Thursday, January 18, 2007

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.


manuelbuencamino said...

I think Gloria's big error was in not declaring a revolutionary government right after she grabbed power.

She tried to legitimize her coup by making it appear that what she did was within the cinstitution but as you ponted out she did not meet any of the 5 constitutioal requirements.

Meeting those requirements must be patent, and obvious, easily seen, by any man in the street for any of it to be accepted without question which is what political legitimacy is all about. Gloria legitimized herself through legal acrobatics and that's where her legitinacy problem arose.

People power is the right of the people to exercise their sovereign will. Whether or not people power is really a true reflection of the people's will is always debatable as there will always be loyalists from the overthrown regime who will claim otherwise. Cory Aquino, whose legitimacy, was always questioned by Marcos loyalists did the right thing. She declared a revolutionary government, reqrote the constitution and then had it ratified credibly. Thus she avoided all the questions and problems Gloria suffered.

Cory had the guts to stand by her actions and to put herself on the line by swearing herself in as head of a revolutionary government. Gloria is a coward who chose to hide behind the Davide courts skirts,.

manuelbuencamino said...


Sorry for posting this here but I can't get in to yesterday's comment box anymore.

Anyway, this is just to make ckear, in my own words, not yours, exactly what I was getting at.

Rizalist said...
“Every capital crime must be tried in an RTC, affirmed by the CA and automatically reviewed by the Supreme Court. No appeal is required.”

This is a wise EXCEPTION and I know about it. But you didn’t answer me. Do you believe EVERY RTC conviction should be automatically reviewed by higher courts?
Why do you think an EXCEPTION rather than a RULE was made?

“The conviction by RTC is not final and executory, so it is wrong to say it stands "until" because the right statement is, it does not stand UNLESS concurrence is given.”

“Until” is also correct because it refers to the waiting period IFan appeal was filed.

“I think every intelligent Filipino owes it to himself to understand this question, because it applies not only to Daniel Smith, but to every criminally accused person, like our friend, Ellen Tordesillas, or Ricky Carandang, should they be found guilty of libel.”

If Ricky and Ellen don’t appeal, they will be guilty as charged. In short their conviction by an RTC court will beFINAL AND EXECUTORY. Thus our system recognizes that an RTC verdict can be questioned but is not necessarily questionable.

“It is a basic matter of Civics 101 though for this very fundamental principle to be more commonly understood. Our justice system would not make sense to me any more if we saw the Appeals process as some kind of afterthought to tidy up some small details or formalities.”

The appeals process, as Civics 101 taught you, is not an afterthought. It is a recognition that mistakes can be made so a convict should be given every chance to prove there were mistakes made.

“But ask yourself this, why is it that there are progressively more Judges involved at each stage, (5 in the CA, 15 in the SC), studying, deliberating and deciding the case, usually for a far longer time than the trial?”

Because there are more appeals.

Now that’s not the same as saying there should be an AUTOMATIC REVIEW of all RTC convictions

“I think it has something to do with the principle that we would rather a hundred guilty men go scot free than a single innocent man suffer unjustly!”

Yes, i agree with that principle that’s why I say everybody should have the right to appeal.

But that principle should not be understood to mean that we should question every RTC conviction that's not appealed and overturned. It's not the same as saying that RTC convictions must first be affirmed by two higher courts.

“And so, the life imprisonment of a man ought not to be in the hands of Pozon alone! And it surely is not!”

I said in my previous comment, let’s wait for the appeals to end. BUT LET’S ALSO GIVE THE RTC DUE RESPECT.

1:07 AM, January 18, 2007  
Rizalist said...

“The more one thinks about it, the more absurd it is to think that the guilt of the accused is decided SOLELY by the Trial Judge, that his decision must be "overturned" and not "affirmed". In the CA, there has to be a vote of three judges for the RTC verdict to be affirmed, not just one judge. And in the Supreme Court, that august collegial body of justices must concur in the RTC and CA rulings in ALL their details. How can Pozon's "decision" outweight them all?? Why all the bother if it did?”

I never said it stands SOLELY on the trial judge’s decision. I have always said, the verdict stands until and unless it is overturned on appeal. I RECOGNIZE, RESPECT, AND VALUE THE APPEALS PROCESS.

You refuse to grant the same to the RTC. You insist that the RTC is only like a first pitch. It is... when and if there is an appeal. It is not when the convict does not file an appeal. Like I said, IF THERE IS NO APPEAL THEN THE VERDICT STANDS AS IS.

Now think more about your theory of concurrence or affirmation.

Would you propose an AUTOMATIC REVIEW of ALL convictions?

I would.

The problem however is to how to do it so that both the accused and the aggrieved can get justice without justice being delayed.

Figuring that out is a more worthwhile endeavor than trying to discredit Pozon whose judgment stands UNLESS overturned by a higher court.

Rizalist said...

MB--I am willing to grant you the fine distinctions between UNTIL and UNLESS. However, in the case of capital crimes like rape and murder, even if there is no appeal, the Supreme Court automatically reviews the lower court's decisions. My reading of People vs. Dramayo, as well as the standards texts of J. Enrique Fernando (who was ponente in that case) inform me that when the Supreme Court undertakes such automatic review, it nonetheless must convince itself to a moral certainty, that the quantum of evidence implied by proof beyond a reasonable doubt be in existence, INDEPENDENT of any Defense offered by the accused, whether on trial or on appeal! In other words, even IF there is no Defense offered, the Court must still find guilt beyond a reasonable doubt based solely on the Prosecution's evidence.

That is how strong the right we have been discussing really is: the right to be presumed innocent means that if you are accused and you remain completely silent, THAT by itself is not proof beyond a reasonable doubt that you are guilty of the accusation! The Court still has to convince itself of your guilt "with moral certainty" independently of your silence!

So sayeth Fernando.

Automatic review is not appropriate in all cases, but I must say, even when there is no formal review, the Judiciary acts as a single body. It's just like the House and Senate act as single bodies, even when some division of them, like a Committee acts for the whole.

So in a sense there IS automatic affirmation of lower Court decisions in the INACTION of the Higher Court, but that doesn't mean we can call the final decision in even the most insignificant case, any thing other than an Act of the Judiciary?

I must reaffirm though the transcendental importance of all intelligent Filipinos likewise achieving a moral certainty about their understandings of how the Justice System really is supposed to work.

Because one day, the shoe will be on the other foot!~

Bernardo F. Ronquillo said...

EDSA Uno was spontaneous and was an act of God for the good of the people but EDSA Dos was contrived and was a act of dubious men with dubious selfish agenda, most of whom repented for what they have done and are now trying to undo what they have done.

EDSA Tres began spontaneously and was ended violently. They are still seeking justice up to now.

Gloria began illegally and got away with it and because of this she has been circumventing the law without fear that anybody CAN do anything about it. And gleefully, her men Bunye, ERmita, and Gonzales are cloning her. Will they get their comuppance? No, not unless millions of people come up against them and throw them out. But this takes courage and collectively throwing caution to the wind.

engineerOFW said...

I wish I have Bernardo R's secret.... I can form my own religion if I can distinguish which events are "..acts of God for the good of the people" and which are acts of men? But wait... Bernardo R's secret is not necessary to create a sect.

What I do know is that I will be laughing my head off hysterically if, down the road, one of the people who today encourages the Philippine Armed Forces to overthrow GMA and pleads for hordes of people to storm Malacanang, later becomes president and swears "to uphold the Constitution".