Friday, March 31, 2006

The Law as Prediction: Javellana at 33

Most of SCRA Volume 50 -- more than four hundred printed pages of the Supreme Court Report Annotated -- is taken up by a case decided by the Supreme Court 33 years ago today, on March 31, 1973 -- JAVELLANA v. THE EXECUTIVE SECRETARY.

Fred Ruiz Castro, then Associate Chief Justice of the Supreme Court, wrote the following Preface to SCRA 50 (March-April 1973)
PREFACE
In his famous essay, the Path of the Law, Justice Oliver Wendell Holmes defined the Law as a prediction of what the Court will do.

The prediction is based on precedents. The governing principle, which has given consistency and stability to the Law is Stare decisis et non queta movere. [Follow past precedent and do not disturb what has been settled.]

The officials enforcing statutory law and regulations, the lawyers and litigants seeking to know the law in concrete controverted cases, and the judges in adversary litigations, should b e well posted on precedents.

The Supreme Court Reports Annotated as a repository of the latest precedents formulated by the highest court of the land, serves the purpose of keeping lawyers, judges and law-enforcing agencies duly informed on the rec ent accretions to the corpus of our jurisprudence.

The copious notes and annotations to the reported cases as well as the cross references to past relevant rulings will lighten the researcher's tedious task of looking for authorities.

I wish to congratulate the Central Lawbook Publishing Co. for having undertaken this useful Publication.

(signed)
FRED RUIZ CASTRO

How ironic, that the Decision, Javellana v. The Executive Secretary, in the perfect 2020 of historical hindsight, in fact disobeyed all past moral and judicial precedent and casuistically disturbed many long settled tenets of democracy, freedom, truth and justice. No greater indictment of the Philippine Supreme Court's past perfidious performance, no greater blot on its juridical record as having touched one nadir, no more sinister omen of its likely future actions and decisions, exists, than this despicable surrender to fascism and dictatorship in 1973.

But don't just take it from me...

GURU OF DESTABILIZATION Father Joaquin Bernas, S.J., noted consitutionalist and a literal forefather of the 1987 Constitution, whom Justice Secretary Raul Gonzalez has recently accused of being the Guru of Destabilization in the Philippines, recently wrote in the Philippine Daily Inquirer --
The Supreme Court As Legitimizing Agent (PDI) ... Thus it is that, in the history of our nation, there have been instances when the Supreme Court has legitimized official action offensive to human rights and disruptive of constitutionalism. Hence, as we await the decision of the current Supreme Court on the constitutionality of the gag rule in Executive Order 464, and of Proclamation 1017 and the various official actions it occasioned, as well as the uses of BP 880, it might be salutary to review how our Supreme Court has sometimes, to our national regret, played around with sacred constitutional principles...a majority of the Supreme Court were of the view that the Constitution proposed by the 1971 Constitutional Convention was not ratified in accordance with the requirements of the 1935 Constitution. In the end, however the Court accepted the cryptic conclusion that the new Constitution was already in effect....We are again at a crucial moment in our history when the Supreme Court is challenged to make decisions that can either weaken or strengthen constitutionalism in the Philippines. Meanwhile, the executive arm has been behaving as if martial law had been declared. Every official act so far done, unless contradicted by the Court, will continue to enjoy the presumption of legitimacy.
AN ETERNAL PRINCIPLE is to be found in Fr. Bernas essay where he says that "the Supreme Court has legitimized official action offensive to human rights and disruptive of constitutionalism." For he could not openly have said and published such a characterization of Javellana in 1973.

That he CAN, is a point of great, if cold, consolation to us today.

That he DOES, is a sign of how far things have gone, once more, in the wrong direction.

Thirty-three years after Javellana, it may be the very template being assiduously studied yet creatively applied, to the service of a new autocrat in Gloria Macapagal Arroyo, just as once it was put in the service of the dictator Ferdinand Marcos. The same elements are there with new ones: a President at bay, charter change, plebiscites, martial law, barangay assemblies and Supreme Court decisions. Javellana is actually hard and painful to read, as every paragraph reads like the morning news, as indeed we seem to be REPEATING the history we've just forgotten -- at an even lower cycle in the helix spiralling down to the ranks of the unfree countries.

Reading Javellana today also sheds old light on the Executive's present actions and suggests a sinister new element to the present-day Palace moves: the Executive is being coached by a legal mind that has complete knowledge of these precedents and is anticipating the legal and judicial road ahead, by shaping the Executive's orders, decrees and actions toward a goal of mutual survival.

Justice Castro, quoting Oliver Wendell Holmes says that the Law is a PREDICTION of what the Court will do. And so it is! Reading Javellana explains a lot about what Malacanang Palace has been, is, and will be trying to do.

PASS YOUR PAPER TIME: But it seems to me that all the Edsa 2 Chickens are coming home to roost -- right where they were hatched in January, 2001! Panganiban's procrastination on all these cases of transcendental importance can last only for so long before the delay turns scandalous -- like a rotting fish head in the noon day sun at Padre Faura. It's almost Pass-Your-Paper-Time for Artemio Panganiban and that mysterious company of men and women that DARE to call themselves today's Supreme Court.

The vast audience of history awaits to JUDGE them.

RELATED:
Only the Aristocracy Cares About the Eternal Principles
Davide Supreme Court Legitimized Military Mutiny For Regime Change

47 comments:

Lord Dracula said...

I have to look for SCRA 50 online.

Just the same, perfidy's afoot.

Rizalist said...

I don't know if it's available online LD. But the link in the post will get you to the Main Decision itself.

ricelander said...

What would you think would ever make the SC justices "pass their paper" now? The tolerance level of this bunch does seem as outrageously scandalous as their appointer. I have a feeling baka mauna pa ang favorable ruling sa palace-initiated people's initiative. If motivated, I mean, properly motivated by nice rewards convincing enough to make one want to redefine his parameters of honor and dignity, who knows? haha

Edwin Lacierda said...

DJB,

They just appointed Presi Velasco as new associate justice whose loyalties to Lakas are well known.

Frankly, I do not see how the present crop of justices can justify RA 6735, without being accused as lackeys, when the majority opinion justified their decision with the records of the Constitutional Commission.

Though I admire his opinions now and then, even Puno's dissenting opinion was not that convincing and could not subvert the clarity of the debates that revisions do not fall under the jurisdiction of a people's initiative.

The Supreme Court is treading on dangerous ground. What little left of its moral ascendancy is being eaten away by delays, tentativeness, and a predilection to side with anything that involves the political survival of this present dispensation.

It is 1972 all over again but with a mole, a smile and a botox to desensitize even the most discerning individuals.

The Ghost of Javellana has come to roost.

Atty-at-Work said...

Dean, thank you for this really interesting piece of history...I never noticed that today is the anniversary of Javellana (nothing new, really, my wife always knows that I'm a dimwit when it comes to remembering anniversaries =). By the way, my father once told me that I'm named after Chief Justice Fred Castro, who was still a Justice when I was born. I never tried to check what's the legacy of CJ Fred Castro, and whether or not I should be proud of it. Perhaps this is the perfect time..

Rizalist said...

Fred,
You'll never believe how this post happened. I woke up earlier than usual this morning, it was still dark. Stumbling around our hallway, I bumped, rather hard, against a bookcase there. Out fell SCRA 50! Which I did not know contained 400 pages of Javellana! I didn't know about march 31 either until i opened that book in the bathroom, right to page 30 where Javellana starts. Honestly that's what happened this morning! The book was owned by my father, who gave it to my sister, who used while at the UP Law School. I don't know how it came to my house, or why this happened!

HILLBLOGGER said...

Dean,

I wouldn't say it's a gift from heaven but why not?

More like your Dad telling you to use the book! That it's definitely a "go, go tool" for you to get going. Use the book to bash the heads of people in the SC trying to prostitute the Law.

Told you, time to re-calbrate. Time to do a Marc Antoine... (just don't fall for a Gloria Cleopatra).

Atty-at-Work said...

Dean, while I believe that man's destiny largely lies in the totality of our decisions, I still believe that things/events - which forms part of our decisions - happen for a reason (even Gloria is there for a reason, although I keep on thinking about the conversation between Al Pacino and Keannu in the end-part of the "Devil's Advocate", about how God is a sadist). I will not even proceed to state if there's a Divine Being beind these things/events, for this will be a thorny issue.

I admire this site (even if it is "seditious" hehehe kidding) because it maintains a robust and lively discussion of, in your words, the eternal principles (although I believe that the Jologs also has this concept). I assume this is the purpose of this site...and I believe that things happen, whether we call it coincidence or fate - to achieve that purpose.

On the other hand, what happened confirms my suspicion that great ideas emerge while sitting on the great bathroom "throne". =)

Rizalist said...

Fred--Some lawyers I had lunch with characterized Javellana as "the doctrine of acquiescence."

But how would we describe say Estrada vs. Arroyo (March 2001)

Or even Javellana-II (July, 2006)?!

Lord Dracula said...

What if the Arroyo Initiative only asks for amending the article on Legislature, making it a unicameral one (as asked by MLQ3)? Would RA6735 suffice?

Tom said...

To shameless operatives, a constitution is nothing but an inconvenience. They will try and usually get what they want, because the natives couldn't care less.

Tom said...

If a company of distinguished and highly educated and experienced jurists cannot come up with a decision on a single matter of constitutional question, i.e., CPR, within 6 months, how can a whole nation of suspect literacy possibly understand, let alone intelligently debate and pass wholesale revisions of the constitution in less time? If people think it can be done, they are probably all expecting to receive a check from Microsoft/AOL for the chain email they forwarded to their contacts. I just hope they have not borrowed and spent in anticipation of receiving that check.

The Bystander said...

Good day to you Dean!

Dean, the following questions sound off tangent to your current post but allow me to ask them just the same:

1. What if the "Davide" Supreme Court did not "legitimize" Edsa 2? What do you think could have happened?

2. In the same vein, what do you think could have happened if the 1986 Supreme Court did not legitimize the military mutiny of Ramos, Enrile, Honasan et al (which was a component of the "people power" then)? What do you think could have happened?

3. What if the military "mutiny" of Lim, Querubin, et al succeeded in ousting the corrupt Arroyo regime, how will you characterize their actions? Are these restive soldiers not following their constitutional mandate as protectors of the people?

4. The Constitution says that sovereignty resides in the people and all government authority emanates from them. Doesn't it give the implied recognition that the people (soldiers included) have the revolutionary right of changing their government when the circumstances so warrant?

Rizalist said...

Bystandder--You are right of course that there are many coulda, shoulda woulda's in history. Which ones are which?

I guess we must go by DURABILITY. Which of these events you have listed INSPIRE the future, outlasts the current events and popular myths, which of them have ETERNAL value.

That is one metric we might employ.

Thanks for a "hard" question that deserves further attention.

Rizalist said...

(1) If the Supreme Court had not honored the request of the VP to be sworn in, I think that the demonstrations would've gone on for a few days then died down. Just like in 2005 and 2006. The Impeachment trial would probably have resumed, and Erap would probably have been acquitted, but we shall never know. The failure of the impeachment trial is what I consider a loss to democracy in Edsa 2. Assuming he was acquitted, by 2006, people would've had enough of his populist bs and GMA would've won in a landslide, honestly. Who knows, we might be GMA supporters now, instead of destabilizers and coup plotters.

(2) In 1987 Edsa 1, we had a true revolution, one that was declared and had a new Constitution. There was no legitimization of the Military Mutiny of Ramos and Enrile, because it was revolutionary regime change, like in 1896. Edsa 2 though is claimed to have been "Constitutional throughout" because the Supreme Court could not -- not ever -- admit they had acted politically.

(3) It is an insult to us, modern Filipinos, to think that we would EVER have submitted to a JUNTA run by who? Danilo Lim? who the hell is he? Querubin? C'mon. That story was a fairy tale. But if they had tried, they should've been shot, like the traitors they would've been. But not if they had resigned their military commissions, and without their arms and uniforms marched out to join Cory. That I would consider principled.

(4) Revolution is always an option. But constant revolution means the preceding one was wrong to begin with. I think you want a repeat of Edsa 2 to fall upon Gloria Macapagal Arroyo. I might not mind that either, except for;:: THREE WRONGS DON'T MAKE A RIGHT!

HILLBLOGGER said...

I agree with DJB.

Democracy doesn't work under a military junta no matter how many civilians they use to run a nation. It will be just that an extension of a military run operations.

The military have their role in nation building but should stick to that role.

I am an ardent "militarist" but believe that democracy is better served with democrats at the helm of government because by nature and by training, the military are not quite the strongest proponents of democratic rule.

When the military steps into the political fray, it means one thing: democracy is under threat.

HILLBLOGGER said...

Dean,

I hasten to add that when I mean "democracy is under threat", it doesn't necessarily mean that the threat could come solely from the military component of the Republic. The threat to democracy could come too from the civilian component, eg, Gloria, bunch of cilian politicians led by JdV, etc. just as what is happening today.

Whatever the course, when the military enters the fray, they can threaten to bring down not only the government but the whole Republic and the last foundation of democracy.

Military junta? Very, very poor alternative. (More so because I don't trust Gloria's bunch of generals!)

As to Lim, I don't believe he should resign unless, Senga and the bunch of generals today resign too. We have no proof that he committed mutiny.

Querubin is another matter. He should be discharged, dispatched to civilian life. He committed open mutiny and there should be no excuse. He deserves to be shot but that again is contentious because you can't shoot him unless you shoot the mutinous generals of 2001. Therein lies the rub!

You are back to square 1.

The Bystander said...

Hi DJB, HB!

Dean, this is in reply to your last thread.

1. If my memory serves me right, GMA's request to be sworn in came after the AFP heirarchy withdrew its support for Erap. This was also the time when most of Erap's Cabinet Secretaries had resigned which meant that Erap's government was about to collapse. If at all, the SC's "intervention" (eg. administered the oath; ruling in Estrada vs. Arroyo) merely served to "legitimize" Edsa 2. But I do agree that the "constructive" resignation principle used by the SC in Estrada vs. Arroyo was not convincing enough to put the legitimacy issue to rest.

2. The only "mutiny" that I know of is Art. 122 of the Revised Penal Code which is "Piracy and mutiny in the high seas". The military "mutiny" of Reyes and company cannot likewise fall under "rebellion" and/or "coup d' etat" because what happened in Edsa 2 was a mere "withdrawal of support" by all the major service commanders of the AFP. Rebellion is committed by rising publicly and taking arms against the Government...etc. while coup d' etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines... etc. So, Congress must enact a law punishing "withdrawal of support" in order to discourage such form of military adventurism in the future.

Unfortunately, a rebellion or coup d' etat (or even a withdrawal of support) for that matter is punishable only when it does not succeed. Since both Edsas succeeded in ousting incumbent Presidents, then there would be no crime to speak of.

3. What happened in Edsa 1 was extra-constitutional. In Edsa 2, it was intra-constitutional.

4. I for one will not subscribe to a military junta of some sort. I am not advocating for it and I will never advocate for it. In fairness to Lim and Querubin, I don't think they were advocating for that, unless of course you buy Esperon's fictional story of a rightist-leftist conspiracy.

5. The inherent right of revolution should be the last option, when all avenues of transparency and accountability have been exhausted or have failed to send the guilty to the guillotine.

This is the inherent relationship between the people and the state. As I said in the previous thread, sovereignty resides in the people and all government authority emanates from them. Besides, the realm of politics is not a fixed, rigid concept. It is constantly evolving, trying to find the best solution for a country dominated by traditional and transactional politics.

The Bystander said...

Maybe the AFP, in their Articles of War, can prosecute Lim and Querubin for attempting to break the "corrupted" chain of command. Let us wait and see if these Hello Garci generals have enough balls to punish their mistahs.

For one, they have lost the moral ascendancy to enforce strict adherence to the chain of command.

Rizalist said...

Ricelander--I guess it's like this. What we are looking for are certain principles that are applicable to all the past situations and which we can defend in all foreseeable ones in the future.

Take the matter of Military Mutiny. There is no doubt that what Reyes did was Mutiny in the technical and legal sense because that is in fact what he himself called their action on `19Jan2001.

What I've been saying is that because most of us LIKED the result (Erap was ousted) we ACQUIESCED to the essentially illegal MEANS by which that END was achieved.

But now that the shoe is on the other foot, some of us would like to employ those same means to achieve the same end -- but this time with Gloria.

I aver that a sizeable percentage, maybe half of those that agreed to an illegitimate ouster of Erap, won't do it to GMA.

I don't belong to this group because even though I want GMA out, I want it done in a way that I would be willing to employ again, or have other people employ again, the next time we have a President that needs to have their term cut short.

That route is impeachement, which we must remember, we failed to finish in Erap's case.

Which brings up another point. What do you folks think about the six year term with no re-election?

I think we should go back to 4 yrs with re-election.

HILLBLOGGER said...

Bystander,

If I remember correctly, Querubin had openly declared that he was marching to Edsa and was calling out to the civilian component to come and protect him and his troops (What an irony ! He who should do the protecting of the civilians are calling on them - really quite gobsmacking bunch of military you got there!)

That act by Querubin, under the articles of War is tantamount to mutiny. It's clear cut - never mind that he didn't succeed and never mind that he went back to barracks with his troops. The fact that they went into some kind of "voting" to go back to barracks or not is irrelevant and the fact that he APOLOGIZED, if ever he did does not excempt him from being tried by a military tribunal.

I am amazed that it's taking ages for the AFP to convene a court martial. It is very unusual indeed. When Senga declares that they are still "investigating", I just can't believe it. The military works in a different setting - this is not like a civilian organization. A court martial should, as a matter of fact, could be the right "investigation venue"!

This is why I tagged Senga amateurish. Either he's got the goods on Lim and Querubin or he hasn't.

What if it had been wartime? He would've lost the war several times over at the rate he's doing things.

In WWI, the Brits executed several British soldiers for "cowardice" for refusing to go and fight. The court martial took 1 day and that was it.

The Lim and Querubin cases are clear cut. Bottom line is Senga's real problem: military jurisprudence, eg., Angie Reyes, Wong, Santiago, etc mutiny.

He's biding his time and using propaganda to convince the people AND THE MILITARY that Lim and Querubin plotted with the CPP-NPA elements.

Frankly, I will never believe that Lim and Querubin have become Communist lovers. That they might want to mutiny is alright but to have fallen deeply in cahoots with the commies to topple Gloria? No way, Jose. Doesn't and won't wash. So Senga needs time, lots of time, money and lots of money to sell his angle to the public. In so doing, the military jurisprudence related to the 2001 mutiny will be forgotten.

I know Senga and thought he was a good officer. But he's proved that he ain't after all.

Bahhhh! Disgusting...

The Bystander said...

Hi HB!

The civilian courts cannot try the military "mutiny" of Angie Reyes and company because there is simply no law punishing the mere "withdrawal of support".

As to Querubin, yes it was clear that he attempted to break the chain of command (or broke the chain of command). The problem though is one of moral ascendancy. How could these Hello Garci generals enforce strict adherence to the chain of command when they were the first to violate not only the chain of command but also the Constitution?

This is where their moral dilemma lies.

Until now, the Mayuga report on the Hello Garci generals remains undisclosed.

By the way HB, are you also ADB? Just asking..

HILLBLOGGER said...

Hi Bystander,

Yes, I'm ADB...

By the way, I realize the legal dilemma for civilian courts. However, while I agree that the 2001 military "withdrawal of support" (what stupid verbosity) cannot be deemed a military coup d'état, the act was military mutiny even by civilian standards.

The general who is guilty of attempting a coup d'état (with element of violence) is General Espinoza. Good prosecutors could actually indict him and Gloria and HUSBAND for a bloodless coup d'état.

THE GIST IS VERY, VERY SIMPLE: A coup d'état DOESN'T HAVE TO BE all military. You can look it up Bystander.

The mistake of N Olivares, J Macasaet, E Tordesillas, L Banayo and H T Laurel was they charged Angie et al in 2002 with COUP D'ETAT (I tried to persuade Laurel to change the charge sheet to MUTINY and I explained to him that their charge wouldn't hold but he said, it was too late to withdraw, etc.).

What they could have done was gone back and file criminal charges against GEN ESPINOZA, HIS SECOND IN COMMAND, VP GLORIA MACAPAGAL, and hubby as accessory to the commission of a COUP D'ÉTAT! It was a coup d'état albeit a bloodless one.

Will people have the gall to get back there and file the charges?

LCsiao said...

Just a minute correction, HB - Ellen Tordesillas wasn't part of the Fearless Five. It was Ducky Paredes.

HILLBLOGGER said...

Ooops. You're right LCSIAO...Thanks.

The Bystander said...

Hi again HB,

1. "...the act was military mutiny even by civilian standards."

--I get your point, HB. Unfortunately, it is not our civilian standards that determine whether a particular act is a crime or not. It is the LAW that determines. Civilian law at present does not punish the mere withdrawal of support.

2. "...The general who is guilty of attempting a coup d'état (with element of violence) is General Espinoza."

--This is a question of fact, HB. However, I am not in the position to discuss the possible culpability of Gen. Espinoza. We cannot solely rely on newspaper accounts. There must be PERSONAL KNOWLEDGE, otherwise, our testimony will not be admitted and regarded as mere HEARSAY. As I stressed in my previous comment, a rebellion or coup d' etat is punishable only when it does not succeed. Since both Edsas succeeded in ousting incumbent Presidents, then there would be no crime to speak of.

3. "THE GIST IS VERY, VERY SIMPLE: A coup d'état DOESN'T HAVE TO BE all military."

--This is the particular provision, HB:

Article 134-A. Coup d'etat; How committed. — The crime of coup d'etat is:

a. a swift attack accompanied by violence, intimidation, threat, strategy or stealth;

b. directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications network, public utilities or other facilities needed for the exercise and continued possession of power;

c. singly or simultaneously carried out anywhere in the Philippines by any person or persons belonging to the military or police or holding any public office of employment with or without civilian support or participation;

d. for the purpose of seizing or diminishing state power.

--First, all these elements must be present in order for the crime to constitute coup d' etat and each of these elements must be PROVED BEYOND REASONABLE DOUBT.

Second, before a CIVILIAN can be charged for committing the crime of coup d'etat, you must first prove that there was conspiracy between the civilian and military components. Otherwise, the charge against the civilian will be dismissed. The law was crafted primarily for the military. That is why you will notice that the provision says "with or without" civilian support.

4. "I tried to persuade Laurel to change the charge sheet to MUTINY and I explained to him that their charge wouldn't hold but he said, it was too late to withdraw, etc."

--Under civilian law, there is no such thing as "mutiny", HB. The only crime that mentions the word mutiny is PIRACY AND MUTINY IN THE HIGH SEAS -- punished in Article 122 of the Revised Penal Code.

Under the military justice system, I think there is an express mention of the term "mutiny" but again that is another story. The Articles of War will now govern, not the Revised Penal Code.

5. "What they could have done was gone back and file criminal charges against GEN ESPINOZA, HIS SECOND IN COMMAND, VP GLORIA MACAPAGAL, and hubby as accessory to the commission of a COUP D'ÉTAT! It was a coup d'état albeit a bloodless one."

--Even if we are to assume that Reyes, Espinoza, et al committed coup d' etat circa 2001, there is no more crime to speak of when a coup succeeds. And since Edsa 2 succeeded in ousting Erap, then the coup became legal, so to speak. The present government cannot prosecute itself for the coup d' etat it committed against the previous government.

The fact that one is charged with coup d' etat or rebellion IMPLIES that he did not succeed. Example: the coup of the 80s staged by Honasan et al, although they were consequently granted amnesty by the government.

As to GMA, she cannot be prosecuted during the period of her incumbency. She is IMMUNE from suit, except by impeachment.

The Bystander said...

HB,

JUST A CORRECTION:

I said:

"Second, before a CIVILIAN can be charged for committing the crime of coup d'etat, you must first prove that there was conspiracy between the civilian and military components..."

It should have been:

"Second, it is true that a coup d' etat doesn't have to be military, BUT before a CIVILIAN can be CONVICTED for committing the crime of coup d'etat, you must first prove that there was conspiracy between the civilian and military components..."

Abe N. Margallo said...

DJB,

These following commentaries of yours are very insightful and instructive:

“Javellana is actually hard and painful to read, as every paragraph reads like the morning news, as indeed we seem to be REPEATING the history we've just forgotten -- at an even lower cycle in the helix spiralling down to the ranks of the unfree countries.

“Reading Javellana today also sheds old light on the Executive's present actions and suggests a sinister new element to the present-day Palace moves: the Executive is being coached by a legal mind that has complete knowledge of these precedents and is anticipating the legal and judicial road ahead, by shaping the Executive's orders, decrees and actions toward a goal of mutual survival.”

You are an analyzer of great historical events par excellence, Dean. But now, the challenge is to find and expose this Rasputin whose uncanny, if satanic, skills might have grown to near faultlessness with the passage of time: keep in mind this “enemy of the state” can produce a Marcos out of a Gloria and the daughter still keeping the benignity of her illustrious father.

About Javellana: The decision should be a prescribed high school or college reading, perhaps like Noli and Fili or the Philippine Constitution. Chief Justice Roberto Concepcion, whom I revere as a true champion of the Rule of Law, has preserved the Marcos holocaust in SCRA for every Filipino to learn all-too-important lessons from.

I suppose in one essay I wrote as early as March 2001, and and in a more recent blog , I have considered quite more lengthily Ricelander's and Bystander's theses above. Let me add the following:

By its very nature, a successful revolution or rebellion is ALWAYS legal for the simple reason that one of its goals is the establishment of a new legal order by illegitimizing the existing one. Hence, a rebellion is punishable only in the course of carrying it out or when it fails. When the rebellion succeeds, it revokes the legal status of the ousted regime even as it legalizes itself.

Moreover, certain acts of the rebelling population in furtherance of the objectives of the rebellion, such as the killing or maiming of the defenders of the regime sought to be removed, or the extensive destruction of properties, do not rise to the level of, say, murder or brigandage. These different criminal acts if committed during the rebellion are considered merely constitutive of one and continuing offense - the rebellion or insurrection.

The Philippine penal system can be said to treat rebellion as acts of conscience (there being a duty to act) or political dissent rather than of anti-social depravity. For instance, one found guilty of armed robbery in an inhabited house may be punished under the Revised Penal Code of the Philippines more severely than a rebel who may have committed the same acts, in addition to killing his enemies and causing considerable property destruction. This is because rebellions are political acts and not definitionally crimes.

HILLBLOGGER said...

Hi Bystander,

Thank you for the clarifications; appreciate them greatly.

I am not a lawyer at all - am just a "little" familiar with the military organization and culture, the Articles of War (UK, France, the US), and the military law in general, so your clarifications come in real handy.

Frankly, I wasn't too sure of the Philippine civilian law on mutiny (true that even over here, cilian law speaks of mutiny as a crime for "mutiny commiteed on the high seas" by the merchant navy and not the military navy). However, with regard to Philippine military mutiny, I assumed that military crimes in general are based on the same military tenets everywhere; what I've been writing about were actually based on the European and the American military law.

Also, on the conspiracy I believe that in an unbiased judiciary setting (not the current Gloria's judiciary setting), it is easy to prove that there was a conspiracy between the civilian and the military components to commit coup d"état in 2001.

To do this, there is no need to attack Angie Reyes and the major service commanders with a charge of conspiring to commit a coup d'état to make the conspiracy stick. Gloria herself, and her husband have ADMITTED PUBLICLY to plotting personally with MajGen Espinoza for the armed, military component of their coup d'état.

If only our prosecutors were BRAVE, COURAGEOUS and UPRIGHT, they could use Angie Reyes and the major service commanders (Army, Navy, Air Force) who "mutinied" to testify against the military-civilian components that committed the coup d'état.

To me and based on their own public declarations and pronouncements, the following people CONSPIRED to commit coup d'état in January 2001:

- Major General Espinoza, Philippine Marines Commandant (not a major service commander)
- VP Gloria Arroyo
- Mike Arroyo
- and a couple of high level civilian personalities (e.g., ex-SND Rene de Villa and Vicky Garchitorena, etc.)

Limit the coup d'état charge against these people and the charge will stick. Obviously, today, it is difficult to charge Gloria because of her presidential immunity BS.

You will find that this armed, violent component of the coup d'état by Espinoza, matter of fact, may be the ONLY legal defence of Reyes and his 3 major service commanders against a potential mutiny charge or what they stupidly call their "withdrawal of support".

Reyes and Benjie Defensor in 2004 in separate conferences had admitted that they had no other choice but to "withdraw support" (which is absolute bullshit in the first place because we know Angie had been plotting with Mike Arroyo) to avoid bloodshed because of the Espinoza planned armed attack on Malacanang!

What paradox, eh!

Rizalist said...

Abe,
Thanks for the links to those two essays. I didn't realize you were on the mountain top of comprehension on this about a year before I got there--from where one can see what really happened. Regarding Rasputin--it may be a small group of Rasputins, 3 or 4 maybe 5, am sure you can imagine who I mean.

The Bystander said...

Hi HB!

1. If I may add something to Abe's comment above, other acts (eg. murder, physical injuries. etc.) committed in furtherance of the rebellion are ABSORBED in the rebellion itself.

2. I agree that rebellion (or revolution) is an inherent political right of a citizen, especially when the rebellion is against a corrupt, repressive Establishment. That is why a charge of rebellion almost always has political undertones and considerations -- the rebel is called a political prisoner to distinguish him from other prisoners charged of ordinary crimes.

No less than Abraham Lincoln said, "This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it."

3. Yes, under Art. 136 of the Revised Penal Code (as amended by RA 6968), one can be prosecuted for CONSPIRACY AND PROPOSAL TO COMMIT COUP D'ETAT. Here is the pertinent article:

"Art. 136. Conspiracy and proposal to commit COUP D'ÉTAT, rebellion or insurrection. — The conspiracy and proposal to commit coup D'ÉTAT shall be punished by prision mayor in its minimum period and a fine which shall not exceed eight thousand pesos (P8,000.00). XXXXXXXXXX"

But then again, even the CONSPIRACY and PROPOSAL TO COMMIT COUP D' ETAT becomes "legal" when the coup succeeds. The same principle applies. Moreover, it has a lower penalty -- prision mayor minimum -- which ranges from 6 yrs. and 1 day to 8 yrs. imprisonment.

That is why we cannot successfully prosecute the "mutineers" and their civilian conspirators under GMA's incumbency. The government cannot prosecute itself for the "crime" it committed against the previous government. That would result in legal absurdity.

HILLBLOGGER said...

Hi Bystander,

Re: "But then again, even the CONSPIRACY and PROPOSAL TO COMMIT COUP D' ETAT becomes "legal" when the coup succeeds."

Are you saying that there's no way Gloria will ever be prosecuted for her crimes against the nation?

HILLBLOGGER said...

Dean,

In his Inquirer column today, ret LtGeneral Ramon Farolan said of the recent PMA graduation rites "At one time, I suggested that, perhaps, the academy should take the risk of inviting someone else to its commencement exercises."

He continued by asking "But who is the brave soul in the military institution who would even dare hint that someone else other than the President should be considered for this event? Unfortunately, in our culture, it probably would be looked upon as a sign of disloyalty bordering on treason."

With his question, General Farolan, one of the more distinguished career military officers that the PMA produced has indicted the current crop of generals for cowardice.

It is all the more telling sign of the times because we know how Gloria has prostituted and corrupted the AFP star rank by bestowing bribes of all types to the officers who would do things for her as she commands.

Never in my years of working with and observing the AFP have I witnessed the military officer's uniform sullied so disgracefully.

The new PMA batch is going to start their career in highly muddled AFP military configuration with no moral backbone to speak of. Gloria's continuing presence at the "helm" is bound to destroy the tenets that set the military officers' corps distinct: honor, courage and valor.

The Bystander said...

Hi HB!

"Are you saying that there's no way Gloria will ever be prosecuted for her crimes against the nation?"

Definitely not, HB. When GMA ceases to be President, she will surely be busy attending to the numerous criminal cases that will be filed against her.

What I am saying is on the coup aspect. There would be no legal leg to stand on because the SC has already ruled on the "legality" of the 2001 Arroyo regime.

HILLBLOGGER said...

Geez, Bystander!

In effect you are saying that while she may be prosecuted for a few minor crimes, the one and major crime for which she should be rightly prosecuted - the coup d'état of 2001 - will not get anywhere because the Supreme Court is virtually a Gloria prostitute and will not confirm a potential anti-Gloria ruling or a condemnation of Gloria by a lower court ...

In this case, there is no point at all in prosecuting her for her crimes, big and small!

The only solution to make her "pay" for her crime is either by a successful impeachment or by a successful coup d'état against her between today and 2010.

Given the political configuration in today's Houses, Gloria is bound to be successful in blocking another impeachment try against her and will be able to do so again and again particularly if JdV manages to railroad a shift to unicameral system in July.

In other words, given those elements, we have no recourse but to actively pursue her ouster by forcing her to step down. Any means deployed towards this undertaking should be seriously considered.

The Bystander said...

HB,

I am speaking here from the legal standpoint, at least that is how I foresee the legal ramifications would be.

When she gets ousted or forced to resign, she will surely be prosecuted, among others, for graft and corruption, possible human rights violations and may be plunder, depending on the evidence at hand. Those are definitely NOT minor crimes.

Again from a legal standpoint, there was no coup d' etat. The SC upheld the legality of the 2001 Arroyo regime by introducing the concept of "constructive" resignation, in this wise: "XXX Consequently, whether or not petitioner (Erap) resigned has to be determined from his acts and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.XXX (Estrada vs. Arroyo)"


In other words, the legality of the 2001 Arroyo regime was upheld by the SC because Erap resigned, not because Arroyo was installed through a successful coup d' etat. Well, we can always dispute that ruling but the fact of the matter is that said decision of the SC has become final and executory.

Based on that assumption then, how will you prosecute Arroyo when there was no coup d' etat (at least from a legal standpoint) in the first place?

Besides, even if we are to assume that what happened in 2001 was a coup d' etat which installed the Arroyo goernment, its legitimacy, to borrow the words of the SC, "is already beyond judicial scrutiny for that government automatically orbits out of the constitutional loop". A successful revolution or even a succesful coup d' etat becomes a political, not a legal question and therefore beyond the ambit of the Supreme Court to decide.

HILLBLOGGER said...

Bystander,

In spite of my tiny sailor brain, I can assure you that I got the gist of what you were saying the first time around: that the SC has legalized Gloria's coup d'état. I'm sorry if I have not been clearer as to my stand earlier.

Although the SC ruling is legally binding, let me say that from a military and political standpoint Gloria conspired, plotted, led and committed a coup d'état (not merely an attempted one but a staged and full blown coup d'état by any name and in any nation where it could have happened) and really, the SC may have legalized Gloria's act of 2001, it doesn't delineate it from the fact that she conspired, plotted and led a coup d'état to topple a duly and constitutionally elected president.

Having said that, I did not really mean to downgrade the other crimes committed by Gloria to the level of petty crimes or misdemeanors. Moreover, I had unconditionally accepted your legal explanations when I said in my earlier statement, "The only solution to make her "pay" for her crime is either by a successful impeachment or by a successful coup d'état against her between today and 2010."

Legally or not, I do not believe that it is worth the time, money, effort, the political and social traumas that potential protracted legal battles between the state and a "civilianized" Gloria in 2010 would entail and would cause the nation by prosecuting her while the SC is peopled by Gloria appointees even if for the sake of argument we agree on the premise that she will step down in 2010.

I say this because I am aware that those members of the (flawed) SC will hold on to their positions for life. Given the fact too is that Tony Carpio for instance, is only in his mid-50s and others are bound to be replaced by Gloria people, presumably who are young or not so old, when the current old crop of SC justices retire between today and 2010, so really, there is no point in counting on their being judicious and fair where Gloria is concerned.

In other words, I believe the current SC is inexorably damaged for the next 10 to 20 years and that any hope of obtaining anything judicious and fair relating to Gloria's crimes big and small are a almost a shot in the dark. That's how low my opinion has become of the Philippine Supreme Court. I no longer have faith in this institution or that it is not a sullied institution where Gloria is concerned.

To me, it would minimize the enormous and extraordinary damage which Gloria has wrought on the nation's Constitutional agencies (including the SC) and the country's political set up by simply forcing her now, using all means, to step down and to place her in behind bars just like she's done to Estrada and let her sort out her future from there with the help of her battery of lawyers if she wants to do any sorting of her future at all.

Also, given the fact that there is realistically very little possibility of her getting impeached, tried and prosecuted for the crimes she's committed (other than her 2001 coup d'état which according to you is no longer a crime by your SC ruling) in today's political set up, I see no other avenue for change in the Philippines unless she's literally forced to stand down, retired constructively (using SC's own ruling on the Estrada presidency) and humiliated in turn in the process.

The Philippines cannot afford to continue on its beaten and dangerous path today and not expect moral corruption to sift in while she stays on. The longer the wait, the worse the damage on the nation's psyche will be. That damage can be mitigated only when it is brought to a speedy halt lest the nation stands to suffer moral attrition for decades to come.

To me, it is no longer a choice of what is legal or not legal, it is a question of what is moral and what is not because the sole remaining legal guarantor of what is legally and morally correct - the Supreme Court can not be counted upon any longer to enforce the spirit of the law which by extension, is the rule of law.

The Bystander said...

HB,

Very well said, HB and I agree with you on that note!

But as an officer of the court (as a lawyer), I am duty-bound to respect and uphold the decisions of the SC even if I do not necessarily agree with them. The "errors" of the Supreme Court become jurisprudence and jurisprudence is part of the law of the land! This is where the dilemma lies, because what is legal may not be necessarily be moral and vice-versa.

What you are prescribing is a revolution, a total regime change which is always a welcome idea to me given the kind of government we have. But it still remains to be seen whether we will ever come to that. If that happens, then and only then can we prosecute Arroyo, et. al. for the alleged "coup d' etat" they committed in 2001.

The Bystander said...

Just a correction to my previous comment. I said:

"This is where the dilemma lies, because what is legal may not be necessarily be moral and vice-versa."

It should have been:

This is where the dilemma lies, because what is legal may not be necessarily moral and vice-versa.

HILLBLOGGER said...

Bystander,

I am a student of the French Revolution and as one, I can see that for the nation to apsire for change as well as moral and political cohesion in the future, there must be a total "overhaul".

If that happens - the regime change - will you be part of the prosecution team that will try to bring Gloria et al to justice?

The Bystander said...

HB,

Haha! There are many better, brilliant lawyers out there who can do the job with ease. I will probably be the last option, when all the others have refused.

But if given the chance, why not?

BTW, other lawyers might have a different take on the matter (e.g. whether there was coup d' etat in 2001; or whether Arroyo et al can be prosecuted for such), so I stand corrected with whatever legal opinion I made here.

HILLBLOGGER said...

Bystander, Dean,

Disgressing from our topic (but not quite), I have a story concerning "the rule of law" involving young, would be school parliamentarians.

The British school where my children go decided recently to allow (and for the first time) the formation of a students' parliament involving Year 11 students aged 15 and older (British school students graduate in Year 13). For the purpose, the school instructed Year 11 to organize 6 student "political parties" for a run off elections (which will take place next week). Each party is instructed to elect their party leader.

The two parties with the highest votes in the first run off will contend against each other in a final election in May to become the "party in power" in the Sept 2006 - July 2007 students' parliament. The "party" that garners the highest votes will be the sort of "student council", liasing with the school's board of management and staff regarding student affairs, organizing and conducting student activities, etc. while the "losing" party will be the shadow student government tasked to perform the check and balance. The leader of the party with the highest votes in the final election is expected to be elected "Prime Minister" of the students' parliament.

Accordingly, my daughter organized her own "political party" with the help of her classmates and schoolmates; they set up "party" rules as well as a "political campaign" platform. My daughter was one of the two nominees for her party's leadership and through a secret balloting, proceeded to win the intra-party election leadership; she is now expected to pit her campaign talents against the other 5 party leaders for a major party slot in the future students' parliament.

Everything seems to be going 'normally' but last Friday, my daughter complained to me that party members had discovered that her major rival for party leadership broke a major party rule; that she didn't know how to handle the rule breaker and fears that if she antagonized her, the latter might go against her and against the party.

What a dilemma at such an early age and in such an early stage of a young person's entry into the political arena!

The "major party rule" in question is really quite absurd. (I didn't learn of the rule until she spoke to me about it, otherwise I would have suggested that they do it otherwise.) They had all agreed in writing that voting for the party's leader would be done by secret ballot but that on their honor, the candidates should not vote for themselves. Unfortunately, it was soon revealed or discovered (I suppose through the usual whisperings in the school corridors) that the other nominee had voted for herself (the two candidates were girls) and not for her rival (my daughter). Thereupon, the alleged rule breaker was confronted by party members. The poor girl admitted to having voted for herself while my daughter, in keeping with "party rules", voted for her rival. Because my daughter was elected by a majority of votes to be the party leader, she is now being asked to decide on the case.

When my daughter brought up the case to me, I said that young as they are, they must understand that when one breaks a major party rule or an established rule in general, one must accept the "punishment" or the consequence of the said act. However, because they had not set up some kind of rule pertaining to rulebreakers, they really did not have a "valid reference" for a sanction, therefore the party must act on the basis of what they believe is moral and just.

After the short discussion, my daughter said she will recommend the exclusion of the rule breaker from the party. (Amazing really but I find that it is not difficult for young people to determine what is moral and what is not unlike us adults who agonize about it.)

However, I suggested that instead of unilaterally deciding on the exclusion, she should convene a party meeting tomorrow Monday to discuss the matter further with her party mates and perhaps, should consider pursuing the issue to the extent only of issuing a collective party reprimand in writing and exact an apology from the rule breaker for her act, precisely because they didn't have any written rules for that sort of misbehaviour.

I don't know what this bunch of young people will do if the rule breaker refuses to apologize but I had suggested to my daughter that whatever they do will serve as a cornerstone of their organization's political life; that their decision must be honorable and fair for everyone concerned (including the rule breaker) and moreover, must be able to stand the test of time.

I find it perfectly adequate or normal that we should instill in our children, the citizens of tomorrow a sense of what is moral and what is not, what is just and not, and in conjuction with that, we must exact the same of our peers no matter their office or position in life.

Bystander, what would you yourself have recommended for this young people to do?

HILLBLOGGER said...

Ooops, I meant, for THESE YOUNG PARTY PEOPLE to do?

bernardo F. Ronquillo said...

DJB, as far as the Davide-Panganiban Supreme Court is concerned, it is not a question of what the law is but what they are capable of doing to the law. And what they have done to it, since January 2001 up to now, had smeared the Philippine SUPREME COURT forever.

As I have said in a previous post, I have already lost faith in this Supreme Court. I believe it it is not capable of following the law but rather of "using" the law. In 2001 Davide and Panganiban talked about "restoring zion" but now what we should do is to "restore the Supreme Court."

Rizalist said...

this won't be easy bfr...they're altogether in it and they are hanging tough1

LCsiao said...

Guys, with your indulgence, here's some wishful thinking from an unscholarly bloke like me:

In answer to HB's question about whether Gloria will ever be held to account for her Jan 2001 murder of the Constitution (I placed a date coz there are many), I think this will only come about once a totally new system is put in place via the revolutionary route.

Frankly, I see no hope for justice in the current dispensation as Gloria has effectively prostituted virtually all democratic institutions to cater to her whims and fancies.

However, as I still believe in a loving and just God, I think nobody--even someone as power-mad as Gloria--can stay in her perch forever. So when that day comes, boy, are we gonna have a field day with co-conspirators and traitors like Davide, Panganiban et al, being skinned alive right before our very eyes!

Even assuming that the revolutionary gov't adopts the 1987 Constitution en toto, the entire Davide Court could still be hauled to court because no one--not even their lousy bunch of an SC--is above the Law.

So, in short, I believe that at the end of the day, even patently unconstitutional edicts can still be undone. All it takes is having the "right" (okay, that's subjective--kaya nga wishful thinking eh) people to be charged with properly interpreting and enforcing the laws of the land.

Rizalist said...

LCSIAO,
I really appreciate the point you made. We can--we must--afford patience. She can't last forever, and frankly, I don't think she'll actually make the distance.

Now when people ask who the alternative is to her, even for the most diehard stay-til-2010 supporter, surely those possible replacement are already alive and in pubic service right now.

I wonder if we couldn't get some calburo and get them to ripen just a lil faster...before our patience and forebearance run out!