  The Constitution is behind them. The legal luminaries are digging in for a fight. But the Senate continues to play the dog whose bark is worse than its bite.

I have mentioned to Manolo that the Palace is gearing for a fight, taking a page from Bill Clinton entanglements with Newt Gingrich.  Unfortunately for Newt, he overplayed his hand and allowed Bill to look like the underdog.

In this case, it is obviously Malacanan preventing its people from testifying in the Senate hearings and made more expansive by preventing them to appear in budget and confirmation hearings. And yet, the Senate takes this insult by saying nothing more than bringing the case up to the Supreme Court. But what’s taking them so long?  Pretty soon, like Bill Clinton, Mrs. Arroyo will blame the Senate for the breakdown of social services and effective governance.

Now, we hear that the Palace has backtracked and again the Senate just welcomes the move but does not condemn the Palace for its frivolous manipulation of the law.  

What has this Senate become of?  In the past, the Senate stood together as an institution, not fearful of the powers and the attractions offered by the Palace. Now, we have this Senate made up of buffoons who “see” when the Palace “saw” and sway “to” to the Palace’s “fro”.  The Senate is mostly a bunch of puppets whose stings are pulled by Palace puppeteers.   Is this the kernel where we will choose our future leaders to lead us?

Where are the men and women who ought to be the bastion of institutional bravery and willing to challenge the effrontery of the Palace?  They have gone to the dogs and the Senate is the doghouse.

Thursday, February 09, 2006

A Thicket Of Laws

I was browsing through Inq7.net and I chanced upon an article on the arraignment of Dinky Soliman in the Php20 Million libel case filed by Congressman Marcoleta.

If I got the article right, the judge in that case refused to act on Dinky’s Motion to Quash (on the ground that the facts do not constitute an offense) until she enters a plea. As a result, the public prosecutor entered, on her behalf, a plea of not guilty, despite objections from Dinky.

There seems to be a twisted application of Rule 117 of the Revised Rules on Criminal Procedure.

Under Section 1 of the Rule 117, an accused may move to quash the information at any time before entering a plea (presumably, a not-guilty plea). The reasons for quashing the information before plea are (1) there are formal or substantive defects in the information that may result to an amendment, re-filing or dismissal of the information, thereby obviating the need to be arraigned; and (2) once a plea is entered, certain grounds for a Motion to Quash are deemed waived (in this case, Dinky’s motion would have been waived)

It has been a procedural practice that once a Motion to Quash is filed, that takes precedence over the arraignment stage where Dinky is supposed to plead not guilty. That is one of the legally permissible strategies provided for in the Rules, not so much to delay the criminal proceedings but to afford the prosecution the opportunity to correct itself and set right its case and/or to provide the accused some semblance of swift justice.

And procedurally and precisely for reasons stated above, the motion is always decided beforehand and before arraignment. But somehow, in Dinky’s case, the good judge gave short shrift to Dinky’s Motion to Quash and insisted on her arraignment. I could not fathom why the judge would do that. Dinky is not a fugitive from justice, she is not an escaped detention prisoner, she did not commit a heinous impeachable offense like cheating in the elections, she is a known personality, who unlike the supremely coward of a Rotarian, Joc Joc Bolante, is willing to face the music, however “undanceable” the steps are. So, the haste upon which her case has progressed has undoubtedly raised not a few eyebrows.

While we are aware that Motions to Quash can be abused to death by the accused, the fact stands that our remedial laws do provide this legal remedy. To the minds of the drafters, an abuse of the rules on the motion to quash is insignificant compared to a situation where the taxpayer’s money would have been spent and wasted convicting an accused only to realize that there was error and defect in the case in the first place.

In Dinky’s case as in so many others, the judge should have deferred the arraignment of Dinky and act on the Motion first. At the risk of sounding redundant, there is no rhyme or reason to fast track Dinky’s arraignment since she is no felon. Why the haste then? Your guess is as good as mine.

This reminds me of Thomas More’s lines in Robert Bolt’s play “A Man For All Seasons” for the law to be evenhanded, even to the worst of criminals, not because justice must be provided them but out of fear that without law, the devil will come back to haunt him.

To Roper, a sycophant, he explains: “Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down -- and you're just the man to do it -- do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.

It would do well for the good judge to remember that.

Tuesday, February 07, 2006

Gonzalez's Tortiously Criminal Mind

In an article published in the Inquirer, Secretary of Justice Raul Gonzalez claimed that ABS CBN should be held liable for the stampede that caused the death of so many civilians. Essentially, he is quoted as saying that ABS is guilty of reckless imprudence resulting to death, that “Death is proof of liability”

If there is one official that should not speak in sound bytes, it is the Justice Secretary. Also, as the official obliged to give legal opinion to the Executive Branch, his role is not to incite public anger with statements meant to assign guilt without due process and to threaten a class suit litigation.

Certainly, there was no intent on the part of ABS to foment or cause such a tragedy. A person in his right mind therefore would pause and weigh the tragic event in the series of circumstances that took place immediately before the stampede, and not put the cart before the horse by concluding hastily the culpability of ABS. An investigation must be objectively conducted to determine the proximate and remote causes of the tragedy.

Responsibility, if any, must be laid before the perpetrators of the act and that may include ABS but since the latter is the giant fish in the water, the Justice Secretary preempted the investigation and deemed it expedient to score points with the people in total disregard for an objective investigation into the tragedy.

As Justice Secretary, he ought to have exercised sobriety and called the people to wait for the investigation to play out. It is not his bounden duty to excite the people to further rage and bloodletting. Neither is it his vocation to puff himself up at the expense of others.

But as it is, he has already pre-judged the outcome and certainly, in his lawbook, ABS is already guilty of tort and reckless imprudence. It is only a matter of when, and not if, before we see Gabby Lopez, Charo Santos-Concio and Willie Revillame haled before the City Prosecutor’s Office or the Department of Justice to exact someone's pound of flesh. To bait fist withal, if it will feed nothing else, it will certainly feed this government' s revenge on ABS-CBN.

And I never realized that ABS CBN had an obligation similar to a common carrier such as boats, planes and public utility vehicles which are required to exercise extraordinary diligence. In law, a common carrier is presumed to be negligent when death occurs. When exactly did ABS CBN end as a TV station and commence life as a common carrier? And what Supreme Court jurisprudence did Mr. Gonzalez possibly unearth to justify his claim that death is proof of liability in case of a TV program.

As Justice Secretary, he should be called to task for his irresponsible statements. As a high government official, people look to his opinion as gospel truth, no matter whether his claims are unsupported by law and jurisprudence. With callous statements designed to further aggravate the people's angst and pathos, many will look to him for justification to vent their rage and now that he has prejudged ABS, he has just intensified the clone wars between the TV stations. Even Executive Secretary Ermita admirably held his tongue when asked who was to blame for the tragedy.

Would it have been better for the Justice Secretary to keep his mouth shut while an investigation is pending? Most certainly. Unfortunately, Justice Secretary Gonzalez is not known for prudence or calm. He is one who will not hesitate to fan the flames of bigotry and deceit. And for the life of me, why he is the Justice Secretary is beyond my mortal understanding.

Thursday, February 02, 2006

The Road Taken

Like Ricky Carandang, hectic days and busy schedules should not prevent a blogger from posting even if the days are long, the future unclear, and the road to truth and justice seemed to have taken an awful bend. And no, my dsl is working perfectly ever since Manolo wrote about his DSL angst in the Inquirer.

In his latest posting, Ricky was quite pointed in his question to the Black and White Movement. By going to bed with the left, is B&W set up for another betrayal?

In my personal opinion, I think the long and short answer to that question is No.

First of all, the statement of solidarity should be taken at face value and nothing more. The consolidation of anti-GMA forces calls for the resignation or removal of Mrs. Arroyo. That is the single aim and purpose of that statement.

It does not ipso facto mean that the middle forces agree to the philosophy and methodology of those whose political views are different or radically opposed to them.

Second, the statement of solidarity is a statement of values, not of policy, which I think no one can disagree with, not even those who straddle in the twin extremes of the political spectrum. Simply put, it is a motherhood statement but only this time, expressed by an aggrupation of people with different modes of belief and thought.

Third, I think the convenors of the Black and White are not as naïve as how Ricky puts it. After all, while it is entirely possible that the movement would prefer a political personality that is more attuned to their political philosophy, ultimately what the movement is fighting for are political, electoral and social reforms which they have previously laid out and which make for a more permanent foothold in the political scheme of things.

In that sense, it is not altogether remote or difficult for the Left to listen to the core values of the Black and White Movement . Moreover, and realistically however, it is quite remote to subscribe to the possibility that the Sison left or the Erap forces will be in a position to take power even if there be a consolidation of all anti-GMA forces. This conclusion is drawn from the experience and the aversion of the middle class and the Filipinos, as a whole, to totalitarian beliefs, whether coming from the right or the left.

And lastly, if I am not mistaken, the solidarity of the anti-GMA forces is not new. It has been a road previously taken although not as prominent as it was highlighted in the Inquirer. The Bukluran sa Katotohanan and the People’s Congress come to mind. In them, I recall Black and White concurring in the values espoused by the organizers.

If the anti-GMA forces have decided to come together for now, it is the reality that the road to truth and justice is long with many a winding turn and as Robert Frost puts it, miles to go before we sleep.