Monday, November 17, 2008

Whose Grave Abuse of Discretion Was It?

In the landmark case North Cotabato v. GRP the Supreme Court of the Republic of the Philippines (SCoRP) ruled that the Presidential Adviser on the Peace Process had committed grave abuse of discretion in the design and crafting, negotiation and settlement of the GRP MILF MOA AD. But three different persons have held that position in the time since the 2001 Tripoli Agreement included Ancestral Domain as a main strand of peace negotiations: Ging Deles, Jess Dureza and Hermogenes Esperon. But SCoRP in 1999 already defined the elements of GRAVE abuse of discretion (arbitrariness, despotism, etc).
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence.
Scheduled to sign for the Philippines at Putrajaya, Malaysia on August 5, 2008 was the Presidential Adviser on the Peace Process, Gen. Hermogenes Esperon, who had just assumed the post after retiring from the Armed Forces as Chief of Staff on May 9, 2008. He took over from Press Secretary Jess Dureza who was PAPP since Ging Deles resigned in 2005 over

Although it was Esperon who was clearly in the position of PAPP when the Supreme Court promulgated its Decision on the MOA-AD last month, he was not that before the middle of May this year and the MOA-AD has been years in the making. Surely the Supreme Court did not literally mean that the person Jun Esperon, retired Garci Tapes general and former Chief of Staff of AFP was himself responsible for the "furtive nature by which the MOA-AD was designed and crafted."

With the design and crafting of the MOA-AD it is certain Hermogenes Esperon had little to do. He could not have evaded or refused any duty enjoined with respect to the MOA-AD because he, Jun Esperon was busy running the AFP and did not have Dureza's job before May this year, whereas the MOA-AD is part and parcel of the wider peace process under the 2001 GRP-MILF Tripoli Agreement and has been in process since

The only reasonable and logical reading of North Cotabato v. GRP's summary disposative section therefore means that where the Supreme Court refers to the "Presidential Adviser on the Peace Process" in that section, they do not actually refer to Jun Esperon, the present but very recent occupant of that position.

If not Hermogenes Esperon could they be referring then to Jess Dureza, who was its long-time, previous occupant? I am tempted to say yes, since it cannot have escaped the High Court's notice that Jess Dureza was the PAPP for most the relevant period leading up to August 5.

But then again, Jess Dureza only took over over from Ging Deles in 2005, when she resigned over the Garci Scandal. Yet negotiations with the MILF and the development of the three strands (Security, Rehabilitation and Ancestral Domain) had been ongoing since 2001, when Ms. Deles would have been principally in charge as PAPP under President Arroyo.

So, did the Supreme Court mean Ging Deles? Jess Dureza? Hermogenes Esperon? -- when it referred to the PAPP as having committed grave abuse of discretion amounting to lack of or an excess of jurisdiction in designing, crafting, negotiating and attempting to sign the MOA-AD?

REGARDING GRAVE ABUSE OF DISCRETION, the Supreme Court ruled in 1999:
In a special action for certiorari, the burden is on petitioner to prove not merely reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent. "By grave abuse of discretion is meant capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."
Thus the difference between MERE abuse of discretion and GRAVE abuse of discretion apparently lies in at least two distinguishing attributes of ARBITRARINESS and DESPOTISM.

Yet, is it plausible to assign these attributes to the persons Esperon, Dureza and Deles? Considering that on the matter of the peace process all of them seemed to take strict orders from the President, none of them can hardly be accused of acting in an arbitrary manner -- not with the micromanager of a Boss they had. Likewise, whatever despotism the Court perceives in the actions of the PAPP, it has to be flowing from some truly despotic source that is definitely higher than the Springs of Deles, Dureza and Esperon. Moreover, if these three were furtive in the design, crafting, negotiation and settlement of the Ancestral Domain deal, that powerful spell of Omerta they seem to have been under could only have been cast on them by the Capo di tutti capi.

If not Deles, Dureza and/or Esperon, then who has committed a grave abuse of discretion? There is a very important clue in the part of the Decision where the Court rejects the respondent's claims that the issues surrounding the Ancestral Domain MOA:
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the “moot and academic” principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.
Neither Ging Deles nor Jess Dureza, not even Jun Esperon--of their own free will and volition--are capable of causing a repetition of the crafting, designing and settlment of a MOA on Ancestral Domain with the MILF.

On every substantive point, it would be wilfull halucination to claim that anyone but the President was guilty of more than a mere abuse of discretion.

Only President Gloria Macapagal Arroyo, in the full exercise of her discretion as Chief Executive has the power and the personality to be arbitrary, despotic, evasive of review and capable of doing it again. It was HER discretion that was gravely abused. But the acts of her underlings ought not to be blamed on them entirely. If anything they were only guilty of MERE abuse of discretion, but the GRAVE abuse belongs entirely to her.


Anonymous said...

Another one to add to the many many sins of PGMA. As the Americans say, "same shit, different day."

AdB said...

Great post, Dean.

Agree en toto!