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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

Monday, June 18, 2007

Onto the Next Constitutional Beachheads

Now that the midterm elections are over, focus will shift back to the Puno Supreme Court. Whether or not political debts will have to be paid, the Puno Supreme Court will be comprised of an overwhelming Arroyo appointees and predictably, the president will exact her pound of flesh. To date, there are only 14 sitting justices - Justice Gregory Ong's appointment is in question before the Supreme Court.

These 14 or 15 magistrates will be called upon to decide constitutional issues which will soon come to the fore. Some of the issues that the High Court will confront are the following:

1. The Human Security Act of 2007 - This law goes into effect two months after the elections or 15 July 1007 exactly. And while there are plenty of lawyers who have seen the myriad defects in the law (even the administration has already prepared some amendments), the law is not yet ripe for controversy. But post-July 15, expect human rights lawyers to take up the cudgels for those apprehended under the law.

This law takes on a greater significance because of the recent pronouncements of Chief Justice Puno who seemed to excoriate the Arroyo administration for its failings in the areas of human rights and the continued, unabated extrajudicial killings. From all indications, Chief Justice Puno (who was appointed to the Supreme Court by FVR and as Chief Justice by GMA) wants his stewardship of the High Court to be remembered as the Court that will fight and staunchly defend the fundamental constituional human rights of the individual against the abusive exercise of Executive Power and Police Power of the State.

2. People's Initiative Redux - It is not remote that given their recent debacle, GMA, for her political survival and JDV, for his crass ambitions will once more, through their minions, launch another people's initiative. Predictably, the sycophants will have to modify their petition and follow the ruling laid down in the Sigaw ng Bayan decision.

From all indications, the administration may win this new round of People's Initiative for two reasons: (1) the petition will hew closer to constitutional strictures; and (2) Chief Justice Puno and those who dissented in the Sigaw case are now the majority. Therefore, we will see for the first time in many years, a national plebiscite and it is in this arena where the opposition will be forced to campaign against the new initiative.

3. Military presence in the cities - The Supreme Court will be called upon to interpret the "calling out" powers of the president provided in Article VII, Section 18 of the 1987 Constitution where "The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion."

An interesting issue to be decided on is the judicial and factual determination of the existence of lawless violence, invasion or rebellion that would warrant the fielding of the members of the armed forces in depressed areas. Bayan Muna filed a case before the Supreme Court before the elections and to render it moot and academic, the Armed Forces withdrew their soldiers. But seemingly, Esperon et al. are intending to reposition them anew in urban areas.

4. Executive Privilege - While this has been decided previously against the administration, the latter seemed hell bent to interpret the SC decision in a new fashion that would make the SC decision rather inutile. And with Senator Lacson poised to head the Senate Blue Ribbon Committee, it is not unlikely that we will see new arguments before the Supreme Court on this very same issue.

Knowing how this administration works, there would be other cases that would test the limits of Executive Power. But as long as the justices will look upon their role in the long terms as dispensers of wisdom and sound jurisprudence, we can expect the least powerful among the three branches to be the true bulwark of justice.

If not, the heavens will fall with justice undoing.


Blogger Jaxius said...

Re the presence of the military in the cities, the the matter of factual determination of the basis to call out the armed forces has been answered by the SC in the case of IBP vs Zamora. The SC held that the calling-out power of the President is necessarily discretionary and the judiciary cannot be called upon to overrule the President's wisdom unless, of course, if such power was made in such a way constituting grave abuse of discretion.

More importantly, it seems clear - based on the oscillating position of Malacanang regarding the military deployment in urban areas - that such is not under the calling-out power of the President. There has been no order from Malacanang to conduct such. Indeed, CSAFP Esperon has been consistent in claiming that the deployment is is in pursuance of the AFP's mandate to curb insurgency.

In relation to this, RA 8551 has given back the primary role of conducting counter-insurgency operations intended for the PNP under RA 6975.

To properly mount a challenge to these deployments, to my mind, requires revisiting the case of IBP vs. Zamora, RA 6975 and RA 8551. As can be gleaned from Section 12 of RA 6975, and therefor also in RA 8551, the counter-insurgency operations mentioned therein pertain to "where insurgents have gained considerable foothold in the community thereby necessitating the employment of bigger tactical forces and the utilization of higher caliber armaments and better armored vehicles". The "counter-insurgency operations" being conducted by the AFP in urban areas do not involve these but involve more of the so-called "winning the hearts and minds" strategy which are in the nature of delivering basic services (civil-military operations in military parlance) and law enforcement, activities that should properly pertain to the PNP and other government agencies. Therefore, under the premises declared in IBP vs Zamora, there is an insidious incursion of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.

7:12 PM  
Blogger Ederic said...

May ipinadala akong e-mail sa 'yo. Related po sa HSA. :)

9:23 AM  

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