Garci's Second Petition and the Second Impeachment

UPDATE: The Supreme Court has just published its decision on Proclamation 1017. I haven't gotten much past the title: Prof. Randolf David versus President Gloria Macapagal Arroyo.

How time does fly! May, June, July...it's almost time for that expected second impeachment attempt on President Gloria Macapagal Arroyo based on the Five Congress Committee's investigation of the so-called Garci Tapes -- and subsequent transgressions. But if I'm sitting in the Palace's command and control room, any time now would be just the right time for another unanimous Supreme Court decision...(In this post I am trying to "skate to where the puck will be," as they say in hockey, a sport one can truly appreciate in the summer heat of the Philippine Archipelago...]
Late last year, after five months of guilty flight as a fugitive from Justice, with a warrant for his arrest for contempt of Congress, ex-Comelec Commissioner Virgilio Garcillano emerged from a secret hiding hole that the combined forces of the NBI, the Police, the Army and the entire government never discovered. Garci immediately filed two petitions with the Supreme Court. The first Garci Petition, which was immediately rejected by the Court, asked that the House warrants for his Arrest be set aside, a matter that became moot and academic anyway after the House investigating committees offered to withdraw the warrant in exchange for Garci's testimony in Congress, which turned out, in retrospect, to have been a long continuous, but unstated taking of the Fifth Amendment by Garcillano.

But the Second Garci Petition at the Supreme Court, now seemingly forgotten in the perhaps higher profile cases of CPR, EO464 and Proclamation 1017, contains the following Prayer:

WHEREFORE, premises considered, it is most respectfully prayed that this Honorable Court issue a Resolution:

(a) ordering the immediate issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction restraining and preventing the House of Representatives Committees on Public Information, Public Order and Safety, National Defense and Security, Information Communications Technology, and Suffrage and Electoral Reforms from making use of the sound recording of the illegally obtained wiretapped conversations in their Report for the inquiries conducted relative thereto, or from otherwise making use of said recordings for any purpose; and,

(b) Granting the issuance of a Writ of Prohibition by commanding the Respondent Committees to strike off the record of the proceedings any and all references to the illegally obtained wiretapped recordings, and to desist from further using the sound recordings of the illegally obtained wiretapped conversations in any of its proceedings.

Other reliefs, just and equitable under the premises are likewise prayed for.

SIGNED (22 November 2005) EDDIE U. TAMONDONG (Counsel for Petitioner) and VIRGILIO O. GARCILLANO (Petitioner).

DIVERSIONARY CHACHA I would say that a Supreme Court ruling on the Second Petition of Virgilio Garcillano at this time would have a transcendental effect on that second impeachment attempt. Just like a hidden left hook, it could be the knockout punch that all the chacha brouhaha is meant to disguise and hide from view. I am not convinced that chacha has the full backing of the Palace. I think the whole game now is focussed on this very dangerous possibility of the one-third rule coming into play. But the chacha choo-choo train has a strictly limited run, limited primarily by the unwritten rule obeyed by all the political classes that it takes about a year to get ready for national elections, due in May, 2007 under the 1987 Constitution. I think that the Parliament in the Sky that JDV is getting everyone mad about is a diversionary tactic for what he's really got cooking in the Lower House, and what the Supreme Court may be getting ready to do.

TIMING IS EVERYTHING If there is one thing we ought to learn from the recent Supreme Court Decisions it is this. Timing is everything. I think that the two decisions on EO464 and CPR were timed for May Day, in which they can now be seen to fit like a hand in the glove of the Palace. A pusillanimous Court can be unanimously pusillanimous. WHEN they render a decision is almost as important as WHAT they decide, which can be disputed and debated and ultimately ignored anyway since the Philippine Supreme Court has not exactly built up a reputation good enough to command moral authority. But when it is convenient to wield that authority, it can easily be arranged and the Court's authority used as a cloak for more sinister purposes by the Executive.

UNANYMITY IS AS UNANIMITY DOES Unanimous decisions of the Supreme Court are regarded by spectators much as "slam dunks" are in basketball. As such, who really won in a given decision is an important question to answer. In both of the recent Decisions Senate v. Ermita (on EO 464) and Bayan v. Ermita (on BP 880) a unanimous Supreme Court voted to grant the petitions only in part, and in my opinion, the part granted to the petitioners in both cases was what is colloquially referred to as "the shaft." The truth of this accusation was attested to today by the non-appearance of several Cabinet officials at a Senate hearing in aid of legislation headed by Sen. Juan Ponce Enrile. And of course, the police rejoiced at the ruling on BP 880. But here is how a former Supreme Court Justice Isagani A. Cruz described Senate v. Ermita in his PDI column last Sunday --

Utang na Loob: "For being excessively deferential to Ms Arroyo, the Supreme Court withheld the judicial indignation it should have exhibited, as the conscience of the government, against the serious constitutional affront. Instead of serving as a stern warning against further presidential audacities, the ponencia merely made the timid motion of a slap on the wrist. It was like spanking a pampered child with a felt slipper."

Any punitive effect on the President was nil, even if the prose of Justice Conchita Carpio Morales contains many plausibly and defensibly "indignant" passages. The decision was so finely balanced, so well-reasoned that it succeeded in doing nothing more than perfect EO 464 for a future assertion of executive privilege. If one wants to understand how the rule of construction is applied such that government issuances are read as much as possible as to render them Constitutional, this is the Decision to study. In Senate v. Ermita (EO464) -- anyone who has truly read it carefully several times will admit --the Supreme Court bends over backward like a pretzel to do so.

Yesterday, Fr. Joaquin Bernas -- "the guru of destabilization" as Justice Sec. Raul Gonzalez has dubbed him -- asks of the decision in his PDI column yesterday: Who Really Won?

Bernas: "Thus, the fact that the Court has upheld the existence of executive privilege in jurisprudence does not mean that the Court has upheld the privileged nature of the claims so far made by the government. For instance, the decision did not mean that the information Brig. Gen. Francisco Gudani was prevented from communicating was privileged in nature. What Gudani knows might just be information which the public has every right to know. This can be verified in a closed door hearing of the Court. Hence, again, the claim of government victory in the tribunal's decision on EO 464 is premature, to say the least."

Who really won then? It sounds as if Fr. Bernas really isn't sure either. His answer is: "It remains to be seen!" He seems to accept the general principles laid out by the Court, but is conscious that the decision basically preserves the status quo. Perhaps the new decision is just another brick in the stone wall of Gloriagate. After all, it provides explicit instructions to the Executive about how to do it right the next time -- with no penalty for the recent transgressions!

(1) The power of inquiry of Congress is fundamental to its task of continuously making new laws and perfecting old ones. As a rule, Congress has a right to all information that is of public interest, subject only to its own rules of procedure and the constitutional rights of private citizens and public officials that it may see fit to hail before its committees to testify to things of their personal knowledge and expertise -- in aid of legislation and as part of legislative oversight.

(2) Executive privilege is apparently the right of the executive branch of government, inherent in the principle of the separation of powers, to declare specific EXCEPTIONS to the above rule, in cases involving public safety and security, diplomatic, military and state secrets, and such other bodies of information deemed by the Chief Executive to be so sensitive as to necessitate the suppression of its entering into the public domain or public knowledge. However, even in these cases, the power of inquiry of Congress may not be thwarted, as such information may still be learned by Congress in executive session.

READINGS IN THE US CONGRESSIONAL OVERSIGHT MANUAL

The U.S. Congressional Research Service publishes and continuously updates above document, which is a valuable resource on this topic in the US jurisdiction. Given the similarity of the Philippines system of separation of powers into Executive, Legislative and Judicial branches of government, it is no wonder that similar questions and issues have arisen around the concepts of executive privilege, the power of inquiry of Congress, and the power of judicial review.

President Woodrow Wilson the first American scholar to use the term “oversight” to refer to the review and investigation of the executive branch: "Quite as important as legislation is vigilant oversight of administration. It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. The informing function of Congress should be preferred even to its legislativefunction. "

John Stuart Mill, British utilitarian philosopher: ". . . the proper office of a representative assembly is to watch and control the government; to throw the light of publicity on its acts; to compel a full expositionand justification of all of them which any one considers questionable . . ."

Expanding on its holding in McGrain, the Court declared

, “To be a valid legislative inquiry there need be no predictable end result.”

1912 Anti-Gag Legislation and Whistleblower Protection Laws for
Federal Employees.

a. The 1912 act countered executive orders, issued by Presidents Theodore Roosevelt and William Howard Taft, which prohibited civil service employees from communicating directly with Congress.

b. It also guaranteed that “the right of any persons employed in the civil service . . . to petition Congress, or any Member thereof, or to furnish informaion to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.” 37 Stat. 555 (1912) codified at 5 U.S.C. 7211 (1994).

c. The Whistleblowers Protection Act of 1978, as amended, makes it a prohibited personnel practice for an agency employee to take (or not take) any action against an employee that is in retaliation for disclosure of information that the employee believes relates toviolation of law, rule or regulation or which evidences gross mismanagement, waste, fraud or abuse of authority (5 U.S.C. 2302 (b) (8)). The prohibition is explicitly intended to protect disclosures to Congress: “This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any CRS-7 personnel action against an employee who disclosures information to the Congress.”