Dick Gordon and the Can't-Do Naysayers

NAMFREL's JOSE CONCEPCION has joined the Comelec's Benjamin Abalos in giving up on even a pilot test of an election automation system during the May, 2007 midterm elections --

He is an advocate of poll automation, but after trying his best to come up with a “win-win solution,” even National Movement for Free Elections national chair Jose Concepcion Jr. admits implementing it in the next elections, even in just one small town, would be impossible.

Senator Dick Gordon thinks it can be done and is just a question of having the will to do it. I agree with Senator Gordon. It's time for him to perhaps take over the Namfrel cast from those who've taken it about as far as they can and have only become a part of the problem after the GMA election machine coopted them in 2004.

It's time to show what volunteerism and the will to get something done to secure this Democracy, CAN DO. Already maimed by Chief Justice Hilario G. Davide, Jr. with his insane violations of duty and the explicit provisions of the Constitution during his coup d'etat and judicial putsch of 20 January 2001 (Edsa Dos People Power), all our Democracy has left are these regular elections to save it from the clutches of the political classes and their operatives.

Knowing Dick Gordon, he won't give up so easily as these others.

Posting may be light the next few days. Am up in Baguio on the way to Mount Pulag in a couple of days for a lil subzero weather to escape the political and environmental miasma in Manila. It's been record cold up here, and its the first time I've seen the locals wearing jackets and sweaters at noontime!

By the way, if anyone out there knows anything about radiocarbon-13 dating of the Banaue Rice Terraces, I'd like to hear from you. No one seems to know for sure because I can't find anyone who has actually done the scientific work required.

Davide to the UN -- We Get What We Deserve

MANOLO QUEZON (The Explainer) chides former Supreme Court Chief Justice Hilario G. Davide for rushing to take his oath as Ambassador Extraordinary and Plenipotentiary to the United Nations even if the Commission on Appointments won't confirm him. He says this demeans the former Chief Justice by making it all look like cheap political payback from President Gloria Macapagal Arroyo. Well, maybe the Explainer is learning to call a spade a spade. But I am still waiting for the day when Manolo runs out of justifications, rationalizations and defenses for that space-time Constitutional anomaly we call Edsa II People Power. I am confident that in the fullness time he and other good Filipinos of sound mind and stout hearts will come to discover the supreme importance and utter indispensability of fealty to and strict adherence to the substance and spirit of the Constitution. I have the unshakeable faith that they will come see with the same clarity as I believe most Filipinos do, that ALL Constitutional officers, not just the President, must be held to a public accounting of how they have or have not discharged their solemn oaths of office. In Davide's case, the passage time only increases the undeniability of his culpable and despicable dereliction of duty in the matter of upholding the explicit provisions of the Constitution on Presidential succession. Democracy was ignored, bypassed, negated, disrespected by that single, transcendental act of his on 20 January 2001.

The means simply do not justify the end.

In my opinion, Davide does not deserve the nation's respect, nor History's, for his act of illegally and inexplicably swearing in GMA, is truly indefensible, legally, morally and intellectually. He shall not pass into that Future scot-free of his crimes, nor shall his reputation be unmolested by the Truth, and neither shall his memory be revered even when he shall have passed away, for the harm and evil he did, will live on in the demoralization of the government and debasement of the Filipinos. We shall never wear the robes of Sovereignty with dignity and self-respect, until we shall have become a nation of laws and not of men and women who refuse to see how butt-naked the Emperors of our admiration and acquiescence really are.
Former Ambassador Letty Shahani was Manolo's guest tonight, but like Sonny Alvarez, she is given to working the small stuff nowadays...nostalgia and senior statesman shit. Unwilling to challenge the fundamental issue of Davide's authorship of the present dysfunctional democracy, she was talking as if none of this really matters much to her, except that the Foreign Service was so much better in the halcyon days when there was a "sense of mission." Her basic message was, this is just the way it is with the Filipinos, first they fight fiercely, then they forgive and forget...Just like you M'am, I guess they have no eternal principles to believe in and fight for -- but sheer survival. Ambassador Shahani and Manolo Quezon probably share the same opinions I do that the 2004 elections were defrauded by GMA with Virgilio Garcillano's help. They should wonder where she got the gall to so disrespect Democracy and the Constitution, and who it was who showed her how easily and stealthily both could be cheated of their due.

But if Davide and GMA are good enough for us, then indeed, we shall get what we deserve.

Kit Tatad Writes a Letter to Joseph Estrada

Reproduced in full below is an Open Letter by former Senator Francisco "Kit" Tatad to Joseph Estrada as chairman emeritus of the United Opposition (UNO) which was printed on pages 16 and 17 of the Philippine Star broadsheet (Jan. 29, 2007) following Tatad's recent break with UNO. It offers valuable insights into the goings-on within Erap's camp and the "Oppposition" that just can't seem to get it together for the 2007 midterm elections. Analysis and commentary tomorrow...

TATAD ASKS ERAP -- WHY DO YOU WANT TO DO THIS TO OUR PEOPLE?

President Joseph Ejercito Estrada
Chairman Emeritus
United Opposition

Dear Mr. President:

I write to make of record my position on certain issues related to the May 2007 senatorial elections. My only concern is the honor of our party and wellbeing of our people.

I shall start by recalling our UNO meeting on Polk Street on New Year's day (morning). Joining the President then were Mayor Jojo Binay, Ernie Maceda, Tito Sotto, Chiz Escudero, Boy Morales, and myself. Fred Lim and Baby Asistio joined later.

The meeting followed no set agenda or structure. Tito Sotto had much to say about his group which he believed should be on the UNO ticket. This included:

1. Tessie Aquino Oreta, who did not seek reelection after her first term ended in 2001;
2. Sonny Osmena, who ran unsuccessfully on the administration ticket in 2004;
3. Greg Honasan, who is now under detention on charges of rebellion following his highly publicized capture in Quezon City;
4. Loren Legarda, who wants to go back to the Senate at the cost of her vice presidential protest against Noli de Castro; and
5. Tito Sotto himself, who is back on entertainment tv in preparation for the campaign.

It was the first time I heard of this group earnestly wanting to run under the Opposition. Last year, they sent Johnny Rojas to represent them in our UNO meetings. From him we learned that they had been preparing to run, but that they would rather stay "somewhere in the middle," than identify themselves openly with the Opposition. Many of us (notably Jojo Binay) were particularly anxious about that statement. So I listened to Tito with undivided attention.

Tito and Chiz Escudero provided most of the conversation, with Ernie Maceda occasinoally interjecting. mention was made of:

1. Ping Lacson, who has abandoned his earlier decision to run for mayor of Manila and decided instead to seek reelection;
2. Ed Angara, who was reported to be putting [together] a "unity ticket," but in whose behalf Loren Legarda had reportedly telephoned the President for possible inclusion in the Opposition lineup;
3. Manny Villar and his group, which includes Joker Arroyo, Ralph Recto, and Kiko Pangilinan; and
4. Drilon's Liberal Party, which was reported to be pushing for Noynoy Aquino's inclusion in the UNO slate.

No one opposed Lacson's reentry, but no one pushed for Angara's inclusion. There was not much information about Villar's group -- not even Jojo Binay could say whether or not his friend Joker was running again. The President said he expects to meet shortly with Villar. Upon mention of Noynoy Aquino's name, Tito Sotto promptly cut in to say that between Noynoy and his auntie, Tessie Aquino Oreta, the latter would have better chances of winning. Fred Lim disagreed, saying that if Noynoy ran, his sister Kris Aquino, who is a tv host, would certanly ensure his winning.

I made two short interventions.

1. I proposed that UNO set some criteria or standards before admitting anyone who wants to ride the Opposition bandwagon. Some these people had junked the President without ceremony to support Mrs. Arroyo in 2001 and 2004; now they want UNO to give them a ride because it seems no longer profitable to be identified with Mrs. Arroyo, although they have not openly abandoned her. They want to collect on every throw of the dice even after they've lost the game. And we seem so eager to provide the revolving door for their crass opportunism. Has it never occurred to us that UNO, rather than Ed Angara whom UNO has excluded from its lineup, could end up putting together the "UNITY TICKET" that combined the best and the worst administration and opposition personalities?

2. With great pain, I expressed some reservations about drafting Koko Pimentel, Alan Peter Cayetano, and J.V. Ejercito as UNO candidates while Koko's father -- Senate Minority Leader Nene Pimentel, Alan Peter's sister -- Sen. Pia Cayetano, and J.V. Ejercito's half-brother -- Senator Jinggoy Estrada are sitting in the Senate until 2010. I jut could not accept the ideo of such bright young men doing what the "trapo to end all trapos" would probably not do, and for the Senate, with all its absurdities, to end up as a mad and shallow "Family Ball." Where Malacanang failed, UNO just might succeed -- we would abolish the Senate's reason for being.

I would have been proud to campaign for these young men if this one impediment did not exist, or if their next of kin gave up their Senate seats right now. But under the circumstances, the Titanic would sink if the three wonders came on board. I would rather encourage J.V. Ejercito to go for a third term as mayor of San Juan; Koko Pimentel to try his luck a second time in Cagayan de Oro, where he lost his mayoralty bid when his father was Senate President; and Alan Peter to do something exciting in Taguig in the meantime. They have all the time in the world towait; they can wait; they should wait.

I had to die in that meetng to be able to say the first line of a long sentence. I had already lost too many friends because of politics and I did not want to lose any more tha I already have. But the truth need to be said, and nobody else seemed to willing to say it. I had to take the risk. The ancients said it so well: Amicus Pluto, amicus Socrates, sed magis amica veritas -- "Plato is dear to me, Socrates is dear, but the truth is dearer still."

This was not a question of the Constitution or the law, but simply of ethics -- of what is right and proper. Article II, Sec. 26 of the 1987 Constitution says, "The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law." No enabling law has been enacted, but we have a serious moral duty to live by the spirit of the Constitution, and not make the problem of political dynasties any more messy and than it already is.

Political dynasties are either appreciated or hated, tolerated or feared. But even in the worst of cases, dynastic family members try simultaneously to occupy as many different offices as possible, or else they alternate or rotate in holding on to a particular office that allows them to exercise power. Never do they sit together in the same office at the same time. This is precisely what the three young men's senatorial bid threatens to alter.

The obvious assumption is that the voters are so pissed off with GMA that they will eat any kind of dung we give them. This is false. We cannot have such a very poor opinion of our people. In the end, they will prove us wrong, whatever the paid pollsters tell us. Thereafter, twelve or eight or six families could end up controlling all 24 seats. Husbands and wives, together with their sons and daughters, and uncles and aunties, why not, could end up running as one big gang.

You, Mr. President, and we, your friends in UNO, have a special responsibility to make sure this does not even begin to happen. The Senate is a small body of 24 members, representing a nation of 90 million Filipinos or about 18 million families. No single family has a vested right ot be represented there. Membership in the Senate is a privilege conferred by the people. It is a gift from them, except when cheats manage to rig the electoral process. No two senators from a single nuclear family had ever sat there until Jinggoy was elected in 2004, after his mother Sen. Loi Estrada had been elected in 2001. But this was the result of an extraordinary situation, an exception which proves the rule.

We all know how and why in happened. In 2001, the President was removed in a coup after his impeachment trial was cut short by a walkout of the prosecutors. He wanted to show -- and the Opposition and the voters agreed with him then -- that despite his removal he continued to enjoy popular support which the people were willing to translate into Senate seats for his wife Loi and his son Jinggoy. That, however, was to be a one-shot deal only, not to be used as a precedent or model.

Now that Senator Loi has decided in your words, "to retire" and become your "caregiver," that exceptional situation would cease to exists, and what many believe was truly an error would be finally cured. But were the President ot inflict his other son J.V. Ejercito on the UNO ticket, then he would be perpetuating the error, and encouraging others to follow his example, as seems to be happening now to th etwo otherwise bright young men -- Alan Peter Cayetano and Koko Pimentel.

Not only would the President be perpetuating an error, he would also be confirming the suspicion of those who reject any possibility of his assuming any leadership role in the post-Arroyo scenario before or after 2010 -- that his ideo of the national interest is serously impaired by his devotion to the personal. This is totally unnecessary and unfair.

We at UNO cannot possibly support this error without in effect telling the masses, whose champions we say we are, that, contrary to what we have been saying to them, and what we have led them to believe, our primary interest has nbever been to serve them but only to serve ourselves. We would thereby be throwing away our moral advantage, and making our party the most effective campaigners for the administration.

I have no doubt that if the administration tried to do what the leader of UNO wants to do now, we would be the first ones to shout to the high heavens in outrage and anger. Why then should we ever want to o it ourselves? Our people expect us to do better, and we have so assured them. Have we been lying to them all this time that we have been syaing that Mrs. Arroyo is the liar? If we are no better than the ones we denounce, what right have we to be here at all? To whom will our people turn if they see that the administration and the Opposition have cancelled eath other out? Would this not be the cruelest betrayal?

In the meeting, I waited to hear someone say I was wrong. I waited to be told that the reason or reasons for drafting the three next of kin of sitting senators were far beyond my ability to grasp in one short lifetime. But there was no effort to shoot down or refute my objection. No effort to explain why UNO has to have all the star fruits and the three wonders on this dream ticket. You will, therefore, understand why when you and Ernie Maceda agreed to release to the media the names of the three wonders as part of your proposed ticket, while my objection was waiting to be addressed, I felt that my long service to the Opposition and my presence in that meeting had just been annulled. That was the worst possible slap I had every received -- and from my party colleagues yet. For that reason, I decided that any future participation in any UNO activity on my part would be completely superfluous.

The real issue here is our moral integrity as the presumed alternative to the Arroyo government. I have fought for this, a little more than many of those you see in the street marches. After the 2001 coup, many simply decided to cross over to the administration. Many others decided to watch and see, to bury their heads in the sand, or to negotiate the terms of mutually beneficial coexistence. I decided to keep on clarifying the issues for myself, the Opposition, and the nation. Many of those now grovelling before you used to laugh at the very line which they now superficially spout for your pleasure. There were times when all I could hear was my lone solitary voice -- and that of Professor Alan Paguia, whose right to practice and even teach law has since been cancelled -- madly questioning President Arroyo's legitimacy after almost everyone else had caved in.

But I refused to back down. With the help of a few brave souls on the Citizens vs. Corruption Task Force, I continued to expose major scams in the government, including the P100-billion customs bonds scame, the P100-million DOTC airport land scam, the $2 million BSP fund diversion in Hong Kong, the misuse of OWA funds, and the P728-million Agricultural Modernization Fund scam, now known as the Jocjoc Bolante affair, which became cause celebre at the Senate in 2006, two years after I had exposed it at the start of the 2004 campaign.

That entailed a hevay price, and I paid it in full. In the 2004 elections, which I though was the best of my senatorial campaign, I was singled out for demolition. This was known to PMP and to KNP, whose members had read or heard about Oplan Checkmate, which detailed the plot against our presidential ticket and me, and which had surface at the start of the campaign. As always, you did what you could do to help, but if there was any party or coalition effort to save my candidacy from the Oplan, it never caught my attention.

On the campaign trai, radio-tv-coverage suddenly vanished as soon as it was my turn to speak. My campaign posters everywhere were brought down by the wrecking crew in less than 24 hourse. On election day, my name disappeared from the 12-man KNP senatorial slate on the Comelec official list of candidates posted in every voting b ooth to guide voters and appeared separately as the lone PMP senatorial candidate at the bottom of the printed form.

At the counting, my votes mysteriously shrank by something like 80% as they traveled from the barangay precinct to the national canvassing center. In contrast, the votes of one losing candidate were padded by at least 200% to make the recipient on of the top senatorial winners. Ultimately, my recorded "historic vote" a term known to seasoned political players and analysts -- which in two successful senatorial elections had risen to close to 11million by 1995 was savaged to nearly half that number.

Today, I am a defendant in a criminal libel case filed by the First Gentleman in a Manila court arising from a 2004 post-election newspaper article which attributes to me certain statements that not even slightly libelous. My name had been dropped from the complaint in 2004 but was reinstated in 2006, upon motion of the complainant -- after the supposed crme had legally prescribed.

All this is par for the course. None of it should have been mentioned here were I not obliged to show that I have earned the right to be heard on the basic morality of our cause.

Before I left Polk street, you came over to say that yould like to have me included in your senatorial slate. I begged off. "Please don't, Mr. President," I said. You tried to insist, but I pleaded, "Please, Mr. President." You did not say so, but you seemed to be under the impression that I was objecting to certain candidacies because I wanted to be a candidate myself. That was not the point at all. It was a total misimpression. We should know each other well enough by now for you to know if there was anything I have ever done or would ever do just for my own self-interest.

My one consuming desire is to see the country return to a state of normalcy where all can live a morally upright life, and one does not have to be part of a power structure to get the respect he deserves. Where law and justice are one and truth presides, where deserving individuals are elected to high office because the office needs them, and not because they need the office. For this reason, I wanted to see electoral reforms before the parade of celebrities and popular incompetenets begins. Thus, I was for boycotting the elections if no electoral reforms were put in place. However, tht position was quickly vaporized after a swarm of ambitious innocents, whose idea of national politics consists purely of packing public office with synthetic personalities, started hyping the Oppositions alleged ability to give Mrs. Arroyo the same "thumping" the Democrats gave the Republicans in the last U.S. elections. This was capped by the President's premature announcement of his dream ticket.

This, I thought was a serious mistake, as did a number of respected foreign analysts. Under these circumstances, I could not bring myself to consider running again, even though I honestly believe that I have the right and duty to regain the Senate seat which was fraudulently taken away from me in 2004. So when you asked me why I would not want to join your ticket, I said: first, becuase I wasnt sure elections would be held -- (to date, there is still no budget); second, because I wasn't sure the elections would be honest, assuming they were held -- we have not insisted on electoral reforms and no reforms have been put in place; third, because I did not believe I could be part of a ticket whose other candidates I could not even endorse to the public. There were two other reasons: I could not allow it to interrupt the joys of grandparenting, and I need to honor some publishing commitments which could no longer be delayed.

This, for me tha, is a new turning point. I began my political career in 1969, when I was appointed to the Cabinet at 29, the youngest such appointee in our history. Through the years, I have fought many fights, many of them lost causes. I have not learned to exchange principle for personal pleasure or profit, and I have always paid the price. This allows me to stand on my own, with no fear of powers or personalities, of the dark or of the light; to snore quietly in my sleep every night in the hope of waking up in the monring to a loving and merciful God; to speak up whenever truth demands a witness, and something that needs to be said in speech and in silence is not being said.

I would be untrue to myself if I said that what the leaders of UNO propose to do with their "UNITY TICKET" is right. It is most certainly not, and I will not dishonor our friendship by keeping silent or pretending that it is right, or of little or no consequence. I want to thank yo for your friendship and for the many personal kindnesses you have extended to me and to my wife, in the course of that friendship. We shall remain friends for as long as we both put ourselves and our personal interests int he sevice of truth, justice and the common good.

May the good Lord guide you always,

Sincerely yours,

FRANCISCO S. TATAD

Philippine Daily Innuendo

YELLOW JOURNALISM is a highly advanced art form in the Philippine Media. (They've learned form the Masters and already far exceeded them in subtlety and malice.) I try to record the most egregious examples for posterity.

Today's Sunday PDI for example has the banner headline: Bush to GMA: Good job

This follows a telephone call from the US President congratulating the Philippines for ending the careers of Abu Sayyaf "spiritual leader" Khadaffy Janjalani and its "overall commander" Abu Sulaiman.

Now when you read the article and look through the White House dispatches, you find out that the President George W. Bush never actually used the words "Good job." The PDI consigliere-ombudsman, Raul Palabrica, or its editors and publishers, would probably counter that the paper didn't put these words in quotation marks, but the malicious intent of the headline is pretty clear. The paper wants its readers to think that their President Gloria Macapagal Arroyo is really just a Lackey of America--which has been their mentally unbalanced editorial position, especially with respect to the Visiting Forces Agreement, the Subic Bay rape case, and any number of issues affecting Philippine American relations.

The newspaper Philippine Daily Inquirer, which styles itself as nationalistic and patriotic, makes the contention that the War on Terror is just America's war, and that we don't really have a stake in it. Their take since 9/11 is that the Philippines is vulnerable to America's enemies only because the Philippines is America's friend. To them, the reasons terrorists have attacked the Philippines is because of our close relations with the United States. The paper has consistently opposed anti-terrorism legislation as subject to abuse, misdirected, or a danger to civil liberties. (As if life were not civil right of terrorism's victims!). The broadsheet has never quite grown up about Philippine American relations, which they still regard in victimological terms.

Now if anything galls me about what is happening in Mindanao, it is the fact Gloria and not the soldiers and officers responsible for the severe degradation of the Abu Sayyaf terrorist group (which PDI used to portray as a mere kidnap for ransom and bandit gang, and which even in today's article they describe as "extremist"--as if there were "moderate" terrorists in Mindanao.) gets the glory. I seem to recall an interview by Pia Hontiveros last week of a newly decorated Marine who participated in the firefights that killed Janjalani and Sulaiman. He mentioned one Col. Angel Querubin as a role-model of Filipino insurgent fighters, being only one of two Medal of Valor awardees. Ironically, Querubin is currently charged with rebellion in Court Martial proceedings along with the Oakwood mutineers, who were also our most sterling defenders in battles with Muslim and communist insurgents. They are actually in trouble with GMA and the AFP hierarchy for battling endemic corruption there and trying, perhaps ineptly, to expose it. I think this aspect of it is the most painful -- that the Just, and the Brave, are punished to keep the Wicked in power.

The authoritative analysis of recent events in Mindanao is at the Belmont Club (Part 1 and 2) and Pajamas Media, whose Sydney, Australia editor, Richard Fernandez, has been writing from the Archipelago the last few months, in case you haven't noticed.

By the way, I got an interesting email from The Hillblogger (Anna de Brux) who blogs from Europe, on CSAFP Hermogenes Esperon's fashion sense--

Hi Dean,

An 'official picture' of the military with GMA and General H Esperon, CSAFP and DND Sec E Ermita appeared on the front page of of The Philippine Daily Inquirer.

I was shocked to see in that picture, the chief of staff AFP in a formal pose in the middle of the troops fresh from a battle front in the South sporting civilian attire. The chief of the Armed Forces of the Philippines seriously committed a breach of military protocol.

If for the sake of argument, General Esperon was caught in the middle of two engagements requiring him to don a civilian attire, (1) he should have refused to pose in an official military pictorial that he knew would be published in a major broadsheet; it is very unlikely that he didn’t know that it would be published, he needn’t have joined the pictorial (2) if he, as CSAFP, agreed to pose in the middle of the valiant uniformed troops in civilian attire, he should have made sure that the picture would remain in the bottom drawer of the AFP official archives, unpublished in any of the nation's broadsheets.

All said, Mr Esperon committed grave indescretion vis a vis the Philippine military - he was UNECESSARILY LAX. There COULD HAVE BEEN NO EXCUSE, absolutely NONE!

I’ve met many chiefs of staff, Philippine and foreign, and allow me to tell you that a military officer in that position, cannot allow himself the slightest error particularly over something that could have been EASILY avoided, i.e., appearing in OFFICIAL pictorials with troops fresh from the battlefront… This wasn’t a birthday party - this was an official military PICTORIAL that would reverberate the world over because the picture will have been picked up by the various military attachés assigned in the Philippines and forwarded to their home office! As we speak, a few foreign military officers who saw the published picture would be surprised to see the AFP leadership so lax and I suspect, given the AFP's not too outstanding reputation in the military world, they would think the Philippines as having a 'second rate' military just because General Esperon had been lax.

Could you imagine, General Sir Richard Dannatt, Chief UK Army posing in civvies in an official function with uniformed troops who had just got back from the battle front? Firstly, it would never have happened, secondly, he WOULD BE SACKED if it happened -there would be great public clamor to replace him, he would be severely criticised and relentlessly so in the British press, virtually roasted alive.

The chief of a nation's military cannot BE LAX, particularly when it could be easily avoided. No ifs, no buts! If the military chief is lax, the troops become lax. If General Esperon wants an excuse to be lax, then he must resign and return to civilian life.

No wonder the Philippine military is in shambles! Its chief is lax…

Anna

Biofuels -- The New Snake Oil?

IOFUELS are suddenly big in the Philippines.

Congressman Juan Miguel Zubiri is running for the Senate under the Palace ticket. Styling himself as "the Green Candidate" Migs is pushing BIOFUELS, as an environmentally friendly solution to the Philippines' perrennial oil supply and price problems. During a recent Private Conversation with Boy Abunda on ANC, Rep. Zubiri was waxing eloquent, poetic, even fantastic about the potentials and possibilities of the Biofuels Act of 2006 recently signed by the President. He claims that biofuels are:

(1) the answer to persistent energy and environmental problems;
(2) that their development and production will lead to countryside development and decongestion of the cities; and
(3) eliminate the need for Filipino engineers and scientists to seek work abroad as OFWs "since they can work on biodiesel plants in Batangas."

All this, because the Biofuels Act provides for a mandatory blend of at least five percent bioethanol into vehicle fuel by 2008 and 10 percent by 2010?

But before you start planting sugar cane or jatropha in your backyard and jumping on the biofuels bandwagon, let's take a bit of a reality check...

The total land area of the Philippines is about 300,000 square kilometers, of which 19% is reported to be "arable land" or 60,000 square kilometers. In a sense this represents the maximum biofuels potential of the Philippines for a specific thing like ethanol from sugarcane. If you plant every square inch of land to sugarcane, you can calculate how much ethanol you can potentially make (assuming of course we are willing to give up growing our own rice, corn, and other crops for FOOD.)

Indeed, the Washington Post:(False Hope of Biofuels) did that calculation for the continental United States, which has a land area of 9.8 million square kilometers, based on the known yield of 350 gallons of ethanol per acre. Likewise, one can make the same calculation for Brazil whose land area is 8.5 million square kilometers.

Do the Math, Migs. You're full of BIOGAS man!

FOOD OR GAS? Of course the elephant in the biofuels bandwagon is what the environmentally correct but scientifically inept insist on ignoring. Here is how Polytechnic University of New York researchers put it in that Washinton Post article above--

Finally, considering projected population growth in the United States and the world, the humanitarian policy would be to maintain cropland for growing food -- not fuel. Every day more than 16,000 children die from hunger-related causes -- one child every five seconds. The situation will only get worse. It would be morally wrong to divert cropland needed for human food supply to powering automobiles. It would also deplete soil fertility and the long-term capability to maintain food production. We would destroy the farmland that our grandchildren and their grandchildren will need to live.

This is another example of how environmental ideologists ignore simple science and bring about unforeseeable consequences, as in the amazing case of DDT, which was "demagogued out of use." Now we have a new snake oil being pushed in biofuels.

Ronnie Puno Is Cruisin' for a Bruisin'

Bad Optics, Bubba! Ricky Carandang had the Secretary of the Interior on The Big Picture (ABSCBN News ANC) Thursday night. Cool as cuke, I hope Ronnie Puno runs for the Senate on the administration ticket...

President Arroyo has signed into law Republic Act 9369, an Election Automation Law developed by the Senate under Richard Gordon's committee on Constitutional Amendments, with ample help from Senators Serge Osmena, Rodolfo Biazon and Juan Ponce Enrile. During the 2007 midterm elections, the law mandates the Commission on Elections (Comelec) to pilot test a partial automation system in six major cities and six provinces throughout Luzon, Visayas and Mindanao.

Senator Gordon has recently stated that unless some kind of demonstration is done by the Comelec in the 2007 Midterm Elections, the Public may not expect a fully automated system in place by 2010 Presidential Elections either. Formerly Mayor of Olongapo City, and the first head of the Subic Bay Metropolitan Authority (SBMA), Senator Gordon won't take the Comelec's CANT-DO attitude sitting down. Nor should he! I think that a transmission system can indeed be demonstrated in 2007 in preparation for a nationwide system to be adopted in 2010. Six cities and six provinces only represents a fraction of the 250,000 voting precincts expected to service up to 50 million voters in over 80 provinces.

A city like Makati has about 200,000 registered voters, requiring about 1,000 voting precincts. Based on the totals, the average number of precincts per province is about 3,000. Assuming that the voters will cast their paper ballots and that these will be manually counted as usual at each voting precinct by a Board of Election Inspectors (BEI) consisting of three public school teachers, can anyone think of a way that the results of those 1,000 precincts per city and 3,000 precincts per province, might be securely and electronically transmitted to a central information processing facility that is in the Public Domain? Can such an amazing feat be done in just twelve Cities and Provinces in Luzon Visayas and Mindanao? I really don't see why not!

JAMES JIMENEZ who often speaks for the Comelec on TV and the Press, addresses the issue of how to regulate SMS and Internet Campaigning on his new WordPress blog. James says wryly but ominously,

"Not that I’m giving anyone any funny ideas, but that’s how it is. How can the COMELEC regulate that sort of thing? If anyone has any idea on how it can be done, let us know. I may be totally against any sort of regulation being slapped on SMS and internet campaigning, but that doesn’t mean the COMELEC will just fall in line behind me.I may be totally against any sort of regulation being slapped on SMS and internet campaigning, but that doesn’t mean the COMELEC will just fall in line behind me."

Well, King Canute may have had more luck with the Sea than Comelec will have with the WEB and SMS as James readily admits. Comelec's track record over the years is well marked by a string of disastrous Supreme Court cases in which something Comelec does is reversed, decertified or otherwise rejected by the High Court. I hope James is right that Comelec will not find some new way to be struck down by the Supreme Court and Public Opinion.

Speaking of which, James had his hands full on Strictly Politics with Pia Hontiveros last Tuesday night on ABSCBN ANC as they were discussing Comelec's recent faux pas on the matter of Public Opinion Surveys during election periods. Only his trademark equanimity saves him every time he appears on behalf of the government agency that is consistently in the cellar of the Public's trust and confidence. He describes the ordeal in his own words in Zero Defect.

EXIT POLLS The issue had to do with the January, 2000 landmark decision penned by former Chief Justice Artemio Panganiban, ABSCBN Broadcasting Versus Commission on Elections, in which the Supreme Court upheld the use of Exit Polls after elections and the publication of their results. Perhaps the Comelec should busy itself more with securing the accuracy of their count and even more the security of their canvass.

In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other.

Nota bene: In seeking to prevent the 1998 SWS/ABSCBN exit poll of the Presidential election by issuing the Resolution assailed in the above case, the Comelec questioned the exit polls as "highly unreliable" because of the "randomness of selecting the interviewees" and thought this could endanger the credibility and integrity of the electoral process. The Supreme Court corrected this false premise by pointing out that modern random sampling techniques --contrary to Comelec's reasoning--actually improves the accuracy of an exit poll in predicting both winner and margin of victory in an election. But the Court makes clear that it is NOT the apparent reliablity of certain polls that justifies their use at all, but the fundamental right to express an opinion. Indeed, a public opinion poll, in the words of the Court, "consists merely of the opinion of the polling group as to who the electorate probably voted for" based on the data they've collected. Public opinion polling is therefore a kind of fusion of academic research and Op/Ed journalism.

ALL POLLS ARE EQUAL BEFORE THE LAW AS OPINION Are only the scientific public opinion polls protected by the Supreme Court decision ABSCBN v. Comelec (2000)? At a fundamental level, I don't believe so. I think that even unabashedly unscientific public opinion polls, which are really good for nothing more than entertainment, are equally protected by the principle just enunciated above -- that ALL public opinion polls, as far as the Law is concerned, are protected by the sacred freedoms of speech and expression. No test of scientific accuracy may be imposed by the government on such exercise of free speech, no more than it can impose, religious, cultural, political or other test on what a person can say, think and publish in any medium available to him or her. In other words, it is not only SWS and Pulse Asia that are allowed to express OPINIONS about elections, the electorate, candidates, and suffrage.

At the same time, I want to correct certain widespread misimpressions that James Jimenez's fellow guests, blawger Ed Lacierda and Business World's Vergel O. Santos may have left with Pia's TV audience by uncritically standing up for the surveys as generally "fair and scientific."

...YET NOT ALL POLLS ARE SCIENTIFIC While the SWS and Pulse Asia Surveys have been often enough accurate in predicting the quantitative results of elections, the same level of scientific respectability cannot be accorded to what I consider to be UNSCIENTIFIC public opinion surveys that are also conducted by SWS and Pulse Asia, namely things like their "self-rated Hunger and Poverty" surveys. Such surveys are not independently shown to be right or wrong in subsequent real events, unlike exit polls or pre-election voter preference surveys.

The subtlety here lies in the fact that though SWS uses the exact same scientific methodologies to collect the data through questionnaires and analyze them mathematically, the survey questions asked in an exit poll or voter preference survey are fundamentally different from the survey questions asked in a self-rated Hunger and Poverty poll. Since the elections are precisely what voters have registered for, and participate in, their answers to survey questions at an exit poll are likely to be definitely known to them. But in a self-rated hunger or poverty survey, the questions may mean different things to different respondents, since there is not common experience or event, which validates their answer in their own minds. Since survey takers always try to put respondents at ease by truthfully saying there are no right or wrong answers in such an exercise, of course people answer whatever first comes to their mind. Thus, the data in hunger and poverty surveys tend to be suspiciously erratic, seasonal and cyclical and impossible to question or verify. Yet they are superb as PROPAGANDA against the government authorities, who, when confronted with DATA are ill-equipt to assail the unscientific nature of the questions asked, and the unwarranted conclusions and generalization by the pollsters themselves, amplified by a Media that thinks publishing the Margin of Error makes their coverage professional and unbiased.

Acquiescence Invents Reasons That Reason Knows Nothing Of

SONNY ALVAREZ understands the Constitution and the Law far better than he was letting on while talking to Manolo Quezon about Edsa Dos on The Explainer (ANC) Tuesday night. Sonny likened those developments to a game of chess in which a power vacuum had to be filled by the Vice President, allegedly in the interests of maintaining "an orderly community." Sonny's argument leaves me cold, it's just another fallacious variation in the defense of Edsa Dos in which the end of Erap justifies the illegal and immoral means employed by a Chief Justice plainly in dereliction of his sworn duty and a Chief of Staff that invented a euphemism for Mutiny in "withdrawal of support." But it made me shudder to realize Sonny Alvarez is the same man that fought the great good fight against the dictator Marcos with Raul Mangalapus and Ninoy Aquino (albeit mainly as a steak commando in the environs of Washington DC and New York City). Yet here he was, justifying and rationalising, along with MLQ3, a violation of the Constitution as bad as anything Marcos ever did! Sonny Alvarez simply knows better. But acquiescence forces a person to find reasons that Reason knows nothing of and justifications that are not only lame but intellectually dishonest.

So choke on Javellana vs. Executive Secretary, Sonny! Everything has come full circle and you are become the Enemy you once fought. You've come imbued with the borrowed, second-hand soul of that same infamous decision, but in the guise of Estrada vs. Arroyo.

Though Manolo was trying to be helpful by insisting that somehow Erap had thrown in the towel, the unavoidable truth is that Edsa Dos was an illegal Regime Change that undeniably violated the Letter and Spirit of the Constitution. I have no reason to reject a just and reasonable ruling of the Supreme Court. But one that revolts my senses of logic and morality and adherence to the Constitution in its substantial and essential aspects, such a decision should earn our derision and everlasting disdain. It was not only for Erap to obey the Constitution. Nor was he the only one who violated their oaths of office and shirked their bound duty. The Rule of Law is not the Rule of Force, nor of chess, nor a game of Generals and Judges deciding what is ultimately good for the people and the country.

Edsa Dos was a space time anomaly in the universe of constitutional democracy, because the nearly inconceivable happened--the head of the Military mutinied and the Supreme Court Chief Justice ignored the Constitution, ignored his duty to conduct the Senate Impeachment Trial, and inexplicably swore in the Vice President for no good reason. The "Rule of Law" is once more sacrified to a Doctrine of Acquiescence just as it happened once before with Ferdinand Marcos. Because people like Sonny Alvarez cannot bring themselves to admit it!

Finally, when MLQ3 asked Sonny Alvarez why, after six long years, the Government has failed to convict Joseph Estrada, his dodge of a non-answer was to point at the non-resolution of the Marcos cases and slow pace of justice in the Philippines. I would say this was a most disingenuous analogy considering that Marcos is dead and that he had fled. Erap is alive and and he never ran away to exile even if it was offered to him with the blessings of the Powers That Be.

In his old age, Sonny Alvarez has succumbed to the disease of power, moral inconsistency. That is why there is no more fire in belly, no more sparkle in his eye. For the light of ideals and eternal principles has been dimmed in him and no longer animates his mind nor inspires his soul. He has nothing more to contribute to the Public Discourse but inutile acquiescence.

All that is left for Sonny Alvarez is the Survival of the Mediocre.

On the Civil Liability of Supreme Court Justices

Guest Commentary by Prof. Alan F. Paguia

EVERY CITIZEN is entitled to the protection of his life, liberty and property. This protection is guaranteed by the Bill of Rights under Article Ill of the Constitution as against the vast powers of government which are some-times abused by the public officials who wield them.

To effectively protect these individual rights, Article 32 was included in the Civil Code. Article 32 reads:

Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

Freedoms of religion; speech; to write for the press or to maintain a periodical publication; freedom from arbitrary or illegal detention; freedom of suffrage; of abode and of changing the same; the privacy of communication and correspondence.

The rights against deprivation of property without due process of law; to a just compensation when private property is taken for public use; to the equal protection of the laws; to be secure in one's person, house, papers, and effects against unreasonable seizures.

The right to become a member of associations or societies for purposes not contrary to law; to take part in a peaceable assembly to petition the gov-ernment for redress of grievance; to be free from involuntary servitude in any form;

The right of the accused against excessive bail; the right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf;

Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such a confession, except when the person confessing becomes a State witness.

Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages.

Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. The obvious purpose of this codal provision, according to the Supreme Court in Aberca v. Ver, is "to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution.

Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield -- borrowing the words of Chief Justice Claudio Teehankee -- to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to demo-cratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community."

In the same case, the Court duly noted that: "Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute." According to the Code Commission that drafted the Civil Code, "The creation of an absolutely separate and independent civil action for violation of civil liberties is essential to the effective maintenance of democracy." It will be observed that Article 32 actually contains three (3) rules which identify who are liable under the said provision. These are: the GENERAL RULE, the EXCEPTION, and the EXCEPTION TO THE EXCEPTION. The GENERAL RULE is that all persons are liable. The EXCEPTION is that a judge is not liable. The EXCEPTION TO THE EXCEPTION is that a judge is liable when his act or omission constitutes a criminal offense.

In order, therefore, to hold a judge liable under Art. 32, the complainant must duly allege and prove that the questioned act or omission has the elements of a criminal offense. Each element must be duly alleged. Otherwise, the complaint may be dismissed for lack of cause of action. It will be observed that the EXCEPTION TO THE EXCEPTION is actually a reversion to the GENERAL RULE of liability which may be proven by mere preponderance of evidence. The EXCEPTION TO THE EXCEPTION remains a civil action that is absolutely separate and independent from any other action. Chairman Jorge Bocobo explains that: "The underlying purpose of the principle under consideration is to allow the citizen to enforce his rights in a private action brought by him, regardless of the action of the State Attorney.

It is not conducive to civil spirit and to individual self-reliance and initiative to habituate the citizens to depend upon the government for the vindication of their own private rights, It is true that in many cases referred to in the provision cited, a criminal prosecution is proper, but it should be remembered that while the State is the complainant in the criminal case, the injured individual is the one most concerned because it is he who has suffered directly. He should be permitted to demand reparation for the wrong which peculiarly affects him". "In England and the United States, the individual may bring an action in tort for assault and battery, false imprisonment, libel and slander, deceit, trespass, malicious prosecution, and other acts which also fall within the criminal statutes. This independent civil action is in keeping with the spirit of individual initiative and the intense awareness of one's individual rights in those countries." Something of that same sense of self-reliance in the enforcement of one's rights is sought to be nurtured by the Project Civil Code. Freedom and civil courage thrive best in such an atmosphere, rather than a paternalistic system of law."

Now then, it may be asked: Does the term "judge" under Art. 32 include a Supreme Court Justice? The answer must necessarily be either yes or no. If the answer is yes, then a Supreme Court Justice is civilly liable when his act or omission constitutes a violation of the Penal Code or other penal statute --following the rule of EXCEPTION TO THE EXCEPTION. If the answer is no, meaning a Supreme Court Justice is not within the EXCEPTION, then the GENERAL RULE will apply. In such case, a Supreme Court Justice is civilly liable and in worse situation this time because, unlike in the EXCEPTION TO THE EXCEPTION, his civil liability is demandable even if the questioned act or omission is not a criminal offense. A Supreme Court Justice is therefore, civilly liable under Art. 32 of the Civil Code. In Urbano v. Chavez , the Supreme Court stated that: "The Court is aware of the possibility of public officials being haled to court in an endless array of civil suits.

With or without this pronouncement, and considering the nature of a public office in the Philippines, vis-á-vis the litigious character of most Filipinos as demonstrated by the number of cases filed in the courts daily, this scenario is a fact that must be accepted. The possibility of being brought to court is an occupational hazard of both the public officer and the citizen, in the same way that every occupation has its own hazards to reckon with.

This grim reality notwithstanding. public officials should know that nobody is above the law." In the said case, the Solicitor General was the defendant in a civil suit for damages arising from allegedly defamatory remarks uttered by him. The issue was whether the Office of the Solicitor General had authority to represent him. The Supreme Court ruled that the OSG is not authorized to represent a public official at any stage of a criminal case. The court clarified that the rule applies as well to a public official who is haled to court on a civil suit for damages arising from a felony allegedly committed by him.

The court explained that any pecuniary liability he may be held to account for on the occasion of such civil suit is for his own account. The state is not liable for the same. A fortiori, the OSG likewise has no authority to represent him in such a civil suit for damages. And to bring home the point more emphatically, the Court categorically ruled that their said pronouncement "applies to all public officials and employees in the executive, legislative and judicial branches of the Government." Based on this ruling, it would seem that a Supreme Court Justice who is sued under Art. 32 of the Civil Code cannot be represented by the OSG. According to the case of In Re: Raul Gonzales, a Member of the Supreme Court must first be removed by impeachment before he may be held to answer either: a. criminally, or b. administratively (by disbarment proceedings) "for any wrong or misbehavior that may be proven against him in appropriate proceedings."

To allow such Member who under the Constitution may be removed from office SOLELY by impeachment, (a) to be charged criminally while holding his office with an offense that carries the penalty of removal from office, or (b) to be charged administratively (by disbarment proceedings) during his incumbency -- "would in effect be to circumvent and hence run afoul of the constitutional mandate that Members of the Court may be removed from office only by impeachment." The Court explained that "without the protection of this rule, Members of the Supreme Court would be vulnerable to all manners of charges which might be brought against them by unsuccessful litigants or their lawyers or by other parties who, for any number of reasons might seek to affect the exercise of judicial authority by the Court."

Does this doctrine proscribe a civil suit against a Supreme Court Justice under Art. 32 of the civil code? It clearly does not seem so. While the doctrine categorically dealt with (a) criminal, or (b) administrative/disbarment charges, it totally omitted touching upon an independent civil action under Art. 32 of the Civil Code. The reason is not necessarily difficult to discern. While a criminal or disbarment proceeding against a Supreme Court Justice may lead to a circumvention of the rule on impeachment, the same is not true with a civil action for damages under Art. 32 which only leads to a liability for damages ---- not removal or disqualification -- on the part of the defendant Justice. The civil liability is personal to the defendant Justice because his criminal offense is clearly beyond the scope of his authority as a Member of the Court. The act of a member is not necessarily always the act of the Court.

It is only when the act is performed in accordance with the Constitution and the laws that the same can be considered as an act of the Court. According to one Senator of the Republic, the Supreme Court stands today as "a potential tyrant under our Constitutional system." There is here room for disagreement. Within its constitutional authority, the Supreme Court speaks for the State. "Inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and that which is unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name." When there was much force in the executive department, we were warned about the law of force threatening the force of law. If now, there really is much power in the judiciary, it may be apropos to warn ourselves of the law of power threatening the power of law.

The Supreme Court and Trial By Election

Baycas in the Comment Thread yesterday posts a reaction from La Vida Lawyer (Marvin Aceron) on the "finality" and "unappealability" of Supreme Court decisions as a reaction to Alan Paguia's essay, The Rule of Force--

Doesn't our Constitution say that the Supreme Court is the supreme interpreter of the law of the land? I can still hear Fr. Bernas, S.J., one of ONLY two living experts in Constitutional Law the other being Justice V.V. Mendoza, lecturing that judicial power is the prerogative of the Supreme Court to decide rightly or wrongly over legal issues and still be right. What does that mean? It means that in our constitutional system of government whatever the Supreme Court says over a legal issue, be it logical and lucid decision or arbitrary word salad, is the last word on the matter. The rule of law compels us to obey what the Supreme Court says. That's why some years back when Prof. Alan Paguia lost a big case in the Supreme Court, he published an advertisement appealing to God Almighty to reverse the Supreme Court. In other words, if you lose a case in the Supreme Court, there is no place to appeal anymore but Heaven. If the Supreme Court says, for example, that lunatics can be lawyers, nobody can argue against that. Not the President. Not Congress. It's the law. Hell, we have many lawyer lunatics selling little booklets of their own.

It is the Supreme Court's interpretation that Arroyo's succession is legitimate. Erap resigned, albeit constructively. It is a ruling that will probably be remembered as one of the ugliest, if not the ugliest. But the Supreme Court Justices could have just written the lyrics of "Impossible Dream" to support the decision and Fr. Bernas would have said it's the exercise of judicial power -- rightly or wrongly -- it is right. That's the law. It's final. There is no appeal to a higher court. So how can the ruling of the Supreme Court be a triumph of the rule of force?

Ah yes, the old comfortable argument that the Constitution means what the Supreme Court says it means. But IS there no higher court than the Supreme Court?

Yes there is! The PRESENT Supreme Court of 2007 is not the same as the PAST Supreme Court which issued the anomalous ugliness called Estrada vs. Arroyo, in March 2001. The present Surpeme Court can overrule, revise, or reverse any past Decision by a past Supreme Court! That is how Santiago v. Comelec has been "reversed" on the matter of an enabling law.
That is how, after over a century of PRO-SLAVERY decision making, the US Supreme Court nonetheless came to bless the Manumission of the Negro Race by Abe Lincoln.

In other words, the supreme power of the Supreme Court is that it can always CORRECT itself.
The greatest virtue in every democratic institution is CORRIGIBILITY. Which is why it is FALSE to claim that that there is anything fundamentally permanent or final about any particular Supreme Court Decision, since they are all subject to change BY the Supreme Court itself.

Frederick Douglass, the great American Justice and abolitionist had this to say--

"Your forefathers were men of peace; but they preferred revolution to peaceful submission to bondage. They were quiet men but they did not shrink from agitating against oppression. They showed forebearance but they knew its limits. They believed in order but not the order of tyranny. With them nothing was "settled" that was not right. With them, justice, liberty and humanity were "final" -- but not slavery and oppression. You may well cherish the memory of such men, for they seized upon eternal principles, and set a glorious example in their defense. Mark them."

I hope this point stimulates further discussion on the alleged finality of Supreme Court decisions. Yesterday's decisions are not final relative to the possibilities of tomorrow!

But let me now tackle the more other important proposition in La Vida Lawyer that "There is no appeal to a higher court." Based on the argument on finality, one could easily claim that there IS appeal to a higher court--that the present Supreme Court is indeed, capable of reversing the past Supreme Court, though "appeal" may have to come indirectly or through some new case.

I believe there is a far more interesting notion that deserves consideration--

THE SPRING CANNOT RISE HIGHER THAN THE SOURCE!

Marvin Aceron's analysis (written in 2003) of Alan Paguia's The Rule of Force does not do justice to the truly provocative ideas therein, namely that Hilario G. Davide, Jr. was acting not as Chief Justice (though he was dressed for the part) but a co-conspirator with GMA on 20 Jan 2001--for there was no justiciable case before him to justify his suddenly appearing at the Edsa Shrine to swear her in. He should instead have reconvened the Impeachment Trial which was his explicit duty as Presiding Judge. What Estrada vs. Arroyo (March, 2001) actually decided was that Davide and Reyes and GMA were totally innocent of any crime or violation of their oaths of office. Only Erap did wrong and even did something he denies to this day--he allegedly resigned. It is an awful stretch to claim that the FACTS of history are what the Supreme Court construes them to be

Thus the real intellectual challenge that Paguia hurls down to lesser mortals is that the Case of Joseph Estrada cannot be fairly and impartially tried by the Supreme Court, that it should not have been called Estrada v. Arroyo, but Presidency vs. the Supreme Court, or Estrada vs. Davide! This is an intellectual challenge because Paguia identifies the case as a juridical rarity, a case that could not possibly have been contemplated by the framers of the Constitution. A case, where the Chief Justice throws the Constitution out the window, purportedly "to prevent violence", then the Supreme Court blesses the illegal and unconstitutional regime change that resulted from their Chief's actions. They even had to change the reason for the swearing in from permanent disability to constructive resignation.

Since Erap was clearly denied DUE PROCESS when his impeachment trial was conveniently and immorally aborted after it became clear he had the numbers for acquittal, Prof. Alan Paguia claims that Erap has indeed, lost the PRESUMPTION OF INNOCENCE and can no longer be tried "fairly and impartially" by the Supreme Court.

This leaves us all in a moral dilemma. I personally believe that Erap was guilty of Plunder, but I also believe Davide and Reyes and GMA are guilty of Dereliction of Duty to a treasonous and Constitution-annihilating degree. All of them violated their sacred oaths.

How can a case such as this be decided in which the President Joseph Estrada basically accused the Supreme Court Chief Justice, the Chief of Staff of the Armed Forces and the Vice President of the Philippines of ovethrowing him on 20 January 2001, and the passage of time only seems to confirm with greater clarity the truth of that accusation?

I think it lies in the concept of TRIAL BY DEMOCRATIC ELECTION.

Where after all does the Supreme Court or any branch of government get its power? What is the source of the spring but the People's will and sovereignty?

I think Joseph Estrada should run for the Senate of the Philippines and let the people decide a case that the last six years have only proven, cannot be tried fairly and impartially, or brought to any kind of morally satisfying conclusion, by the Supreme Court. And yes, Davide, Reyes and GMA also need to be brought before the bar of the Constitution and the people that gives it vitality and power.

Davide's Restoration of Zion -- A Historic Dereliction of Duty

Six years ago today, on Saturday, 20 January 2001, the Philippines experienced a People Power-initiated regime change when the Supreme Court Chief Justice Hilario G. Davide, Jr. suddenly appeared before a Catholic Church shrine to Mama Mary along Epifanio de los Santos Avenue (EDSA) in Quezon City, wearing the official robes of his high office, and swore in then Vice President Gloria Macapagal Arroyo as President.

On this Sixth Anniversary of Edsa II People Power, I can think of no better commemoration than the following excerpt from a speech delivered by former Chief Justice Artemio Panganiban in January 2002, recalling the historic events in which he played an apparently major role --

SAVING THE CONSTITUTIONAL SYSTEM
by Justice Artemio V. Panganiban
Address at University of Santo Tomas Central Seminary
UST Martyrs` Hall, February 19, 2002

Let me now briefly recall the events of January 16 - 20, 2001. As all of us know, EDSA 2 was sparked by the 11-10 vote of the Senate Impeachment Court, which had refused to open the so-called second envelope that was supposed to contain damning evidence linking then President Joseph excruciate Estrada to the multimillion "Jose blared" deposit in Equitable-PC Bank.

The massive, chanting, demanding throng at the EDSA Shrine shook the rafters of the government. In no time, Cabinet members and other high government officials resigned and joined the call for President Estrada`s resignation. Many religious leaders of all denominations as well as civic, business and professional groups and non-governmental organizations--the so-called "civil society"--repeatedly chorused "Erap, resign." Media--print-radio and TV--were united in asking him to step down.

On the afternoon of Friday, January 19, 2001, all the heads of the major commands of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) withdrew their support from President Estrada and pledged their allegiance to then Vice President Gloria Macapagal-Arroyo (GMA). From that point on, it became clear to me that President Estrada could not effectively govern the country, but that Vice President Arroyo could not legally lead it either. In other words, from that fateful afternoon, there was no effectively functioning government in the country.

I was aghast at the situation and could not rest during the evening of January 19. I must have fallen asleep about 1:00 a.m. Upon waking up at 4:00 a.m. on January 20, I immediately switched on our bedroom TV. An EDSA panel was being interviewed. The media host announced that Cardinal Sin, through Msgr. Socrates Villegas, was pleading with the EDSA rallyists not to march towards Mendiola, where the pro-Erap partisans were encamped. Fr. Robert Reyes, a panelist, unequivocally supported the Cardinal's call. But the leaders of the militant groups announced they were proceeding to Mendiola at 6:00 a.m., unless President Estrada resigned by then.

The Grim Scenario

I was worried that if the two groups clashed, there would be violence and bloodshed, especially if the EDSA militants made good their vow to storm the presidential residence. President Estrada could not stop them because the government machinery had broken down. The military and the police would not obey him. Neither could Mrs. Arroyo take over the reigns of government, as there was--at least, theoretically--a legally recognized President. If Mrs. Arroyo acted, she would be unconstitutionally usurping presidential prerogatives. Indeed, she would be installing a revolutionary government. ON the other hand, military adventures could mount a coup d'etat and rule by force. In either case, the Constitution would be obliterated and all constitutional offices including the Presidency and the Supreme Court would be abolished. Surely, the fragile economy would collapse and the nation thrown into civil strife.

I prayed and reflected upon this grim scenario. I concluded that the only way to avert violence, chaos and bloodshed, and to save our democratic system from collapse was to have Mrs. Arroyo sworn in as President. After prayer and reflection, I summoned the courage to call up Chief Justice Hilario G. Davide Jr. about 5:30 a.m. to explain to him my apprehensions. I proposed that, to save the Constitution, he should swear in GMA by 12:00 noon of that day.

The Chief Justice`s Response

In normal times, the Supreme Court and its members are passive government officials who act only when a proper petition or request is filed. I thought, however, that the scenario at that point was not normal. Far from it. In fact, the country was faced with an extraordinary situation that demanded an extraordinary solution. Only one state institution, the Supreme Court, had the credibility and the moral authority to avert a governmental catastrophe. And there was only one person who could steer the country from armed confrontation and upheaval: Chief Justice Davide. His outstanding performance as presiding officer of the impeachment court made him--per a scientific poll survey--the most trusted Filipino.

To my delight, Chief Justice Davide immediately agreed to my proposal. He asked me to announce over radio and television his intention to administer the presidential oath to the then Vice President.

When a justice heard the announcement, he telephoned the Court questioning the proposal. So, the Chief justice decided to call immediately all the members of the Court to an emergency session. After an animated discussion on the various constitutional aspects of the situation, all twelve justices present--three were out of town--eventually backed the announced swearing in, provided GMA submitted a formal written request for it. They even went to the EDSA Shrine to witness the oath-taking ceremony.

Indeed, here IS that "formal written request for it" -- "it" being the Presidency itself!

On Saturday morning, 20 January 2001, time-stamped 11:26 a.m. and part of the permanent record, the following fax transmission was officially received at the Philippine Supreme Court from the Office of the Vice President, Gloria Macapagal Arroyo, addressed to the Supreme Court attention the Chief Justice, Hilario G. Davide, Jr.

20 January 2001
THE HONORABLE SUPREME COURT
Supreme Court Building
Padre Faura Street, Ermita, Manila

Attention: Honorable Hilario G. Davide, Jr.
Chief Justice

Your Honors:

The undersigned respectfully informs the Honorable Court that Joseph Ejercito Estrada, is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term. Almost all of his Cabinet members have resigned and the Armed Forces of the Philippines and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil Society has likewise refused to recognize him as President.

In view of this, I am assuming the position of President of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the Republic of the Philippines before the Honorable Chief Justice Hilario G. Davide, Jr., today, 20 January 2001, at 12:00 noon, at the EDSA Shrine, Quezon City, Metro Manila.

May I have the honor to invite all the members of the Honorable Court to attend the oath-taking.

---

History records that by 12:30 of that same day, less than an hour after receiving above fax, Davide had sworn in GMA, who first denied to the Press, then admitted having sent the above. But the overthrow was a fait accompli, largely because it looked for all the world like the swearing in had the blessings and authority of the Supreme Court.

Unfortunately for the principals of those infamous events and decisions, the passage of time only increases the clarity of their dereliction of duty and gross violations of the Constitution's explicit provisions governing the accountability of public officials and the terms of Presidential succession.

By a single stroke, the weakest branch of government had broken the very trunk of it, by unconstitutionally deposing the democratically elected, but tragically flawed, President Joseph Estrada, whose term began in 1998 and should have run until 2004. Unless he died; resigned; was impeached and convicted; or became permanently incapacitated before June 30, 2004, Joseph Estrada should have been President of the Philippines. As pointed out in yesterday's post, none of these conditions applied to Erap at the moment that Davide swore GMA into office six years ago.

Upon receiving the above fax from the Vice President, the Constitution clearly requires of the Supreme Court that it verify and certify the claim that the President is permanently incapacitated or disabled. Just as if he had died, a medico-legal certificate must be presented attesting to the veracity of the claim that the President was then permanently a vegetable or alive but irremediably unconscious. A majority of the Cabinet must concur in such certification. Instead the Supreme Court justices engaged in "an animated discussion" of the faxed in claim, for what, half an hour? Then they awarded the Presidency to GMA!

"TO PREVENT VIOLENCE" has become the cutest politically correct rationalization for Davide's peremptory swearing in of GMA on 20 January 2001. Yet any number of other actions by Davide could easily have calmed the passions and "prevented" any purportedly impending violent events. For example, why did he not simply reconvene the ongoing Senate Impeachment Trial of Erap? Why did he not call back the Prosecutors of Joker Arroyo, reminding them of their sworn duty to the Congress to undertake such prosecution at trial? Why did Davide HAVE to swear in GMA? There was no such case before him but the impeachment trial. Thus, I can only conclude that "to prevent violence" was an afterthought or post-facto justification first enunciated by Art Panganiban and popularized by the Press which lionized both him, Hilario Davide and the Supreme Court, and Cardinal Sin. But this only proves that the road to hell is paved with good intentions! For look, Erap is not finished, and we have had plenty of violence since his overthrow. Besides, public peace and order are hardly the principal duties of the Chief Justice of the Supreme Court!

OLDIE BUT GOODIE: Time Magazine's Anthony Spaeth covering the day when it all began: 20 January 2001.

Not Even The End Can Justify People Power As A Means

MANUEL L. QUEZON III undertakes a futile search in his PDI column today titled, "We saw the alternative" (which silently continues, "and we still don't like it!") as he considers the evolving tableu of the 2007 Midterm Elections. But as long Joseph Estrada and Gloria Macapagal Arroyo are still around, people who want to save Edsa-style People Power ideologically, are forced into a bad choice. They cannot at the same time get rid of its most brilliant practitioner and beneficiary, without potentially resurrecting someone they destabilized from Day One and helped to overthrow six years ago. The problem is that the defenders of Edsa Dos and "peaceful" People Power still defend the means used to end Erap as Constitutional, morally righteous or at worst, necessary to "prevent violence." The insistence that People Power is inherently peaceful, despite the devastation of the Constitution wrought by Edsa II and the contrary evidence of Edsa III, is the consequence of an obsession with the People Power notion itself, which required a judicial putsch in order to keep it from turning inexorably violent.

Of course, Joseph Estrada is still alive -- both physically and politically -- because what actually happened to him on Saturday, 20 Juanuary 2001, six years ago this weekend, also happened to the Philippine Constitution and to republican democracy itself -- they were overthrown at Edsa Dos by the Chief Justice himself, in the most simple, but lethal act of swearing in the Vice President without DUE PROCESS. It was a judicial putsch, plain and simple. Davide, our Judicial Emperor, has no clothes, and yet, has been appointed to be our permanent representative to the United Nations.

Before proceeding to Manolo's core concern for an alternative, let me correct his statement that there are only four ways under the 1987 Constitution for a Presidential succession to occur. There are in fact five and exactly five conditions in the 1987 Philippine Constitution, under any of which, the Presidency ends and the next one begins--

(1) The President dies.
(2) The President resigns.
(3) The President is impeached by the House of Representatives, convicted by the Senate.
(4) The President becomes permanently incapacitated.
(5) The President's term in office expires.

This list is complete and exhaustive and guarantees that the country is never without a Chief Executive. One of these conditions MUST exist, as specified explicitly by provisions of the Constitution, for a new President to assume office. Yet History will note that on Saturday, 20 January 2001, NONE of these five conditions applied to Joseph Estrada. Not one! None.

The passage of time only establishes the facts with greater clarity. That on that day, the Chief Justice of the Supreme Court, Hilario G. Davide, Jr., mysteriously and inexplicably appeared before a religious shrine in front of a shopping mall along Epifanio de los Santos Avenue (EDSA), and suddenly swore in the Vice President, Gloria Macapagal Arroyo, as the acting President, before "a Hooting Throng" that TIME Magazine called Mob Rule. Yet, at the moment Davide administered the oath to Gloria Macapagal Arroyo, shortly after noon on that day six years ago this Saturday, then President Joseph Estrada (1) had not died; (2) Erap had not resigned; (3) Erap had been impeached by the House but was never convicted as his Senate Trial was ongoing, though the Prosecution walkout had precipitated the massive demonstrations; (4) Erap may have been 'incapacitated' on that day out of personal vice and lifelong habit, but not in the manner specified by the Constitution; (5) Erap's six year term had over three years to go, and was allegedly completed by GMA in 2004, allowing her to run for her own six year term.

How did such a Presidential succession occur and yet be deemed "Constitutional throughout"? Well, there is that curious and curiouser innovation of a CONSTRUCTIVE RESIGNATION conjured up from newspaper articles and contructed from the hurriedly scribbled notes of a young Angara acolyte in the last breathless days of Erap in the Palace-by-the-Pasig, down which he was later forced to retreat, like a crocodile his carpers cried, to Greenhills and his present state of suspended incarceration. There is also that contribution of the Davide Court to the genre of Orwellian judicial euphemism--WITHDRAWAL OF SUPPORT--applied to the actions of then Armed Forces Chief of Staff Angelo T. Reyes, whose self-declared mutiny is really one for the books, and has become a spot ad and sound bite on ABSCBN News ANC, with Pia Hontiveros declaring that in the case of Edsa Dos, we should call a spade a spade.

Perhaps the most illuminating alternative way of looking at Edsa Dos is by concentrating on the acts of the Chief Justice Hilario Davide and Chief of Staff Angelo Reyes, and asking, did they do their duty? What, for example, was the AFPCOS doing at the big anti-Erap demonstration at the Edsa Shrine on Friday, 19 January 2001, along with all the major Service Commanders? Mutiny is what Gen. Reyes himself had gingerly called it. But the Supreme Court two months later called it "withdrawal of support". And on the very next day, Saturday, 20 January 2001, what was the Chief Justice's official or unofficial business in what was undeniably "a partisan political activity?" What case or cause brought him to Edsa? Whatever happened to the cold neutrality of an impartial Judge? Was Davide not at that moment still the Presiding Judge of a Senate Impeachment Trial of the President? What in the world was he doing at a swearing in??
What justiciable case or cause of action was before Davide as Chief Justice of the Supreme Court, that would cause him to appear there at that moment to create a Presidential Regime Change by the singular act of swearing in the Vice President? What Resolution or Decision or Order of the Supreme Court caused him to violate the plain, direct and incontrovertible provisions of the Constitution that govern Presidential successions? In other words, did the Chief Justice of the Supreme Court do what he was supposed to do? Why did he not reconvene the Senate Impeachment Trial of Joseph Estrada? How could the Supreme Court believe that Erap was permanently incapacitated but not undertake all the required verifications of the faxed-in claim of the Vice President, which had arrived at Davide's Padre Faura offices at 11:26 am of that very same Saturday? How could Davide and the Supreme Court Justices--convened in a "rump session" of the Supreme Court, for there was no properly processed case before them that day)--how could they have decided the Presidency in such an illegal and wrongful manner. Justice hurried was justice buried!

If one accepts the Supreme Court's decisions of two months later, in Estrada v. Arroyo, that Chief Justice Davide (who did not participate in that case) was not culpable of any crime, that he did everything the Constitution required during those events, along with AFP Chief of Staff Angelo Reyes, and Vice President Gloria Macapagal Arroyo, then one accepts the Fairy Tale of Edsa Dos that what happened was "Constitutional throughout." What a laugh! Even the freshmen law students have been scratching their heads for six years!

I have no doubt that it will be the ineluctable verdict of History that Edsa Dos was a major anomaly for Constitutional Democracy in the Philippines, whose final resolution is not even within sight. The problem is one, Joseph Estrada. His plunder case is in suspended animation because of the tacit agreement of both sides that in fact, his case cannot be tried by the Supreme Court. Indeed, I believe, along with lawyer Alan Paguia, that Erap has lost the presumption of innocence because he was denied DUE PROCESS at Edsa Dos, and has been prejudiced by the decisions in March and April 2001 which absolved all others involved, like Davide, Reyes and Macapagal Arroyo. In effect, a valid trial of Joseph Estrada cannot be held because he accuses the Davide Supreme Court itself of having overthrown him illegally, an accusation that only grows in credibility with the passage of time and clarity with which people now see those historic events. It is to the advantage of the Palace to maintain this status quo however, because it knows that the critical "Middle Forces" can always be relied upon to stay with her if the alternative is Joseph Estrada.

Previous posts on this topic include The Real Coup d'etat with links to many more.

Twink Macaraeg's ANC televised debate on People Power last Wednesday night featured the noteworthy arguments of Ms. Antoinette Quiogue about how People Power weakens Philippine democratic institutions. It encourages me that the long road to setting History right on People Power and Edsa Dos is worth traveling upon, no less for the scintillating intellectual company.

Has Daniel Smith Lost The Presumption of Innocence?

MANY PEOPLE SEEM TO THINK SO, at least ever since Makati Regional Trial Court Judge Benjamin Pozon decided that U.S. Marine Lance Corporal Daniel Smith was "guilty of rape beyond a reasonable doubt" last December 4, 2006, whilst acquitting three other US military personnel charged with conspiracy to commit the same crime on November 1, 2005 in Subic Bay, Zambales.

BUT THEY WOULD BE WRONG -- for in every moral and legal sense, Daniel Smith has most certainly NOT lost the "Presumption of Innocence" at this stage in the Philippine Judicial Proceedings against him. The 1987 Bill of Rights in the Philippine Constitution states--

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

EVEN IF THE RTC has already rendered its verdict through Judge Pozon, this is only the first of three Verdicts of Guilt required for a final and executory Sentence of Conviction. The Trial Court's verdict must be concurred in by both the Court of Appeals and the Supreme Court by verdicts requiring the same quantum of evidence and moral certainty and with greater powers of collegial discernment and deliberation than even at the level of the trial judge. But the common and substantial point of each judicial proceeding--at RTC, CA and SC--is to determine if the Prosecution has testimony and evidence to establish guilt beyond a reasonable doubt. Inasmuch as a Decision of the judiciary becomes a part of the law of the land, this proceedure is very similar in spirit and substance as the manner by which a bill becomes a law with the concurrence of both Houses of the Congress. Likewise, every sentence of conviction must be concurred in by the three Courts of the Judiciary-- the RTC, the CA and the SC.

NO JURY SYSTEM IN THE PHILIPPINES In a concrete way, the accused's right to be presumed innocent is manifested by the fact that the burden of proving guilt beyond a reasonable doubt rests with the Prosecution. Perhaps because there is no jury system in place, and the fate of the criminally accused rests in the hands of appointed Judges, such burden of proof never shifts from the Prosecution to the Defense in all Philippine criminal proceedings. Thus, a final and executory sentence of conviction in a capital case requires three successive verdicts of "Guilty beyond a reasonable doubt" by the Regional Trial Court (RTC), the Court of Appeals and the Supreme Court.

THE DEFINITIVE CASE AND PONENCIA on the Presumption of Innocence in the Philippine jurisdiction is said to be that of Associate Justice Enrique M. Fernando, in People v. Dramayo (42 SCRA 59) --

"It is to be admitted that the starting point is the presumption of innocence. So it must be, according to the Constitution. That is a right safeguarded both appellants. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by person on trial under such an exacting test could sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty. So is has been held from the 1903 decision of United States v. Reyes. United States v. Lasada decided in 1910, yields this excert: 'By reasonable doubt is not meant that which of possibility may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the offense.'

The United States Constitution contains features in its Bill of Rights that are alien to the experience of Filipinos in the Archipelago, but which are taken for granted by U.S. citizens. Noteworthy among these is "trial by a jury of one's peers" and some others...

Fifth Amendment - Trial and Punishment, Compensation for Takings. Ratified December 15, 1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment - Right to Speedy Trial, Confrontation of Witnesses. Ratified December 15, 1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Trial by Jury is not used in the Philippine jurisdiction. Instead the fate of criminally accused persons rests in the hands of unelected Judges, who conduct trials much as US Courts do, but minus the Jury. Thus, US Marine Lance Corporal Daniel Smith has been found guilty of rape by Judge Benjamin Pozon of the Makati Regional Trial Court (RTC); if affirmed by the Court of Appeals and the Supreme Court, this verdict will become a final and executory "Sentence of Conviction" carrying with it the punishment of life imprisonment (reclusion perpetua).

Under the Visiting Forces Agreement the US Government clearly "surrenders" the normal Constitutional rights of American citizens accused of crimes in the Philippines and agrees that they be tried under Philippine Law. The US recognizes Philippine jurisdiction over such cases, but maintains custody of its personnel until completion of all judicial proceedings under this agreement.

VFA Section 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged in extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures are delayed because United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.

It is of course easy to ignore the fact that in signing the VFA the United States explicitly recognizes Philippine jurisdiction, to the extent that even the Constitutional right to a JURY trial of its citizens serving under the VFA is apparently surrendered. Such was the case with Daniel Smith, yet we do not have American nationalists tearing their garments crying out for the loss or insult to American sovereignty. In other words, it is most inaccurate to portray the VFA as "one-sided". There is clearly a give and take on these matters.

Isagani Cruz sounds a lot like Renato Constantino in Surrender of Sovereignty -- a column article that could be a classic in the growing genre of victimhood-liberation writings spawned by the Subic Bay Rape Case. Early dominated by clever Lynch Mob instigators like Rina Jimenez David and Conrado de Quiros, the field is being discovered by a broad spectrum of pundits, like blawgers, Rachel Khan and Marichu Lambino, who are producing rich variations on several themes. But here is Isagani Cruz's rendition--

"As regards the question of whether an international agreement may be invalidated by the courts, suffice it to say that the Constitution authorizes the nullification of a treaty not only when it conflicts with the Constitution but also when it runs counter to an act of Congress.”

If the question had been raised, or if raised had been considered by the Court of Appeals, it would have had to follow the above decisions of the Supreme Court. Consequently, it would have upheld the position taken by Judge Pozon in retaining Smith in the custody of Philippine authorities as required by our own laws. That would have honored and enforced our sovereignty, without more.

There would then have been no necessity for the extended opinion written by Justice Apolonio D. Bruselas Jr. that, as it turned out, was all wasted effort because he said in the end that the petition did not have to be decided for having become moot. He had struck mightily with his right arm but surrendered meekly with his left.

The ponencia had been reduced to an academic lesson on how to interpret the law correctly but without antagonizing President Arroyo and her American superiors."

How disingenuous of a former Justice of the Supreme Court now newspaper pundit, Isagani Cruz, not to mention the famous case of Bayan v. Zamora in which the Supreme Court already dealt with the Constitutionality of the Visiting Forces Agreement, affirming the President's ratification of the VFA and the concurrence of the Senate. There is no confusion in the Supreme Court's historic decision on the Constitutionality of the VFA, and no matter how Isagani Cruz and others like him try, they cannot raise even the shadow of a doubt in the minds of Filipinos and Americans of the mutual interest and benefit derived therefrom. Even Nicole herself has to agree that were it not for the Visiting Forces Agreement, her case would probably be in the same state as the estimated 3,000 other Pinays raped by Pinoys since 1 November 2005 -- nowhere.