Tuesday, May 2, 2006

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.


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.”


manuelbuencamino said...

How can Garci petition the court to prohibit a tape recorded conversation he has not participated in?

Suppose he did admit to one small conversation in those tapes made from many clips, does he not have to admit to being a participant in each and every clip before he can file a petition before the court?

No harm no foul right?
Who claims he/she was fouled?

Rizalist said...

Suppose you come home one day and you find a bunch of reporters in your house asking you to comment on some tape recordings they just heard at the neighborhood pool hall, which some people there are claiming contain your voice and that of a known drug dealer. They accuse you and this drug dealer talking about a massive drug distribution campaign you conducted the year before. People listen to the tape who don't actually know you, but they also claim it must be you because it sounds like you. For all we know it IS you. Or maybe not MB. I wouldn't think so, knowing you from comments on this site. IN that case, I would expect you to do the exact same thing as Garci, even if you don't admit the voice is yours. Remember the anti wiretapping law BY DEFAULT safeguards the reputations of people from the broadcast of even truthful facts about them, if those facts have been put in your own mouth. Its called the right against self-incrimination.

But this doesn't mean I think Garci's prayer ought to be granted by the High Court! It just answers your question about what right does Garci have?

Lord Dracula said...

Another Solomonic decision from the SC: 1017 constitutional, but acts due to GO 5 are not. Solomonic....not! Hopefully it's just a rumor. And a bad one at that.

Rizalist said...

Lord Dracula,
Heard the same ABSCBN broadcast. was gonna post it, but i realized this is a controlled leak...attributed to a manila times source. probably accurate...but why? No post at the Supreme Court website yet. Don't wanna touch it till I see the Decision! There a lot of very expert "news mgmt" going on with these SC decisions...

Lord Dracula said...

Measuring what would be the public reaction? They say the decision is to be released tomorrow. I still hope it's an ugly rumor. If true, I don't find it Solomonic; it would still be for Arroyo.

Rizalist said...

Haha! Remember that in the Biblical Reference, King Solomon offered to cut the baby in half. Hearing which, the real mother said NO, give the baby to the other woman! Upon which, wise King Solomon discovered who the real mother is.

But in this case, as I've put it earlier, King Solomon has indeed cut the baby in half. Meaning to say, as you say, GMA wins because in reality the decisions are trumpeted to say one thing (as they've been doing all afternoon even b4 the decision is officially published) but when you read it and observe the effects in the real world, you realize it's all spin!

This afternoon's news is almost pure spin and is interesting in that respect. When the website carries the decision, we can read it and discover the baby's parts.

The part the people get is the part often called "the shaft".

ricelander said...

Dean, if one day I would come home to those bunch of reporters, I would do these things: 1. I would seek to listen to those tapes with them. Whaddahel did they make me say and how do my voice sound like coming from another?!. 2. If indeed it does sound like me talking, then I would seek to have that recording verified by a reputable agency. What is there to fear: I know it is not me so it should show itself as unauthentic!

If such a fakery so coincidental, so elaborate, so detailed, so true-like and so resembling could be assembled, it could only be the work of an evil genius with the assistance of all the dark forces. Something of that kind ought to terrify every one, and if deceipt could be made untraceable, all the more should we be in terror. It is not just for the sake of justice but also for science and technology. If there indeed such a technology, I would be witness.

But, of course, I know I am innocent so I could say that in brash and proud confidence. As I am not guilty, I am the raging lion who would seek to find the responsible devil to make him pay dearly by tearing his flesh and bones apart!

Certainly, I wouldn't do as you suppose Garci would do!!

Rizalist said...

Ricelander, Your point is well taken, but I think you have the Garci tapes too firmly in mind. You neglect the infinite variety of other possible situations that are ruled by the basic principle involved in the antiwiretapping law: that a person cannot be made to incriminate himself, and also that others may not malign or denigrate his reputation by unproven claims in mere tape recordings.

But let me give you a different situation in which things are even muddier.

Suppose that we have a bunch of recordings, some containing conversations between the President and Garci plotting election cheating. But most are recordings of all the editors publishers and reporters in Manila talking to their bookies, mistresses, lovers, etc...nothing illegal, but very embarrassing and devastating.

Now they start playing the stuff all over the place, and it really is the people they sound like on them.

What now? Can't someone sue to stop the public playing of such tapes?

Whatever we want to happen to GMA, we must be willing to subject ourselves to!

manuelbuencamino said...


This is off-topic but I just saw this video on the uniffors blog. They don't claim it's real. They're wondering. Maybe you can help them out.

This is an AMAZING video on the Sept. 11, 2001 attack on the Pentagon.

manuelbuencamino said...


Back to the topic. Just to be pilosopo about it - What happens to spoofs? Wil Willy Nep and Ate Glow be out of a job?

Also, shouldn't Garci be suing on grounds of defamation or libel or something like that instead of the anti-wiretapping law? The tapes haven't been proven authentic. Not one of the participants have said they were in it. There is a question of authenticity. So there is no self-incrimination involved.

Rizalist said...

MB, NIce try. hehe...Nice music video. awful conspiracy theory. Saw it last week from rodel rodis in the us antiwar movement.

Rizalist said...

MB--Nothing "pilosopo" about your questions. I've asked them myself. In garci's case and spoofs, the situation has gotten out of hand and can't be controlled. He could sue on defamation but that would require divulging his identity on the tapes. Under the wiretapping law, SOMEONE else has claimed these are wiretapped, which is all he alleges in his prayer. On that basis there seems to be prima facie evidence that SOMEONE is using unauthorized wiretappings and SAYING his voice is on them.

Actually here is another perspective. Suppose Garci admits that is his voice on the tape and I agree I am in possession of a tape recording of his voice. Have I not admitted to a violation of the Anti wiretapping law since I cannot produce a warrant authorizing me to possess themn??

manuelbuencamino said...

I guess so.

But then again you can always claim you thought it was a spoof and now that you its real because he himself admitted it was real then you can say you are going to burn it or surrender it to the proper authorities and offer your profuse apologies to Garci for having in your possession illegally acquired recordings of his shenanigans with GMA.

Rizalist said...

Okay, now imagine that we weren't talking about garci but you talking to a porn star about something totally innocent, but which really sounds bad. I've just aired it on radio and tv. Would you accept the apology you suggest that I thought it was just a spoof and never realized it was you, until you came to complain about my broadcast?

Gotcha MB!

My main point is that the Antiwiretapping Act is really our friend. We should use it against the people's enemies, in the right and proper way.

Someone made the garci tapes. yet the opposition is stuck on what they think they hear on the tapes. the culpable crime however is the original illegal recording by isafp and whoever ordered it. That is a crime that can be prosecuted UNDER RA 4200. that is the crime GMA should be impeached for, not voterigging, which can't be proved purely with the garci tapes.

manuelbuencamino said...

never doubted RA 4200 was our fiend.

I was simply trying out what I would tell the judge when I am arraigned for possessing a copy of those tapes. Besides I so thoroughly enjoyed listening to them I would hate to give them up. .

Rizalist said...

hahaha! there's no way to give them up actually once they fall into the "public domain." as these have. I actually turned them into a DVD, but I'll take the cue from you MB -- I think it's a spoof!

Bernardo F. Ronquillo said...

Gloria and his trio of Ermita, Gonzales, and Defensor do not mind if the Supreme Court declared the CPR, 464, and 1017 unconstitutional. They can always intentionally misunderstand the ruling of the SC and do them again by rehashing it and doing another version of the three.

After all, the President has the Police and the Military. The SC has no one. And the SEnate and those opposing Gloria "only" the PEOPLE.

Rizalist said...


Learned a new term: ULTRA VIRES which means I think...

"bad gurrrllll bad gurrrlll!!"

Btw check with gamaliel today or tomorrow for kjv...

Bernardo F. Ronquillo said...

DJB, I just learned that Gamaliel got the two KJV Bible the other day. I will drop by him Sunday to get my copy. Thank you so much and may God bless you and yours richly.



Re: "Who really won then?"

Gloria won!