Even The Devil Can Quote Santiago

Charter change proponents and anti-charter change advocates have been invoking the case of Santiago v. Comelec. Essentially, what is this case all about?

Santiago V. Comelec was the test case that defeated the first attempt to amend the 1987 Constitution by way of people’s initiative which was codified into law and knows as Republic Act No. 6735.

Sometime in 1996, a petition was filed to amend the term limits of elective officials. Unfortunately for the petitioners, the Supreme Court dismissed the petition on the following grounds:

a. One cannot revise the 1987 Constitution by way of a people’s initiative;
b. The lifting of term limits is not an amendment but a revision;
c. R. A. No. 6735 is inadequate to conduct a people’s initiative to amend the Constituion;
d. The signatures should be submitted alongside the petition in order to vest validity on the petition;

As a result of the case, the petition to lift the term limits (a strategy employed by FVR) was defeated. Having said that, why are the new proponents invoking R. A. No. 6735 notwithstanding its previous defeat?

a. Because it was a tight decision won only by a single vote;
b. Because the present Chief Justice Panganiban and Justice Puno wrote dissenting opinions advocating that R. A. No. 6735 is adequate to conduct a people’s initiative;
c. Because most of the justices who voted to dismiss the people’s initiative have retired and a new batch of justices of the Supreme Court have taken over;

Given this scenario, it is not surprising that ChaCha proponents are advocating a re-examination of the Santiago case, not because of the strong legal arguments but simply because there is a sufficient number of justices that can reverse Santiago.

But here is my analysis why Santiago cannot be reversed without inviting suspicions that the justices have been co-opted to grant the people’s initiative.

1. The majority opinion written by then Justice Davide quoted the debates of the Constitutional Commission regarding the provision on Amendments and revisions of the Constitution. Strictly stated, the subject of lifting term limits is simply not an amendment just because it referred only to one subject. Since it involves a monumental perpetuation of power for incumbents, the Supreme Court considered that particular subject a qualitative change, not a mere quantitative change.

Therefore, being a qualitative change which can only be done through revision, amendments will not be allowed by way of people’s initiative since the records of the 1987 Constitution showed that a revising the constitution cannot be the subject of a people’s initiative.


2. The majority opinion quoted the debates in the Constitutional Commission as a basis for justifying why R A No. 6735 is inadequate to handle R. A. No. 6735. On the other hand, Justice Puno quotes the debates for R. A. No. 36735. In fact, Justice Panganiban, in his dissenting opinion, did not quote either the records of the Constitution or the records of the debate. Justice Panganiban only spoke of the need to construe R. A. No. 6735 liberally as a principle of statutory construction but had no contextual basis in either the records of the Constitutional Commission or of the debates on R. A. No. 6735 as justification.

What we are looking at is the conflict between the 1987 Constitution and a law, R. A. No. 6735. It would be difficult to reverse the Santiago case because the ratio of the case dealt with the philosophy behind what a revision or an amendment means. In that case, we only had one subject, lifting of term limits, and yet, the Supreme Court considered that as a revision which cannot be amended by people’s initiative. In the present controversy, the proponents claim that there is only subject, parliamentary change, and therefore, can be the subject of a people’s initiative.

But if the Supreme Court justices considered the mere lifting of term limits a matter of revision, and not a mere amendment, how much more when talk is about amending two major Articles of the 1987 Constitution, namely, the articles on the Executive and Legislative Departments? To justify the validity of the present people’s initiative, the justices will have to explain itself, with great difficulty, why Articles 6 & 7 can be amended by a people’s initiative and without giving the impression that they have been co-opted.

Santiago was very clear. People’s initiative can only be used for amendments and not for revision of the constitution. In the present case, assuming for the sake of argument that the present amendment involves only one subject, the argument remains thus: to change the form of government involves a fundamental change in the philosophy of government and therefore, cannot be done by mere people’s initiative.

How the justices can worm themselves away from this fundamental philosophical argument, I cannot fathom. But if the Supreme Court shall reverse itself unconvincingly on this score, the Panganiban Court will be no different from the Fernando Supreme Court of the martial law years.

What little confidence we still have on the Supreme Court given its turtle pace in deciding constitutional cases, I continue to hope that they will do the right thing.

The Humanity Of Blogging

Ever since June of last year when I decided to blog on a regular basis, I never realized that it would become some sort of a reunion where bloggers meet first through their writing and then proceed to meet each other in the flesh, some of them - chance encounters while others, a conscious choice.

In the course of less than a year, I had the privilege of meeting new people in the Philippine blogosphere. I also had the opportunity of meeting long lost friends, new acquaintances, and a number of bloggers who seem to hate me with a passion by virtue of contrasting beliefs.

Over all, the exposure to the blogosphere has been a refreshing experience, drawn together perhaps by the novelty of the medium coupled with the realization that bloggers are essentially trailblazers in a new field, establishing protocols as we move along (though we do not seem to care about our individual and corporate legacy to the field of punditry or literature).

All in all, friend or foe come home to nest in their respective blogdoms and visit other people’s sites either to spite, anger, inspire or simply thank each other. In short, humanity abounds far more in cyberspace than in the real world. Shame is replaced by courage, embarrassment by facility, human debate by by ethernet discourse. Our humanity magnified a hundred fold. That is the power of blogging.

And it is in this milieu that I have bumped into people whom I would never dream of meeting had it not been for blogging. People like Manolo Quezon III whose clarity of mind and incisiveness of reasoning manage still to accommodate the blithering banal blabbering buffoons one mostly hears from the House of Representatives. He is too kind even when he cuts the impertinent fools down.

People like Ricky Carandang whose Socratic method of questioning can slice through all the cowdung that one normally hears from people who obfuscate and muddle the issues. One must expect the unexpected from Ricky when he asks his questions and comes prepared the guest must. He does give law professors a run for their money when he asks his questions. It’s a shame (or a blessing, depends on your point of view) he never became a lawyer. What I would like to see is how he will grill El Kapitan if ever that taipan decides to guest on his show.

People like techie Josh Villanueva of GMA-7 who I knew way back in 2000 as a Production Assistant but now one of the honchos sitting on the right side of Grace de la Peña of GMA News. Josh has a wonderful and cheery disposition whose Christian outlook in life pervades his music and his relationship with his fellowmen. Had Mahatma Gandhi seen Josh, the “seditious fakir”, as Churchill described him, would have converted to Christianity.

Helga, a veteran of the EDSA Wars (like the Clone Wars), whose patriotism inspires those around her and whose single-minded belief that this administration has lost its moral compass to govern this country causes her to question genuinely the moral fiber of those who believe that we ought to move forward while letting Mrs. Arroyo run this country. She will never lose her enthusiasm for a fight especially now that the People’s Initiative is underway. That’s the Viking soul in her!

And last night, I had the privilege of meeting Ms. Ellen Tordesillas of Malaya. A very gentle lady, she writes without fear in the broadsheets, calling a spade a spade from Mrs. Arroyo down to her lackeys, Messrs. Defensor and Bunye. Facile with both English and Filipino, she criticizes Mrs. Arroyo without mincing words using both high speech and vulgar vernacular to drive a point. It is such a joy to read her work but most of all, she shares her humanity and her illness with us through her blog. She is tough as nails and a survivor!

Very recently, I also got a chance to meet up with Atty. Marvin Aceron during the Black and White debacle at Manila City Hall but whose narration of Filipino famous trials I continue to read with gusto and await for the next trial.

The blogosphere has allowed me to meet all these wonderful people. I would wish to meet John Nery, the firm believer in the chain of command and one who believes that those who do not practice journalism should not lecture those who do; Prof. Punzi whose lectures seemed to have recently given way to pathos and angst; the gadfly Dean Jorge Bocobo who posts difficult comments on other peoples’ blogs which caused his banishment and exile from Sassy’s blog.

These and more are what make blogging an exciting reality. The ability to convey your thoughts freely without editorial control other than your own, posting it in your own online journal and eliciting comments, fair and foul, to increase (hopefully) the quality of hte intellectual debate on the pressing issues of the day.

And when bloggers meet, the feeling is no longer as though meeting for the first time. Rather, so much is already known prior to the meet because bloggers have by and large revealed themselves and their innermost thoughts to those who care to read them. That is humanity at work, the unspoken common bond of brotherhood made known though the tip of our fingers, touched by our ethereal presence in cyberspace and read by many who yearn to reveal their humanity in a different medium.

Like Obi Wan Kenobi, blogging may be our last hope - to record our humanity before all sense of outrage give way to apathy and indifference.

The BnW Baywalk Stroll and BP 880

Q: Was the PNP right in arresting Dinky Soliman and Enteng Romano for crossing Roxas Boulevard on the ground of violation of B. P. Blg. 880 solely because they were wearing black and white t-shirts calling for the blanket removal of GMA and other government officials?

A: No.

Q: Does the absence of a mayor’s permit automatically prevent people from freely exercising their right to peaceably assembly?

A: No.
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First of all, it is settled under the Bill of Rights provisions of the 1987 Constitution that every citizen has the right to peaceful assembly. Section 4 of the Bill of Rights is very clear in this regard:

“No law shall be passed abridging the freedom of speech, of expression, or of the pres, or the right of the people peaceably to assemble and petition the government for redress of grievances.”

What is the role of B. P. Blg. 880 (“880” for brevity) or The Public Assembly Act?

880 is not an absolute prohibition against peaceful assembly. It does not mean when one fails to obtain a permit, the rallyists cannot hold a rally. This has been conveniently called the “no-permit, no rally” policy. That is wrong.

880 is a mere Time, Manner and Place Regulation or what we call a TMP Regulation. 880 kicks in only if the rally will inconvenience the rights of other people who do not choose to participate in the public assembly. Thus, what are taken into consideration under 880 are the following:

a. Will the time they propose to rally inconvenience the public?
b. Will the manner of the rally inconvenience the public? and
c. Will the place they hold the rally inconvenience the public?

When the Black Friday Protest held their Baywalk stroll, Col. Pedrozo should have asked himself the 3 questions. The time of the stroll was 5:30 p.m., the manner of the protest was peaceful, silent, and a single-file walk to and in Baywalk with the thumbs-down sign.

Whatever faulty intelligence they claimed to have gathered, the simplest thing for the PNP to do was to consult the Black Friday blog and they would have easily seen the mechanics of the protest. What was so menacing about giving the thumbs-down sign? Had he singularly applied his own discretion, the Baywalk stroll would have been just that – a walk in the park.

Incidentally, we often hear General Querol or Supt. Pagdilao say that it was a judgment call of the police on the ground. That is utterly false! Up to until Enteng was arrested, Col. Pedrozo was talking with someone and taking orders from his cell phone and the moment he held Enteng’s clothing, Pedrozo was still on his cell phone being barked with orders to arrest. That was caught on videotape. So, any notion that the order of arrest was Pedrozo’s own doing or judgment call was as illusory as concluding that Lee Harvey Oswald’s shooting of JFK was purely his own judgment call.

Since the Baywalk stroll did not inconvenience the public like causing traffic or spreading mayhem and chaos, there was therefore no need to apply for a mayor’s permit. Strictly speaking, what rally were they talking about? No speeches, no placards, no banners, only the t-shirts which proclaimed: “PATALSIKIN NA, NOW NA”

Ah, but that is political speech found on the t-shirt and therefore, they must be banned. Moreover, since Dinky is known foe of GMA, her wearing a t-shirt critical of the government and walking to Baywalk constitutes a rally.

Wrong!

Apart from the fact that 880 is a TMP regulation, 880 is also a Content Neutral regulation. 880 cannot regulate the holding of a rally on the basis of the political content of their statements, i.e., you will be barred from holding a rally if it is critical of government. That is a content-based regulation which is almost always unconstitutional.

Criticism of government is considered a “high value” speech in the hierarchy of free expression. Thus, in the eyes of the Constitution, government criticisms are protected speech and cannot be banned by content based regulation.

This is exactly what happened to Dinky. Col. Pedrozo claimed that the message of the T-shirt was highly critical of Mrs. Arroyo that in his understanding of BP 880 or the lack of it, Dinky and Enteng should be arrested for failing to obtain a mayor’s permit. To repeat, 880 cannot be invoked to arrest someone whose beliefs are different from the government. 880 is a mere TMP regulation which is color blind when it comes to statements for or against the government.

In addition, Col. Pedrozo claimed that he arrested Dinky and Enteng because he knew what they were going to do. In other words, he had foreknowledge of the planned actions of the two. I am reminded of the pre-cognitives or pre-cogs in Steven Spielberg’s Minority Report. The pre-cogs can identify the criminals before the crime can occur and the policemen would always arrest the criminal a second or two ahead of the planned crime.

In Dinky and Enteng’s case, they just started crossing Roxas Blvd. on the way to Baywalk when Col Pedrozo got a cell call from his pre-cog that Dinky et al. were going to commit a crime. In short, since there was a tendency that the Black Friday Protes was going to sow danger, he immediately ordered their arrest even before they set foot on the Baywalk.

At the joy of sounding redundant, Pedrozo is wrong!

880’s regulatory coverage comes into play only there is a clear and present danger to the public. That is stipulated in Section 6(a) of 880. As described earlier, the only thing the Black Friday Protesters will do once they set foot on Baywalk was to set do the thumbs-down sign. No clear and present danger will occur if 22 people do the thumbs-down. Not being in Rome, there are no gladiators to be murdered.

But instead, Pedrozo applied the dangerous tendency rule which is so passé already. It has been struck down by the Supreme Court as a very subjective standard of enforcing public order or safety.

Nowithstanding what 880 should be, that law should be repealed on the basis that it is so broad and so generic that it practically covers all forms speech and leaves the discretion whether to grant a permit not on some objective legal standard but solely on whether the mayor of the particular city or municipality is friend or foe.

After all said and done, the existence of 880 was providential to anti-GMA forces. It finally showed that this government does not brook any dissent, continues to curtail our freedoms, and in the process, gained for us more adherents and steeled our resolve to fight for the long haul.

And I say: Bring it on!

The principle of free thought is not free thought for those who agree with us but freedom for the thought we hate." - Justice Oliver Wendell Holmes

Capital of Repression III - The Release Of The Twins

From WPD, Marvic, Marlon, Manolo, Leah and I rode in one car and proceeded to the Manila City Hall. During the day, the Manila City Hall is a typical government edifice swarming with people, fixers and cops as though it was a den of thieves.

By night however, it is a splendid sight to behold. The powerful lamps light up the City Hall reminding us of its Commonwealth roots, were it not for the hideous pale color that hogs the entire City Hall.

At around a quarter before 11 p.m., Marvic, Marlon and I proceeded to Rm. 317 where Inquest Fiscal Glenda Ramos held office. But before we arrived there, media, as expected, was already ahead of everyone. When we entered her room, the fiscal was still conducting some inquest proceedings on vagrants.

When she saw us, she knew the case at hand. She demanded only the Arrested Twins, their lawyers and the police-complainants ought to be present. But we informed her that President Cory Aquino was here and it would be in keeping with the dignity of being a past president of the Republic that she be allowed to witness the whole proceeding instead of waiting outside. Fiscal Ramos relented.

When our case was called, Supt. Pedrozo was examined by the fiscal. As her typical practice, she required Pedrozo to recite the facts of the case. The fiscal specifically asked him what he meant by “lighting rally”. It should have been lightning rally but haste and presence of the Cory made Atty. Paglinawan commit the laspsus. Pedrozo could not categorically give an answer. After all, how can the Baywalk Stroll be termed a lightning rally when the Baywalk Trolls saw the strollers eating their curds and whey at the Aristocrat.

If Supt. Pedrozo was a lion growling in the Aristocrat sidewalk, he was a picture of a meek lamb being led to slaughter. The fiscal asked her searching questions (though not necessarily in this order and I may have paraphrased) like:

Q(uestion): Was there violence”.
A(nswer): No, Ma’m;

Q: Were there streamers, placards, banners?
A: No, Ma’m; Q:

Q: Was it peaceful?
A: Yes, Ma’m.

Q: What do you mean by lightning rally?
A: We have intelligence reports of what they will do.

Q: What will they do?
A: Chant the words in their t-shirt.

Q: If there were 50 of them as you claimed, why did you only arrest two of them?
A: Because only two were crossing the street.

Q: I don’t understand, where were the participants situated?
A: Aristocrat sidewalk.

Q: They were not in the Baywalk.
A: No, Ma’m.

Of course, Supt. Pedrozo was a meek and mild mannered man before the fiscal. He did not prepare his own affidavit. The contents were prepared by Supt. Paglinawan in our presence. He was briefed of the contents shortly before we left for the City Hall.

In fact, Fiscal Ramos could not understand Supt. Pedrozo’s account. So, she asked Pedrozo to draw the situation. Although cross-examination is not allowed in inquest and preliminary investigations, the fiscal allowed Marvic and I to ask questions on the positions of the protagonists on the drawing. The policeman admitted that he arrested them while the two were crossing the street. In other words, they never even had the chance to do the thumbs down sign on Baywalk.

After grilling Pedrozo, the fiscal decided that based on the documents presented and the absence of a Counter-Affdavit from the two, she cannot file an Information before the Court. She suggested therefore to refer the case to further investigation. That was the objective we wanted in the first place in the event the complaint cannot be dismissed outright by the inquest fiscal.

But unlike in Quezon City, and according to the fiscal, even if no Information is filed against the two, they will still remain under the custody of the PNP, i.e., they stay in jail overnight. Supt. Pedroso clarified that they want to take custody of Dinky and Enteng but the sense I got from him was that he was under very strict orders to secure the arrest and custody of Dinky. He kept on arguing even when the fiscal shushed him already.

To which we, lawyers, disagreed. These were the same set of circumstances that happened to Prof. Randy David in Quezon City and he was released pending further investigation.

Marvic mentioned to the fiscal that she either files an Information in Court or set the two free. Otherwise, they will be guilty of Arbitrary Detention. I also reasoned with the fiscal that considering that since she cannot confidently determine that the facts amount to a violation of B. P. Blg 880, the Arrested Twins therefore continue to enjoy the presumption of innocence and must be released.

In addition, I mentioned that the Joint Affidavit was defective as Pedroso himself did not have personal knowledge of what the Black Friday Protests entailed and that he cannot even define what a lightning rally was.

Marvic decried the laws were applied unevenly in Manila. It is very clear that criminal procedures are governed by the Rules of Criminal Procedure but the fiscal said that Manila has its own charter and therefore, the remedial rules on procedure apply differently.

Our arguments with the fiscal went back and forth. Until the fiscal said that she is willing to release the two to the custody of Cory Aquino. To which Cory jestingly told the two: “Pagnasa custody ko kayong dalawa, magbehave kayo ha!” .

Marvic then mentioned that custody of the two need not be reposed only on Cory but also on Congresswoman Dina Abad (spouse of Butch Abad) and on Congressman Noynoy Aquino. Thereupon, I went outside and called Noynoy and Dina in.

As an aside, when Congressman Noynoy came in, the fiscal addressed him as Senator Aquino to which I kidded: "That is a prophetic statement". That mistake or prophecy brought a certain levity to the whole proceeding.

Then the fiscal wanted to see how many people participated and she was told 22, more or less. So, again, I went out and called out all who were wearing black shirts to come in and show to the fiscal that they were only 22 and not 50 as claimed by their Joint Affidavit of Arrest. The scene was like a local chieftain dispensing justice to his savants.

But just to be sure that she will still have a job on Monday, Fiscal Ramos had to secure the approval of her superior who I heard her addressed him as Chief. When she reached the Chief, she explained the situation to him regarding the custody of the two. The Chief told her to call him back in 15 minutes. Our speculation was the Chief called up someone higher to make sure that he does not lose his job come Monday. As to who the Chief called, we can only speculate.

After 15 minutes, the fiscal called back her Chief and got instructions which the fiscal noted down. The instructions were upon verbal approval of the Chief, Dinky and Enteng were going to be released from custody, and pending further investigation, they will receive subpoenas to appear at the next scheduled hearing to be provided in the subpoenas. This, I think, was undoutedbly made possible out of respect to the former president Cory.

When they went down to the ground floor, a crowd had gathered outside the City Hall and as soon as they saw Dinky and Enteng coming out of the building, they broke into applause, lit the candles in a formation of the word “FREE” and sang the walang kamatayang “BAYAN KO”. Leah Navarro was there to catch the events on camera. An inspiring sight.

It was an exhaustive night for all, but especially to Dinky and Enteng. It was providential that Cory insisted on coming. Even when she is no longer in power, her presence continues to exude all the good, all the proud, all the noble that was EDSA.

In the end, we were happy to secure their release from the custody of the PNP. That was the main objective of the whole exercise last Black Friday night. Quite obviously, they failed to spite, humiliate or insult Dinky. I guess better luck, next time.

Has the dam broke? I hope so.

Come join the next Black Friday Protest. It will be worth a semester of Civics class in college.

Capital of Repression II - The Long Wait

I thought that the Black Friday Protest would always be peaceful and non-confrontational, i.e., something the police would not even bother dispersing. A description of the previous protests would show its creativity but in terms of attracting police attention, the protests were not in the league of those water-cannoned so many moons ago.

I will beg the indulgence of Helga. Our narration might converge on some areas that night but I will merely touch on my personal experience.

And so, it was to my surprise that last Friday, I got a call from Leah Navarro that the Black and White convenors and friends who participated in the Baywalk Stroll were blocked and Dinky Soliman and Enteng Romano were arrested while they were just crossing the Ped Xing a few steps after stepping off the Aristocrat sidewalk. If Dinky, Enteng and the Black Friday Protesters were the Baywalk Strollers, Supt. Pedrozo and his ilk were the Baywalk Trolls.

A few minutes after the call, I called up Leah and told her I will be going to the Western Police District (“WPD”) Headquarters. When I reached WPD, media was already there. What would have otherwise been a nominal news item buried in page 8 of any broadsheet became a page-one event. Indeed, the Black Friday Protests have arrived.

When I entered WPD, Manolo Quezon III and Leah Navarro ushered me into the small mezzanine room of Superintendent and Atty. Paglinawan, the PNP lawyer preparing the Joint-Affidavit of Arrest. Once inside, I saw the Arrested Twins, Dinky and Enteng, seated side by side in a sofa where they were poster models of steeled serenity and jovial wit. Butch Abad was the first lawyer present.

I met Atty. Paglinawan and for the next two hours, more or less, he was at his laptop typing the allegations of the Joint-Affidavit of Arrest consulting his copy of B. P. Blg. 880 (Public Assembly Act), interrupted incessantly by calls to his cell phone (I counted no less than 8 times to which he would rise up, turn his back, cover his mouth and speak in a low tone). At the same time, he would be fielding questions from a very aggressive media who seemed to have forgotten that PP 1017 has been lifted in all but practice.

By then, Hector Soliman arrived, followed a little later by Marvic Leonen who came all the way from UP and Marlon Manuel who came from Ateneo Rockwell. All in all, there were five of us lawyers, 3 lawyers from the Ateneo tradition of Fr. Bernas, not that of Intengan, and 2 from the ever-reliable Malcolm Hall of UP. Between and among the five of us, we had more than 85 years of law practice.

Since the room was small, Atty. Paglinawan, who by then, had not yet even finished the Joint Affidavit of Arrest, requested all of us, including media, to descend to the first floor. Once downstairs, we just waited and waited and waited whether the multiple-paged Affidavit being prepared by Atty. Paglinawan would see the light of the night, it being already past 9 p.m., I think.

While we were waiting, a source from within the WPD approached and informed Manolo the reason the Affidavit was taking time to be finalized was to ensure that no inquest proceedings will take place that night in order to ensure the detention of Dinky and Enteng, the object purpose of the whole delay was to humiliate and embarrass Dinky.

Of course, Manolo, not knowing the identity of the source, just relayed the information to us. However, on hindsight, the source appeared to be reliable because when we finally saw the Joint Affidavit of Arrest, it was incredibly a mere two-page Affidavit which by Atty. Paglinawan’s long years of experience with the PNP would have expertly drafted a two-page Affidavit in a manner of minutes.

So, what changed?

As correctly described by Helga, the arrival of former president, Cory Aquino, changed the temper and atmosphere of the whole scene. Media got excited, Dinky and Enteng got re-energized, and Cory, in her fashionable yellow (like patis, being pirated by the Thais), brought strength, courage and moral support not only to the two but to all the participants of the Baywalk Stroll. Even the policemen and women who were clearly exhausted and totally spaced out with the whole brouhaha felt an air of soothing calm with Cory’s presence. The potency of Cory magic was very evident that night. Through it all, Cory stayed up with the Arrested Twins, giving aid and comfort and just as determined to see the whole thing through.

Soon thereafter, Atty. Paglinawan informed me, Marvic and Marlon that the inquest will be conducted in the City Hall in the office of Assistant City Prosecutor Glenda Ramos, but not before I saw Atty. Paglinawan coached and prepared the two police-complainants, Rose Sy, the Asst. Station Commander and Marcelino Pedrozo, the Station Commander of the 9th Precinct of WPD on the second floor of the WPD.

To Manila City Hall we went.

(Next: The Release of the Twins)

Kikoman's Noted Role

Now that photos of election tampering by Atty. Roque Bello have come out into the open courtesy of Malaya’s Ms. Ellen Tordesillas’ blog here, here and here, one should now ask the role Senator Kiko Pangilinan played in the whole Noted affair.

While he has called for the resignation of GMA during the 7 July incident, we have not yet heard him speak of his role in the canvassing of the election returns.  

The evidences are really quite damning for a lawyer like Kiko to deny that there was cheating in the last presidential elections.  We have heard the Garci tapes recount manipulation by election personnel, collusion by military officers, and hands-on queries by the highest official of the land to subvert the popular will.

We have heard personal eyewitness accounts of election operators like Zuce who moved heaven and earth to ensure the dubious victory of Mrs. Arroyo. We have heard Sgt. Mendoza decry the dirty tactics of Garci and his braggadocio.

Now, we see election returns, documentary evidences, being tampered by people familiar with election procedures in order to ensure the one million margin of victory.  

In all these, there is nary a repentance, a protest, nor even a whimper from Kiko to apologize for his role as Chairman Noted. Knowing what he knows now, it is time for him to speak up and tell our countrymen that “HE IS SORRY” for the role he played in the elections.  It is not time to vacillate and expect the people to forget what he did.  Time may heal all wounds but he who chooses to run for president in the future will find that time does not forget an unrepentant sinner.

If he wants a clean slate by the time Sharon Cuneta goes up on stage to campaign for him as president, it would do well for him now to own up to his mistake and tell the whole world that knowing what he knows now, it was a mistake to railroad the proclamation of our current head of state.

But if he does not, Chairman Noted will carry that guilt with him like a millstone on his neck or like Sisyphus doomed to roll up the boulder for all time. The press, the people and those old enough to remember his role will not be so kind to him when he runs for president.  

‘Fess up, senator.  There is nothing to lose but your pride and everything to gain by your repentance.

Rebellion, Sedition, Withdrawal of Support Etc.

Just in case any in media are going to be prosecuted for inciting to sedition, here is a consoling thought – you won’t go to jail subject to certain qualifications.

If you are charged with inciting to sedition, the penalty for that particular crime is prision correccional in its maximum period or a fine not exceeding 2,000 pesos. That means you suffer imprisonment of 4years, 2 months and 1 day to 6 years.

Under the Probation Law, if you are convicted with imprisonment of not more than 6 years, you are entitled to probation. However, when one applies for probation, one loses one’s right to appeal the case but if you feel that you are innocent and can obtain justice in another dispensation, you can appeal and fight it out hoping that the new set of justices would have adjusted to a more favorable climate.

Can you be convicted with rebellion? Under the present set of circumstances, No.

How can a civilian or any of the military generals be convicted of rebellion when there was no public uprising and taking up of arms against the government – elements necessary for the successful prosecution of Rebellion under the Revised Penal Code. The 1989 December coup was a clear case of rebellion.

But for those who have been presently charged with rebellion, the elements of the crime never occurred at all. The most that the generals can be charged with is attempted rebellion, i.e., if there is any concrete evidence of amassing of arms for the purpose of a violent takeover. But if the generals were merely talking of withdrawal of support which strictly implies non-violence, then rebellion as a crime must fail, whether consummated, frustrated or attempted.

For the civilians, one can be charged with conspiracy and proposal to commit rebellion. The penalty for conspiracy to commit rebellion is 4 years 2 months and 2 day to 6 years or a fine not exceeding 5,000 pesos while the penalty for proposal to commit rebellions is 2 years, 4 months and 1 day to 4 years and 2 months or a fine not exceeding 2,000 pesos.

But the question remains: if the conspirators were discussing withdrawal of support, where is the crime of rebellion if there was no armed uprising?

One must remember that the general principles of criminal law and criminal procedure dictate that to successfully prosecute any crime, the prosecution must prove each and every element of the crime with proof beyond reasonable doubt. And if there is any iota of doubt, the doubt must be construed in favor of the accused.

The solution to the government’s quagmire: Enact a law making “withdrawal of support” a punishable crime. Then and only then, will future plotters be punished.

Let's 464 Them

While having dinner tonight after an arduous lecture on Criminal Procedure, I saw Gen. Querol in Tina Monzon Palma’s Talkback lecturing and gobbledygooking Atty. Neri Colmenares and Joshua Mata.  Was he not supposed to be in the Senate this afternoon to justify the PNP’s actions during the “emergency”?

That led me thinking. Why can government factotums appear in government-monitored ANC but refused to appear in the hostile Senate? And when ANC invites them on the ground of fair play and these officials accede to the invitation, is it not really an insult to media’s intelligence that these cowardly fools would rather face a docile media rather than perform their duty in the Senate in aid of legislation?

The search for truth cannot begin in ANC while these people refused to appear before the Senate. They prefer ANC to the Senate because unlike the Senate, ANC is mandated to be balanced and objective as it can be.  Unlike the Senate, ANC is simply too genteel to be a holds-barred, name calling, nerve-inducing experience for government prevaricators and propagandists.  Even Ricky Carandang and Korina Sanchez are constrained to exercise restraint even when the answers are so downright ludicrous and so “Ronnie Nathanielzisch”.  

Government talking heads appear in ANC not to tell the truth, only to obfuscate and bifurcate the issues.   It is no longer important to appear before the Senate to suggest measures to improve a law, only to imply that in their non-appearance,  the Senate has become a doddering, decrepit, despicable deadwood rendered irrelevant by the machinations of the Palace.  The Senators can whine and bay at the moon all night long, but they cannot even plot a concerted strategy to restore their dignity.  

I believe the remedy to compel the Executive Department to appear before the Senate is no longer with the Supreme Court or any government institution.  Ironically but not surprisingly, the hand that rocks the cradle belongs to Ricky Carandang et al at the ANC.  

ANC should withhold its invitation to these government functionaries until such time that they are brave enough to face the grilling and the barbecuing in the Senate.  The Executive Department did a 464 on the Legislative Department.  It is time that the Fourth Estate return the favor to the First Estate. No appearance in the Senate means no appearance for cowards in ANC.  In other words, let ANC 464 the Executive Branch.

Talk about responsible media.  It’s about time!

Presumption of Regularity

If there is one questionable presumption that has emboldened the government to strike with impunity, it is the disputable presumption of the regularity of the acts of government. That is found in Rule 131, Section 3(m) which states that:
“Sec. 3.     Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:
xxxxx               xxxxx               xxxxx

(m)     That official duty has been regularly performed;”

This has been the battle cry of the Arroyo government.  The following governmental actions have invoked, implicitly or explicitly, this disputable presumption:

(a)     Calibrated Preemptive Response;
(b)     E. O. No. 464;
(c)     Proclamation 1017;

The defenders of the government have time and again raised this specter.  It is no less devious than the divine right of kings which has now been translated to the maxim that the State can do no wrong.      No longer do the powers rule at the sufferance of the governed, we are left to the mercy of the whims and caprices of the governing powers.  

But there is nothing regular with Lomibao’s hounds and Querol’s lapdogs when they broke up a rally which was refused permit by the demons in Manila and Quezon City. In fact, the law on permits specifically provide (and not a mere presumption) that an un-acted permit application is deemed granted.

There is nothing regular with E. O. 464. All the president’s men have hid beneath the president’s skirt. If even the bravest and boldest among them would not even step foot inside the Halls of the Senate, how much less the cowardly Rotarian Joc Joc Bolante whom the Rotary Club should either spit out of their enclave or just drop their sanctimonious and hypocritical 4-Way Test.

There is nothing regular with Proclamation 1017 when by virtue of that pronouncement, ignorant government mandarins who think common sense will suffice to interpret law brag about monitoring media, arresting anyone with impunity and lifting a female solon and detaining her without due regard to her status as a representative of the people.

These are the actions of a beleaguered administration.  Martial law is upon us whether we believe it or not.   The government says there is nothing to fear if you are not involved in any manner.  

But that is precisely the point. In a genuine democracy, the government has neither right nor business to threaten anyone that there is nothing to fear.  The government spreads a gospel of fear on us to prevent we, the people, from rising up anew.  What they cannot convince by the inanity of their logic, they will force upon us by our fear for violence.  

And all this has been covered and justified under this wretched presumption.  And what do the justices of the Supreme Court do about it? They refused to issue a TRO against the government because according to the Chief Justice, they had to listen to both sides before a TRO can be issued. That is a novel theory by the Chief.

Really?  Are both sides so equally yoked that the issuance of a TRO would have been so disadvantageous to the government?  I thought the law was meant to favor those who have less in law and in life.  With the government having all the arms, ordnance and manpower and have in fact abused the powers unmentioned in 1017, the very least the High Court should have done was to restrain the Executive Department from manhandling we the people or at least some parts of us who seek to exercise the Bill of Rights.

That it chose not to do so shows the pervasive ill effect of the disputable presumption of regularity. Even the High Court, the very temple of justice, has been blindsided to accede to the Executive Department’s inanities.

It is time for the Supreme Court to rise to the occasion.  We hope to await in hope.

Hubris

Saw over the newspaper GMA’s latest vain use of God’s name, to wit:

"But I have great faith in God's will. I believe that I am here now because that is the plan of God for me.”

As soon as I read it, the séance I was in conjured the literati and they reminded me not to use God’s name in vain. Specifically, some of them even reminded me of their own quotes on God.

By no means exhaustive, the literary giants are just as incensed as I was in GMA’s invocation of God to perpetuate herself in power. And to use God’s name to extend her reign can best be described in a word: HUBRIS.

So, here are the quotes of the masters of the pen and wit:

"You can bend it and twist it...You can misuse and abuse it...But even God cannot change the Truth"

Michael Levy

"Rebellion against tyrants is obedience to God.”

Benjamin Franklin

"There is no god higher than truth.”

Mahatma Gandhi

"Never invoke the gods unless you really want them to apear. It annoys them very much."

G. K. Chesterton

“Why is it that when we talk to God we're said to be praying, but when God talks to us we're schizophrenic?”

Lily Tomlin

Moving Forward?

Like what Manolo said, it has become a battle of the Epistles. Helga is doing her share of stoking the flames against apathy. Most about anybody straddling the political spectrum either have been enboldened by the barbarism with a pretty face put up by GMA and her sychophants or gotten more fed up by the political howl of the anti-GMA groups.

The battle is everywhere even in my alumni yahoogroup. In response to a classmate who is anti-GMA but who believes that we ought to move forward, I had posted my own epistle to my fellow batchmates from St. Jude. His posting and my response:

"I was never a fan of GMA, but I share the same sentiments as the writers. Couldn't have expressed it any better. I think we should adapt Toyota's new ad campaign "Moving Forward" as our contry's slogan. Enough of the bickerings and lets all think positive. Kaya natin to! Dollar today is 50.93. Isn't that encouraging? As I've said before the silenceof the silent majority is most deafening. My apologies to Atty."

My response:

You are entitled to your opinion as much as I am to mine.

Unfortunately, I do not share your view of Moving Forward for the simple reason that democracy is more than putting food on the tableor seeing the peso appreciate against the dollar. If it were so, Cuba would have been one of the best democracies in the world since it is reputed to have one of the best health care systems in theSouthern Hemisphere.

I agree that we ought to think positive. But if it means to ignore the corruption of this government, hide them under the bushel and move on with our lives, I am afraid I cannot agree.

If your friend's child was murdered and you know who murdered the child, do you tell your friend, think positive and move forward? Will your friend not go the extra mile and see that the murderer be brought to justice? And while going about seeking justice, he minds his everyday chores but with the firm belief that justicewill one day be done.

That is the same outrage of one who voices his opinion against GMAand does something about it. Life goes on and yet the passage of time does not forget the deeds of GMA, nor should economic progress blind us to the fact that she is a liar, a cheat and a thief.

Unlike Jean Valjean who admitted his wrongdoing, GMA denies she is all of the above and goes about insisting that she is the best person to lead the country. How then can we or she even speak of reconciliation when she herself denies the existence of sin and spurns the peace of God?

I am just curious. If the country is doing badly economically, will one agree with those who go out to the streets, justify the political noise, and pray for her reign in government to end? Or will one also tell the country to forget about it and move forward?

I know that some of us are not fans of GMA and I know that many of us do not have the luxury of rallying against her. But having no such luxury does not automatically mean that we should stop clamoring for justice.

You do not need to go to rallies although that would be most welcome. There will be martyrs, there will be leaders and there will be followers. What is needed is not to let government propaganda cow or fool us into toeing their line. And Moving Forward is just one of the many government soundbytes that abound today. We are like the frog that is being boiled ever so slowly to death without even knowing it.

So, who is the greater fool? The fool who insists on the truth or the fool who puts blinders on his eyes and trust this present government to do what is morally right? We dream if we believe in the latter.

In essence, to summarize the position of the silent majority, democracy has become a function of the economy, i.e., since the economy is doing very well, forget aboutGMA's corruption and crimes and lets move forward. Sounds very practical but unfortunately, very amoral. What does that teach our children? And again unfortunately, what does that speak of our values?

Indeed, apathy and indifference, former sins, are the new virtues of this age. They are the weapons of mass distraction foisted by the government. That notwithstanding, Dante has reserved the apathetic and the indifferent to one of the lowest rungs of hell.

My apologies.

Black Friday Protest

Today is a Black Friday protest for press freedom and freedom of expression. Here's the deal:

Plan of action:

1) Wear black

2) You and your friends proceed to any Starbucks Cafe near you anytime between 6 to 7 pm

3) Buy a drink. Each person should queue up at the counter, instead of just one ordering for the group.

4) After getting your drink, take a seat or just stand up outside the cafe and hang out for about 30 mins.

5) When your group decides it's time to leave, someone should give the cue and everybody should do the "thumbs down" sign

6) Disperse as peacefully as you came inSuggested preparations:

1) Invite as many friends, or officemates, as you can

2) If you're an employer or a manager, invite all your subordinates to join you. Offer to "treat" them, if you can afford it.

3) Agree to meet in a place (not Starbucks), or if you're from the same office, arrange for carpooling

4) From the meeting place, proceed to Starbucks as a group. This will have more impact than just agreeing to meet at Starbucks individually

5) If you're staying in a city where there is no Starbucks, any other "cafe" or restaurant will do.

Forward this message to as many friends, relatives, colleagues, and egroups.

Let's paint Starbucks BLACK on Friday.

Fearless Forecast: The Supremes and 1017

Here we are again, our fearless forecast on how Supreme Court will rule on Proclamation 1017.

I will based my less-than-zero prediction on the conduct of each of the Supreme Court justices based on a recent case of Sanlakas v. Reyes where the Supremes ruled on the constitutionality of the GMA’s declaration of a State of Rebellion.

Before I give my prediction, let me guide you to how I think each justice will rule on the petition:

1. Chief Justice Panganiban – if the State of National Emergency is lifted this weekend, the CJ will rule that the filed petitions are already moot and academic on the ground that (a) there is no longer an actual controversy since it has been lifted and (b) the adjudication of the constitutional issue is not indispensable to the case.

However, if the State of National Emergency is not lifted, I think he will rule that 1017 is valid on the ground that the President has broad powers under the 1987 Constitution to make a declaration.

Incidentally, if I am not mistaken, the CJ used to be the Chairman of the Philippine Daily Inquirer. I hope that having been exposed to the workings of the Fourth Estate, he would rule against the constitutionality of 1017 as a form of prior restraint but I am not all too confident.

2. Justice Reynato Puno – the would-be great dissenter in the Panganiban Court. I believe Justice Puno will rule against the constitutionality of 1017 as a form of prior restraint. Of all justices, he is the most profound and competent to handle constitutional law cases.

3. Justice Leonardo Quisumbing – an appointee of Ramos, he joined the opinion of Panganiban in the Sanlakas case. But since his patron’s support for GMA is waning, waning, and waning, perhaps his opinion of 1017 will also wane against GMA.

4 - 7. Justices Antonio Carpio, Renato Corona, Alicia Austria-Martinez and Conchita Carpio-Morales – the first two are presidential appointees of GMA and therefore, their conclusion needs no crystal ball gazing. Justice Carpio-Morales, a relative of Justice Carpio, and Austria-Martinez ruled in favor of GMA in the Sanlakas case.

8 - 9. Justices Consuelo Ynares Santiago and Angelina Sandoval-Gutierrez – These two lady justices ruled against the constitutionality of GMA’s declaration of a State of Rebellion and their opinion that a State of Rebellion amounts to an undeclared martial law has become the oft-repeated battle cry of lawyers against 1017.

It is hoped that both will rule likewise against this present state of national emergency, notwithstanding the fact that Justice Ynares Santiago is the sibling of Governor Casimiro Ynares of Rizal, erstwhile Erap supporter but now GMA ally.

10. Justice Romeo Callejo, Sr. – the noted criminal law and criminal procedural law expert but to me, a big disappointment in the Sanlakas case when he agreed that rebellion is a continuing crime without making any qualification.

This notwithstanding, I believe he will reverse himself considering that unlike the Sanlakas case, the President has arrogated upon herself powers that are required to be delegated by the Legislative Department to her to carry out a declared policy in times of national emergency. He will likewise rule against 1017 as a form of prior restraint.

11. Justice Adolf Azcuna – the Cory appointee. Like Justices Carpio and Renato, this brethren’s ruling will require no crystal ball gazing and will rule against 1017.

12. Justice Dante O. Tinga – a dyed-in-the-wool politician whose son is the mayor of Taguig. He penned the majority opinion in Sanlakas which upheld GMA’s power to declare a state of rebellion. He also stated that a declaration of a state of rebellion is devoid of legal significance which is neither here nor there considering that he voted in favor of GMA’s powers.

13 - 14. Justices Minita Chico-Nazario and Cancio C. Garcia – the unknowns.

The verdict: 1017 will be upheld. 8 to 6 in favor of GMA.