How Erap Can Become President Again

I now seriously doubt that Joseph Estrada could file his candidacy for President of the Republic in the May 2010 elections, and survive the certain challenge in the Supreme Court (SCoRP)to disqualify him  based on the 1987 prohibition against any re-election to the Presidency.   By then, all the sitting justices will have been appointed by Gloria, too.

But there is no prohibition against Erap running for the Vice Presidency in 2010, which he would surely win by a huge landslide. And his Long Coattails could easily sweep whoever his running mate might be into the Presidency.  Said Running Mate could then validly resign (or *wink* send a fax to the Supreme Court declaring himself or herself "permanently disabled" and inviting the Honorable Supreme Court to administer the Oath of Office to the Vice President, say in front of the Edsa Shrine?).

An important ingredient of this idea is that the presidential ticket would also bring to power a political party to control the House and Senate for a series of impeachments and trials, investigations and prosecutions of errant government officials under the Arroyo administration.   The Ombudsman would have to be impeached since her term does not end in 2010, in order to straighten out the graft and corruption cases, from JocJoc to Mike Arroyo to DOJ. Everybody!

The 1987 Constitution declares

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Clearly, not ALL of the judicial power is invested in the Supreme Court, since the Congress can apparently establish lower courts which would share such power. Indeed the Congress can even abolish any lower court than the Supreme Court.

Observe that in this case the Judicial Power is being shared by the Supreme Court and the Congress.  That is not unusual under our system of Separation of Powers, which might be more illuminative if it were termed "Sharing of Powers"!  Consider further that the Legislative power is also shared by the Congress and SCoRP since the decisions of the courts become a "part of the Law of the Land."

Of course SCoRP gets the lion share of the judicial power and its jurisdiction over civil and criminal cases is unmatched by any other department of the government. Except in one very special category of legal cases involving the highest officials of the land, including the honorable Justices of the SCoRP itself.  

I am referring to all CASES of IMPEACHMENT  of the exactly 31 impeachable officers of the Republic, the so-called "Constitutional Officers": 

15 Supreme Court justices; 

7 Comelec Commissioners; 

3 Commissioners on Audit; 

3 Commissioners of the Civil Service; 

President, 

Vice President and 

Ombudsman (now na!)

In a stunning display of how Separation of Powers works, consider that all cases of impeachment under the 1987 Constitution, from beginning to end, are entirely under the jurisdiction of the Congress.

Article XI Accountability of Public Officers.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.
...
(6) The Senate shall have the sole power to try and decide all cases of impeachment.

These categorical provisions covering all cases of impeachment are not controversial. They mean that the verdict of the Senate Impeachment Court in all cases of impeachment is final and executory. It may not be appealed to the SCoRP or reversed, amended, or diddled with in any way by SCoRP.

For in all cases of impeachment, the "supreme court" is not SCoRP but the Senate of the Republic of the Philippines.

This may seem to be a totally academic point. And of course it is.  Except for one thing. Edsa Dos and what happened there.  Remember that all of that folderol happened in the middle of the biggest Case of Impeachment ever in Philippine History: the trial of then President Joseph Estrada at the Philippine Senate. 

This blog has been all over the ground that covers Edsa Dos.  But in this post I simply want to make the point, that the roots of today's seemingly dysfunctional  and cuckolded Senate suck deep waters from what happened at Edsa Dos, and bears everyone's careful consideration as we approach the point at which Gloria Macapagal Arroyo and her avaricious gang of bloodsuckers are gonna have to let go of the Teats. 

The only deserving Next President is whoever understands what happened and has the moral authority to investigate, prosecute, and punish the craven vampires that have bled us dry for eight long years, robbed us blind, brought us to the brink of partition, and feasted on moneys both domestic and foreign through bid rigging, bribery, graft and corruption, the works.

Who would that Next President be?  Now of course there would be so much poetic justice in it, that a President Joseph Estrada would make for a very interesting turn of events.  

Since  there is no prohibition against Erap running for Vice President and succeeding to the Presidency should the elected President resign. Erap would become President the same way Gloria did, and from there punish the principal crooks of this administration.

The Greedy Group Wants It All

Tongue in, anew has a massive post on the assault on Meralco launched and directed from Malacanang Palace using Winston Garcia (GSIS) and Presidential son Mikey Arroyo. The title says it all: Meralco vs. the Mafia. The analysis is superb and substantial, from someone who's evidently seen a lot of these things up close and from the inside. Read it all but prepare to be infuriated. 'Tang ina ninyo! indeed. His concluding paragraph:

With the generation, transmission, and now distribution (soon, maybe fuel, too!) under the exclusive control of the same greedy groups and Mafia families, this whole friggin cursed nation of syndicates and ninety million cowards should cease to exist.

I would only add that as this issue moves forward, there is surely going to be a role for the Arroyo-controlled Supreme Court, which will soon be the cause for even greater fury at how the Rule of Law has been replaced by the Rule of Organized Crime masquerading as Government. Artemio V. Panganiban (former Chief Justice turned Innuendo Pundit) is acting the Innocent One in his weekend piece. As if he had nothing to do with the High Court's descent into the nether depths of intellectual dishonesty and dereliction of duty at Edsa Dos--the seminal anomalous event which demolished Constitutional Separation of Powers and laid the foundation via Judicial-Military Coup d'etat for our present Judicial-Executive conjugal dictatorship that now rules with utter impunity in an uncheckable regime of supreme Graft and Corruption.

Update:

New York Times Op/Ed features a piece entitled: Invading Myanmar For Its Own Good

I think many of the arguments apply to invading the Philippines--and not just for its own good but for the Asian region, if not the world! It's leaders are adept at foisting tragedy on their own people...even without the natural disasters, though they know how to when that sort of thing happens too. Will somebody please save us. Honestly this is worse than Burma because we know better and we just don't deserve this Hell. Most Pinoys will surely help! How about it Uncle Sam?

I think the Philippines could easily become so ungovernable and descend into social chaos--say a combination of Somalia and Myanmar--that in its own interest the United States would be forced to take drastic action, much as she would not at all like to, or given her stretched-too-thin military, be unable to! The scenario under which this might happen is easily imaginable with the CPP leadership struggling with its aging kidneys and running out of time, and the Malaysians running out on the increasingly al Qaeda influenced Moro insurgents.

The Fallacious Heart of Neri v. Senate is a False Distinction About the Powers of Legislation and Oversight

Anyone who understands English Grammar and Composition will be able to see very easily the gaping logical flaw in the just announced Supreme Court Decision on executive privilege versus the Power of Inquiry of the Congress.

The main decision and the concurring and dissenting opinions in the landmark case of Romulo Neri versus Senate Committees are here at the Supreme Court Website. From the disposing portion in the main ponencia (Justice Leonardo de Castro), I wish to identify the pure, fallacious heart of this infamous decision as the following passage in GR No. 180643 --

The false distinction in the post title is redbolded below:

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court’s pronouncement in Senate v. Ermita[20] is clear:

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

Hence, this decision.

MY REBUTTAL:
Definition: The Power to Legislate is the power to MAKE NEW LAWS and RE-MAKE OLD LAWS.
Example: The main piece of legislation for which the Congress is responsible is the National Budget, which it MAKES and RE-MAKES every year.

Thesis: Section 21, which mentions Congressional power to conduct "inquiries in aid of legislation" when applied to the National Budget clearly involves two functions of the Congress if it is to successfully enact the budget: (1) it must gather all information for any new items in the budget; and (2) it must perform oversight of administration, by requiring of the Executive Departments a full accounting of how they spent the last budget and why the new budget is justified. Thus Section 21, with all its enforcement processes applies to the UNITARY POWER OF LEGISLATION (to make and remake the laws) which would be frustrated if information is denied it that is necessary (1) to make new laws (inquiry in aid of NEW legislation) OR (2) to REMAKE old laws (oversight so as to remake OLD legislation) If we do not accept this, then the entire OVERSIGHT process called the Budgetary hearings becomes non-compulsory for Executive Dept. officials. Thus I claim, as the US Congressional Oversight Manual itself proclaims, that OVERSIGHT inquiries ARE inquiries in aid of legislation with equal process to enforce as inquiries in aid of new legislation.

Claim: Section 22 is an irrelevant appendix left over from when the 1986 Constitutional Commission almost established a unicameral Parliament requiring the "question hour" therein in mentioned, which question hour has NEVER been conducted by the Congress in 21 years because it is not part of the Republican Presidential system with a bicameral Congress! [Please See Update 1 below. Hat tip: MLQ3) Nothing whatsoever would be affected by completely ignoring it. The Powers of Oversight DO NOT rest in this one provision, but in DOZENS of enumerated provisions detailing the various powers of Congress to extract information of all kinds from the executive, as detailed more clear-headedly in the documents listed below which inspired this whole chain of reasoning at Philippine Commentary and is required reading for all commentators on this important issue.

Having disposed of the PREMISES of the Main Decision in Neri v. Senate, I conclude that the decision is based on a false dichotomization of the Power of Inquiry and is therefore a decision that is morally and logically NULL and VOID. The Congress must ignore it if it is to do its DUTY of making and re-making the laws.

References:

UNITED STATES CONGRESSIONAL OVERSIGHT MANUAL

Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds For a Whistle Blower Protection Law
(A Philippine Commentary that makes the same rebuttal, only longer.)

It only remains to demonstrate that the ZTE NBN deal involves the suppression of evidence in a potential case of impeachment, in which case the SOLE and EXCLUSIVE power to initiate and to decide belongs entirely to the Congress. Although Executive Privilege covers confidential communications of the President and her men, that is only so if REGULARITY of those conversations (along with their candid nature) is unquestioned.

But I have to leave something for tomorrow...hehe!

I am so glad the Supreme IS as shallow as I feared and has no arguments that have not already been considered here at Philippine Commentarty during the last two years of considering this whole matter starting with Senate v. Ermita.

CLICK THE VARIOUS LABELS BELOW FOR MORE ARTICLES rebutting the SCORP's false distinctions on the Powers of Legislation.

UPDATE 1: See MLQ3's comment in the thread about Joker Arroyo's appearance at a Question Hour in the House (1988 or 1989?). Apparently the House Rule XVII covers Question Hours in the Lower House. But I could not find the phrase "Question Hour" in the Rules of the Senate or the Senate Rules on Inquiries in Aid of Legislation. I stand corrected that the Congress has "never" done a Question Hour, since the House has done it at least once.

An important question around which the validity of much in Neri v. Senate depends, is in what sense we might regard the current Senate investigation as being covered by Section 22 Question Hour provision.

UPDATE 2: Let me re-state my formulation of the FALSE DISTINCTION in Neri v. Senate, which states that:

Section 21 relates to the power to conduct inquiries in aid of legislation, its aim is to elicit information that may be used for legislation, while Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

The OBJECTIVES are NOT different, unless we claim that the making of new laws is in any sense different from-- the remaking of old laws. The single unitary objective of both is to gather information necessary for LEGISLATION. If we agree that legislation means making and remaking the laws, then Section 22 truly is superfluous. The further distinction the Supreme Court makes is insipid and equally vacuous: that the Congress has compulsory process only for making laws and not for conducting oversight of administration so it can remake the laws as necessitated by what information it discovers.

Judicial Review is the Wrong Fulcrum to Balance Executive Privilege and Congress Oversight of Administration

Is it conceivable that the Supreme Court must rule on every single controversial question that Congress might want to pose to Executive Branch officials from here till Doomsday? Does it have the power to prevent ANY citizen from going to Congress before the fact, to speak on any matter within the Rules of the House or Senate?
I should say NOT! For that will only mean the complete CUCKOLDING of the Congress that was started by Hilario Davide Jr. in the Edsa 2 coup d'etat and be an historic blow to Freedom of Speech and Public's right to know.

It would be the placing of a bone in the throat of every whistle blower in the government if a full-blown Supreme Court ruling be required whenever some government official--Cabinet minister or lowly policeman or clerk--should want to exercise his or her sworn duty to uphold the law and expose or allege criminal wrong doing within their areas of personal knowledge and competence. Of course they are subject to all the normal restrictions against perjury, false testimony or mere innuendo. But that does not, in my opinion, empower even the Supreme Court to impose such PRIOR RESTRAINT by requiring judicial review before the testimony.

In the final analysis, the unanimous Supreme Court decision Senate v. Ermita, proclaims JUDICIAL REVIEW to be the final fulcrum for deciding whether or not Congress may ask some question, even before it actually does, or whether some person may truthfully and voluntarily answer such question with material and relevant personal knowledge even without the permission of the President.

Senate v. Ermita is the new gag rule to replace EO464 and Circular 108 that has made the Supreme Court, in effect, the Enforcer of Executive Privilege! The imposition of Judicial Review on whistle blowing is in fact a form of PRIOR RESTRAINT on freedom of speech and the Public's right to information about its own government. But the Judicial Activists of the Philippine Supreme Court have painted themselves into an entirely untenable corner with this, as has become from the instant case of Neri v. Senate, in which they are now engaged in a task that I am sure many of them realize they ought not to be undertaking at all!
I think it is the sacred right and duty of every citizen, even of government officials high and low, to divulge information that can amount to evidence about criminal wrong doing to the Congress. It degrades the Freedom of Speech of citizens for to Supreme Court to impose the necessity of judicial review upon their voluntary and honest exposure of waste, inefficiency, graft and corruption, just because they happen to be government employees who come into contact with "privileged information."

I believe that the Supreme Court deprives Filipinos in the Civil Service of the important right to WATCH OVER that government from within, and prevents them from doing their duty to blow the whistle against evil doing whenever they honestly perceive it to exist and are personally willingly to undertake the dangerous process of testifying to Congress and the Public about it.

Senate v. Ermita places the Supreme Court far above both Legislature and Executive in the matter of the validity and regularity of their exclusive prerogatives and ensures a perpetual state of gridlock between them that cannot efficiently or competently be broken by Judiciary already saddled with a MILLION CASE backlog.

THE PHILIPPINE CONGRESS SHOULD IMMEDIATELY PASS COMPREHENSIVE WHISTLE-BLOWER PROTECTION LAWS FOR ALL PERSONS IN THE CIVIL AND MILITARY SERVICES IN ORDER TO OBSOLETE THE SUPREME COURT'S BLUNDEROUS GAG RULE AND USURPATION OF THE POWER OF INQUIRY OF CONGRESS.

Where do I get such strange ideas?

UNITED STATES CONGRESSIONAL OVERSIGHT MANUAL
Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds for a Whistleblower Protection Law in the Philippines

At stake in the Just Balance of Interests in the present case of Neri v. Senate are Executive Privilege of the President and the Powers of Inquiry and Oversight of the Congress. In Senate v. Ermita the Supreme Court unanimously established and clarified the nature, scope, coverage and application of the Principle of Executive Privilege, an implied power of the Chief Executive under the Constitution. But the Powers of Inquiry and Oversight of the Congress appear to be explicit, enumerated powers, rights and functions in a plain reading of the text of the Constitution, needing little of the Court's further construction or explanation.

In 1909 then U.S. President and former Governor General of the Philippine Islands, William Howard Taft issued an Executive Order very reminiscent of EO464 which prohibited all civil service employees from communicating directly with Congress without his permission:

President Taft: "It is hereby ordered that no bureau, office, or division chief, or subordinate in any department of the Government, and no officer of the Army or Navy or Marine Corps stationed in Washington, shall apply to either House of Congress, or to any committee of either House of Congress, or to any Member of Congress, for legislation, or for appropriations, or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress, or any committee of either House of Congress, or any Member of Congress, except through, or as authorized by, the head of his department."

In 1912, the U.S. Congress responded with specific laws that bolstered the Congressional Power of Inquiry against such assertions of executive privilege with the 1912 Anti-Gag Law and Whistleblower Protection Laws (PDF) which mandated that "The right of any persons employed in the civil service . . . to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.”

In the United States Congressional Oversight Manual it states that,

A traditional method of exercising the oversight function, an implied power, is through investigations and inquiries into executive branch operations. Legislators often seek to know how effectively and efficiently programs are working, how well agency officials are responding to legislative directives, and how the public
perceives the programs. The investigatory method helps to ensure a more responsible bureaucracy, while supplying Congress with information needed to formulate new legislation.

Amazingly, just like the implied Power of Oversight of Congress, the Executive Privilege of the President is apparently also an implied power under the grander principle of the Separation of Powers in a tripartite government. Neither the US nor Philippine Constitutions even contains the term "executive privilege" --

EXECUTIVE PRIVILEGE: A Missing Clause in the US Constitution? Presidents have claimed the power to withhold information from the courts and Congress, but no clause of the Constitution speaks of such a power, and questions regarding this are contentious and undetermined. The Supreme Court has ruled that presidential communications are protected by a privilege that is "fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution."

Of course, the SCOTUS has decided many cases involving a conflict between Executive Privilege and the right of the Courts to that privileged information if it is evidence in criminal prosecutions of executive department officials, as happened in the celebrated 1974 case United States v. Nixon. However, although there are allegations of criminal wrongdoing in the ZTE NBN deal, the Senate Blue Ribbon Committee is clearly not a Court of law and there is no criminal proceeding there in which his testimony is required as evidence. This could be used to argue that US v. Nixon does not apply exactly to Neri v. Senate. But how DOES it apply, if it does at all?

Last week, during the hearings into cases filed against FG Mike Arroyo and resigned Comelec Chairman Benjamin Abalos, the Ombudsman panel decided to secure official transcripts of the various Senate hearings, thus taking judicial notice of those hearings, at which testimonies were after all rendered under oath. Clearly the Senate hearings have already gathered and produced information that potentially is material and relevant to a criminal proceeding. Indeed, it would not be the first time that an inquiry of the Congress has produced criminal prosecutions as well as evidence.

But U.S. v. Nixon was a case of conflict between the Executive and the Judiciary. The Supreme Court of the United States (SCOTUS) has never decided a case in which the Principle of Executive Privilege of the President is directly pitted against the Powers of Inquiry and Oversight of the Congress--which is precisely the awesome task that now faces the Philippine Supreme Court. in the coming landmark Supreme Court decision, ROMULO NERI v. SENATE of the PHILIPPINES.

There is one parallelism that is significant. Although in the United States the Power of Inquiry and Oversight into Executive branch operations is an implied power, in the 1987 Philippine Constitution it has the force of a full and uncontroverted Constitutional provision empowering not only House and Senate but their Committees:

1987 Article Six Section 21: The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.

Moreover, it seems to me there is also basis for whistleblower laws in the related provision:

1987 Article Six Section 22: The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

To make the English Compositional structure of the above provision clear, let me print it like this to make it clear why the Congress could easily pass a Whistleblower Protection Act,

"The heads of departments may,

[1] upon their own initiative,
[2] with the consent of the President, OR
[3] upon the request of either House,

as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments."

In Senate v. Ermita and EO 464 above provision plays a central role, but not as the Constitutional basis for whistleblower protection as I am now suggesting.

In the scales of the Balance of Justice in the case of Romulo neri are the implied power of Executive Privilege to withhold information from the Judiciary and Congress as against the enumerated power of inquiry of the Congress.

Continuing along this fundamentalist vein, intelligent Filipinos ought to be inquiring further now into the Constitutional basis of such power of inquiry, which does not exist for Executive Privilege except by implication.

There is a simple explanation why SCOTUS has never faced a case like Neri v. Senate. It is simply the historical fact that the US Presidents have steered clear of using executive privilege against the Congress. Part of the reason is that the US Constitution actually grants the Congress broad powers, explicit and implicit, to elicit information from all departments of the government in aid of legislation and oversight of administration--which is the entire process of making and remaking the laws.

1. The power of the purse.

2. The power to organize the executive branch.

3. The power to make all laws for “carrying into Execution” Congress’s own enumerated powers as well as those of the executive.

4. The power to confirm officers of the United States.

5. The power of investigation and inquiry.

6. Impeachment and removal. Impeachment provides Congress with a powerful, ultimate oversight tool to investigate alleged executive and judicial misbehavior, and to eliminate such misbehavior through the convictions and removal from office of the offending individuals.

For me, the overall picture that emerges is that the specific power of inquiry to conduct investigations in aid of legislation is part and parcel of almost anything the Congress does. Without the Power of Inquiry, the Congress cannot accomplish its duty to wisely make AND remake the laws.

The FULCRUM issue for the Philippine Supreme Court's delicate balancing act in the forthcoming historic decision, Neri v. Senate, could be framed as follows:

If the Prayer of Romulo Neri to prohibit the Senate from arresting him for contempt is granted, how would it affect the ability of the Congress and the President to do their respective duties?

The power of inquiry is actually part of a large and interconnected set of powers all related to the Right of Congress to information to do its job of making and remaking all the laws of the land. This suggests to me that in fact, the Power of Inquiry IS the institutionalization of the Public's Right to Know. Press Freedom, which is the power of inquiry of organized commercial journalism, is also based on the Public's Right to Know. But in Congress, the Truth, the whole Truth and nothing but the Truth is required of all statements under oath or affirmation. That stringent requirement does not exist for the Free Press, which is allowed to sell not only the "truth" but also entertainment.

Thus, I would say that if the Supreme Court hold Press Freedom in the highest regard, it cannot but hold the Congress' Powers of Inquiry and Right to Information in aid of legislation to be at an even higher level of priority.

Finally, the vast enumerated powers of inquiry and oversight of the Congress represents the power of the entire Filipino people to know the truth so they can make and remake the laws for their own benefit and interest. This is to be balanced against the weight of Executive Privilege which belongs strictly speaking to exactly ONE PERSON only.

The Thing About King Solomon and the Public's Right to Know

In the First Book Kings of Christianity's Old Testament the story is told of King Solomon's Judgment. Two women bring before him a single baby boy. Both claim it is their baby. When King Solomon asks for a sword in order to split the baby in half, that they may share him equally, one woman is terrified and says no, the other agrees and perhaps thinks the first arrogant, for disrespecting the King. Guess who gets the Baby?

Last Tuesday, the Supreme Court offered to the Senate and the Palace "a compromise agreement" in which Romulo Neri would once more attend Senate sessions investigating the ZTE National Broadband Network deal with China, but would not have to answer three specific questions. Last night, the Senate has unanimously rejected the offer, with President Manny Villar declaring the principle of the Senate's powers of inquiry in aid of legislation and oversight, to be the transcendental issue. Meanwhile the other headline is that the Palace slams the Senate's arrogance for rejected SC offer. Press Sec. Ignacio Bunye said, "Frankly, we did not expect the arrogance by which the Senate slammed the compromise proposal of no less than the Chief Justice."

The analogy is sure to confuse some people so let me explain a bit of it, because it is not exact in the sense that we do not yet know IF the Supreme Court will indeed rule with Solomonic wisdom or continue with the cuckolding of the Senate that the Court began in 2001. Clearly the two women are Senate and PGMA, who, like the false mother in the Bible, wanted to accept the compromise agreement and thinks the Senate arrogant, who happens to be the real mother.

But who or what is the Baby? Several Philippine Commentaries tackled that question and related others:

King Solomon Just Cut the Baby in Half -- my analysis of the decision Senate v. Ermita
in July 2006.

How the Supreme Court Upheld the Half of EO464 the Palace really needs discusses how the Supreme Court decision upheld both Section 1 of EO464 , which is PGMA's definition of the nature and scope of executive privilege, and Section 2a, which referred to the nonexistent Question Hour in the Constitution, but which was used to introduce a false dichotomy between "in aid of legislation" and "oversight" (to be discussed in a future Commentary).

More under the categories of executive privilege, EO464 and Separation of Powers.
It is clear from these discussions by the way, that Abolishing EO 464 would not abolish Executive Privilege since it is now Senate v. Ermita itself that defines Executive Privilege. The Palace no longer need EO 464, which the Catholic bishops and the Senate have demanded be revoked. Uselessly, it turns out as the Palace has already done so.

Now I claim that the "Baby" in this case is really something we have been arguing about for the last few years: the Public's Right to Know.

Now it is revealed that this particular right is officially exercised by and belongs to most preciously, NOT to the Mass Media or Press, but the Congress!

Proof of this is exactly how King Solomon also extracted the knowledge of who really owns the ba by. By courageously rejecting the Supreme Court's offer to cut in half Congress' Right to Know which is the true essence of the Public's Right to Know, the Senate proves the assertion.

Now all that remains of the analogy is whether the Supreme Court is King Solomon or King Rat.

---

UPDATES:
Uh-oh, another China deal is on the radar screen --- (Southrail) contract is missing!

People Power Fatigue, Faith-Healing, and Psychic Dentistry

person with a painful toothache can think of nothing else but how to gain freedom from it and will often have a dentist pull the tooth--a bloody but largely painless and inexpensive operation that speedily solves the problem. Unless of course the underlying problem is actually a deadly cancer resulting in metastasis and multiple organ failure, brought on by the previous surgeries! In which case the therapy could be longer, more involved and require patience and dedication most hard to come by in this moralistic but unprincipled society. . .

FERDINAND MARCOS had become just such an intolerable toothache by 1986 that the Filipinos were glad to have Ronald Reagan pull him out with helicopters, rotten root and all, like some abscessed molar stinking to the core, with Imelda and some of the loot in tow! "Cut and cut cleanly" said the Doc. Luckily for the Filipinos he was deposited in Hawaii and not Paoay, thus sparing them from a bloody civil war.

Whatever Cardinal Sin did in 1986 he certainly could've done it much earlier, but was just too busy with what he called "constructive engagement"--later called waltzing with the Dictator. The inconvenient truth is that 99.9% of the duration of Marcos, the Catholic Church was the Palace's favorite lap poodle. The Men in Skirts cut a lot of Blue Ribbon's to satiate Imelda's Edifice Complex. By the time Ronald Reagan became President, even the Americans, whose sonofabitch Marcos was, were ready for him to cut and cut cleanly because he was doing a better job recruiting for the NPA than Joma or Satur!

But the Filipinos took a long enough time getting rid of Marcos. Some even say, he would have died soon enough from lupus and passed from history's stage without them doing anything at all, and the post-Marcos result would've been the same: a restoration of the pre-Marcos dispensation, which wasn't really much better!

The fall of Marcos also saw the rise of the very concept of Edsa People Power as a "bloodless revolution" and a "peaceful solution" to such painful conditions as fascist dictators and corrupt leaders. The claim to a people power revolution in 1986 is valid given that in 1987 a new Constitution was promulgated and ratified with all sorts of people power concepts in it meant to prevent another Marcos.

People Power was a like a hammer just waiting for a nail...

JOSEPH ESTRADA was overthrown in 2001 during the inevitable "Edsa II People Power Revolution" -- which Filipinos have only slowly learned had very little to do with the People, and was no revolution at all, but a military backed coup d'etat. Paralyzed by three straight days of round-the-clock demonstrations at the Edsa Shrine starting on 16 January 2001, he was indeed extracted by Doctors Hilario G. Davide Jr. and Doctor Angelo T. Reyes, Chiefs of the Justice and AFP Departments respectively, in a brilliant operation that is still hailed today as the Edsa II People Power Revolution. Never mind that both were derelict of specific Constitutional duties. Reyes declared and committed mutiny against his Commander in Chief and defected to the demonstrators on 19 January 2001. Davide abandoned his clear duty to finish Erap's Impeachment Trial, and uphold the Rule of Law. Instead he appeared at the Edsa Shrine in the costume of the Chief Justice and swore in the Vice President upon the strange idea that Joseph Estrada was permanently incapacitated on Saturday, 20 January 2001. Unbeknownst to Davide and the Supreme Court, and even to Erap [sic!], Erap had already resigned though the construing of that would not occur until March, 2001 after the Court had a chance to wrestle with the daemons of absurd inconsistencies involving their own actions at Edsa Dos!

Of course, a revolutionary situation could easily have been declared at Edsa Dos, and a new Constitution promulgated just like after the fall of Marcos. But why did the Supreme Court have to insist that the process of overthrowing Erap was "Constitutional throughout" even though there is neither hide nor hair of that process in the Constitution? Why was Revolution not declared and a new Constitution adopted given that the 1987 provisions were so wantonly dispensed with by no less than the Chief Justice Hilario Davide?

Haha. I just realized why recently: BECAUSE IT COULD NEVER HAVE BEEN RATIFIED!
The People would've decisively and derisively REJECTED such a Davide Constitution at any plebiscite involving the overthrow of Erap. Even today!

Popular enthusiasm has noticeably waned for the sudden, radical surgeries of Edsa People Power because the last organ transplant has only produced a Mutant Republic in which the balance of power in a tripartite government has been wrecked along with the institution of Congress and cannot be restored without foregoing the addictive allure of People Power shortcuts.

While some people don't care much for the alternatives to Gloria, people's disenchantment with People Power putsches goes beyond this consideration.

The People, who have been accused of fatigue, or apathy, or indifference, to explain the failure to foment another Edsa People Power, may be far wiser than they are given credit for by their betters in Civil Society. The People seem to have a far better appreciation of the Diagnosis.

For the Filipinos first received the bad news of a Social Cancer a very long time ago. Ironically even the Catholic Bishops are sounding the clarion call for the Truth:

We face today a crisis of truth and the pervading cancer of corruption. We must seek the truth and we must restore integrity. These are moral values needing spiritual and moral insights.

Like a person with a massively throbbing toothache, a person who has Cancer likewise can think of nothing else but how to gain freedom from it. Yet, why should we label as "fatigue" or "apathy" his utter lack of enthusiasm for the psychic surgery of people power?

The man who diagnosed the Social Cancer of Filipino society even before it became Filipino society, also taught them that they ought not engage in revolutions they cannot possibly win.

Thus, I think the Filipino People know they have Cancer, not just a Toothache. It is going to take more than FAITH HEALING and PSYCHIC DENTISTRY to deal with this disease. We must expect the continuing emergence of evil cancers in our government in the foreseeable future and prepare for it by strengthening our institutions and restoring the system of checks and balance that was destroyed at Edsa DOS!

ZTE may be just the tip of the iceberg as Senate investigators open up a can of Chinese worms, causing President Gloria Macapagal Arroyo to suspend $4 billion worth of deals with China. On top of that, fresh accusations have arisen that the President has compromised Philippine and Asean interests in the Spratleys by jumping into bed with China, which claims ancient dominion on "the islands in the South China Sea" (like Luzon Island?)

Yet these weighty issues can hardly be settled by the much vaunted Parliament of the Streets.

If people are tired of anything, they are tired of being told a Truth they discovered long ago and then are constantly urged to take to the streets and rush into the arms of our would-be Dentists. Long ago they discovered the truth about these self-administered heart-and-brain transplants masquerading as moral revolutions of the heart and mind. All they got was Gloria.

People power is DEAD not from fatigue, but from the People having a better appreciation of the diagnosis than the pundits and their betters! We need to re-establish the immune system of our institutions, not resort to pulling teeth willy nilly, or even the psychic dentistry of the Catholic Bishops, because the underlying condition is far more serious than we think.

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UPDATES and CAVEATS:
The Leftists are in denial that people would be fatigued over something they've been doing for half a century as a matter of professional occupation. But even Joma has scaled back his grandiose fantasies by 90%, to hundred thousand man marches.

Here is Amando Doronila on the democratic legacies of Edsa People Power. What a yawn!

The BBC had a big retrospective on People Power fatigue in the Philippines. Lotsa pix.

The Philippine Senate IS the Supreme Court of Public Accountability

Nowhere in the Constitution is the grand principle of the Separation of Powers through Checks and Balances in a tripartite government as clearly defined as a geological formation than in 1987 ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS. For here is described the sole and exclusive JUDICIAL power of the Congress over Constitutional Officers.

Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives.

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

THE PHILIPPINE GOVERNMENT employs well over a million people, but a very special group of "Constitutional Officers" enjoys immunity from civil and criminal suits while in office and may only be removed prematurely by IMPEACHMENT under the 1987 Constitution (Art XI Accountability of Public Officers)—

15 Supreme Court Justices.
7 Comelec Commissioners.
3 COA Commissioners.
3 CSC Commissioners.
1 Ombudsman
1 Vice President
1 President

Note that the Congress has NO impeachable officers. All Senators and Congressmen are directly accountable to the people through regular elections and the Justice system.

THE PALACE was saying all day yesterday: "Leave it to the Courts and the Rule of law."

Well, I've got news for them. Under the 1987 Constitution the Philippine Senate IS the Supreme Court of Public Accountability—the Rule of Law for kicking out impeachable officers like the President before their time is up for high crimes and misdemeanors like knowingly signing corrupt deals disadvantageous to the government.

Since we are now talking about REGIME CHANGE again, it is time to review the basics.

There are five and exactly five ways under the 1987 Constitution by which the term in office of a duly elected President ENDS:

1. The President completes the six year term in office.
2. The President dies.
3. The President becomes permanently incapacitated.
4. The President resigns.
5. The President is impeached, convicted, removed from and permanently barred from public office.

Notice that the first four things just sort of happen. The Public does not really have to do anything for one of them to happen. The regular six year term will pass with time, unless Grim takes the President first or fries his brain. The President could also quit for any reason whatsoever (including people power, but wish again.)

IMPEACHMENT is unique. It is the only legal weapon provided by the Constitution for the enforced removal of a President by the People acting through their Congress.

IMPEACHMENT is a JUDICIAL power and process exercised by the POLITICAL Branch of the Government, the Congress, which is the only department without ANY impeachable officers.

IMPEACHMENT is the closest thing to a JURY system that we have. In IMPEACHMENT the People themselves become the jury through the Senator-judges. Unlike the secret processes of deliberation in the Judiciary (which is called Judicial Privilege), impeachment is a nationally televised affair.

IMPEACHMENT is the SOLE and EXCLUSIVE jurisdiction of the Congress, no particle of which is shared with either the Judiciary or the Executive Branch.

Nowhere does it say that the Supreme Court Chief Justice can appear like a Jack-in-the-Box from out of nowhere and suddenly swear in the Vice President without verifying that one of the five conditions above obtains, or an election has been held for a new president. In 2001, GMA became President on the false premise that Erap was "permanently incapacitated" a claim she made herself to them in a faxed message. The Justices knew this was NOT TRUE. Erap was NOT "permanently incapacitated" on Saturday, 20 January 2001. Davide had previously agreed to do it in a breakfast meeting with Cardinal Sin, Cory Aquino, Chief Justice Davide and Gloria Macapagal Arroyo, "in order to prevent violence." Actually it was to prevent the valid acquittal of Joseph Estrada at his Senate Impeachment Trial, which had not yet even heard the Defense. Despite the strenuous objections of then Justice Cecilia Munoz Palma, the Court allowed the swearing in and ruled on Monday, 22 January 2001 that the Chief Justice Hilario Davide had the authority to swear in the Vice President. Morally that is not any different than GMA signing the ZTE deal even if she knew it was flawed because by Saturday afternoon, a shell-shocked but self-evidently NOT permanently incapacitated Joseph Estrada was televised nationally leaving the Palace. Months later, in March 2001, the Supreme Court issued its historic decision, Estrada v. Arroyo, saying Erap had actually resigned despite the incongruity of his continuing denials [sic!]. They construed things based mainly on Ed Angara's diary hurriedly put together and published in a newspaper. Edsa Dos was actually a military backed judicial coup d'etat. So much for the Edsa Dos People Power Revolution. The Constitution is not a mere technicality that inconveniences moralists. It is a Machine that our liberal fascists just don't understand and is perilous to be fooling around with, like the Ark of the Covenant.

1987 ARTICLE XI ACCOUNTABILITY OF PUBLIC OFFICERS ought to be read and understood by all who stand by the Consitution in this particular time of crisis. Nowhere is the Principle of Separation of Powers made more clear than here because here the JUDICIAL function of initiating and deciding with complete finality, a case of impeachment, is seen to be the SOLE and EXCLUSIVE power of the Congress. The Supreme Court does not even have the power of judicial review over such a decision of the Senate Impeachment Court. Not even the Powers of Executive Clemency can touch the verdict in any case of impeachment. It is crystal clear to me that whenever it is convened, the Senate Impeachment Court IS the Supreme Court of Public Accountability.

The public debate and court cases over Executive Privilege and Congress' Right to Information in aid of legislation AND oversight should be informed by the Principle of Separation of Powers inherent in the concept of Public Accountability as enforced by the political branch of the government. Here it is crystal clear: the Political Branch is given supreme judicial authority over these very special and important persons who are the highest "public officers" of the land in the sense that they can only be impeached to remove them prematurely from office. A Senator or Congressman, on the other hand, can be arrested and tried by the ordinary courts for serious enough offenses.

Such a sole and exclusive power, as potent as impeachment is, would not be granted to the Congress if the implied duty of JUDICIAL OVERSIGHT over the Officers of the Constitution were not considered co-equal in importance to its main LEGISLATIVE function.

How Many Relatives Do You Have at the Fourth Civil Degree of Consanguinity or Affinity?

How the Supreme Court Vastly Increased the Right of Nosey Relatives to Know our Data!

An FAQ post at the Philippines E-Legal Forum by the prolific professor and blawger, Fred Pamaos, answers many questions about the writ of habeas data, including

Who may file a petition for the issuance of a writ of habeas data?

The petition may be filed by the aggrieved party. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

But it also raises a fascinating problem in algebra, genealogy and combinatorics that inspired today's post.

How many people could there be within the fourth civil degree of consanguinity or affinity of a typical Filipino citizen?

Consanguinity refers to all the people your are related to by blood, a biological relationship. Affinity refers to civil relationships arising from marriage (your "in-laws").

Within the first degree of consanguinity are all the people YOU could be related to directly by blood (P=parents as direct ascendants; C=children as direct descendants, S=brothers and sisters as siblings).

Clearly the minimum number of relatives within one degree of consanguinity is two, since we all have two parents. Let us assume that the typical or average number of children for every person who raises a family in a given society is 5. This means the typical or average number of siblings is 4.

Then the typical or average number of relatives within one civil degree of CONSANGUINITY would be 2+4+5 or 11 (ascendants, descendants, and siblings). Assuming further that the typical or average number of spouses is 1, we get a nice even dozen (12) as the typical or average number of people within one civil degree of consanguinity or affinity.

Let us call this number N1==typical or average number of people within one civil degree of consanguinity or affinity in a given society or community.

We are interested of course in a number we could call N4, which is the same number out to the fourth civil degree of relationship or "relativity."

To see how we get to an estimate on the UPPER BOUND or MAXIMUM value of N4, (which is the number of people that the Supreme Court has just granted the right to file a Writ of habeas data on MY behalf) let me first make the following observation:

Since each of my relatives at degree ONE also has the same typical or average number of relatives at degree ONE, this means that my relatives (in-DNA or in-LAW) at degree TWO are all the degree ONE relatives of my degree ONE relatives.

N2=N1 times N1

By a process of logical induction, we may conclude that

N3= N1 cubed and that N4=N1 times N1 times N1 times N1 or 12 to the fourth power 20,736.

Thus, if the typical or average number of children in every generation is assumed to be FIVE (5) the MAXIMUM POSSIBLE number of my relatives out to the fourth civil degree of consanguinity is 20,736 persons.

But this number is not all for how many relatives do I have by affinity?

Well, these are all of the people that are my spouse's relatives out to the THIRD degree of consanguinity or affinity. A LOWER BOUND on this number are just her relatives by consanguinity, which by the same reasons used above would be the cube of the typical number of children or direct descendants in each generation.

For our typical number of 5 children, this means that in the fourth degree of affinity, we could have as many as 12 cubed or 1728.

There are thus 1728+20736=22,464 RELATIVES AND IN-LAWS that the Supreme Court has given the right of their Writ to Habeas My Data.

What a charming irrelevance the Supreme Court has made of the very provision they claim empowers them to establish such Rules of Court:

1987 ART. VIII Section 5. The Supreme Court shall have the following powers:
...
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The SUPERNAL IRONY of all this is the amazing claim by the Court in its Rule on the Writ of Habeas Data (pdf) that it is protecting my RIGHT TO PRIVACY [SIC!]

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...in the blogosphere...

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PDI Senior Editor John Nery (Newsstand Blog) proclaims a virtue: “...fairness in procedures for resolving conflicts is the fundamental kind of fairness, and ... it is acknowledged as a value in most cultures, places, and times; fairness in procedure is an invariable value, a constant in human nature.” Even in an inconstant Press I might add! Could PDI be turning towards the light and away from the darkness of Press Freedom Uber Alles? Will that great newspaper ever grow up and become an institution instead of an insurgency? Maybe with John's help...

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AMADEO has The Ignatian Perspective ... Jesus Christ surveys the Blogosphere

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The Warrior Lawyer points to an essay by Dean Raul Pangalangan in which he addresses institutions:

"Our Constitution was designed so that we can enforce public accountability through the mechanical working of institutional checks and balances. What Gloria Macapagal-Arroyo has done is to destroy those institutions and pervert just about all the agencies for public accountability. Impeachment? Just trigger the one-year bar with a bogus complaint, lock in the votes, and divide the spoils with pliant congressmen. The Ombudsman? No worry. It wouldn’t move against the Palace and, even under pain of contempt from the Supreme Court, it hemmed and hawed before it charged anyone for the fraudulent computerization of the Commission on Electins. And the Department of Justice? Oh, that’s just a misnomer.

Amid the debris of failed institutions, only the headstrong whistle-blower remains standing as the last check on presidential abuse. Gloria Macapagal-Arroyo should know the power of a witness who steps forward to tell the truth. That is how she came to power at EDSA People Power II and, should it come to pass, that is how she may be dethroned as well."

I think this misconstrues what happened at Edsa Dos. It was not Gloria Arroyo destroyed Checks and Balances then, but Hilario Davide and the Supreme Court--by aborting the Impeachment trial of Erap Estrada and nullifying the for-certain verdict of acquittal that the impeachment process was about to produce; by ignoring the explicit provisions on presidential succession and the warning of Justice Cecilia Munoz Palma; by calling Mutiny and Treason "withdrawal of support"; by usurping the SOLE and EXCLUSIVE institutional rights of the Congress over the Accountability of Public Officers ---thus did the Supreme Court destroy Separation of Powers and Checks and Balances!

Are we not utterly lost if the LAST check on presidential abuse is the headstrong whistleblower?

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JEGO notes that there are no dinosaurs on Saturn's moon Titan but an awful lot of petrol. No SUVs on Mars, either, despite its steadily shrinking polar ice caps.

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Just imagine the poignant photoblography of Senor Enrique in say, the year 2108.

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There is even more evidence now that IVAN ABOUT TOWN is really a foodie blogger, not a backpacker. He treks to EAT! (I'm ready. Let's go!)

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Groundhogtech reports on the launch in North America of China's first CELL PHONE: the ZTE C88.

The unit will retail for between $129 and $149 and is described as being similar to the highly popular Motorola Razr --- except it's a lot THICKER!

I suppose it's just like the ZTE National Broadband Deal-- no corruption, unless you look under the hood.

I'm writing my 22,436 relatives to moderate their greed. Buy Motorola. It's thinner.

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FRED PAMAOS (Philippines e-Legal Forum) examines how the processes at the Ombudsman affect the Senate investigations into the ZTE NBN deal. He cites the conflicting cases of Bengzon v. Blue Ribbon Committee and Standard Chartered Bank v. Enrile. Read it all.

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IS DULMATIN DEAD? ABSCBN NEWS in Manila is reporting on its noon day newscast that Federal Bureau of Investigation (FBI) agents have arrived in Zamboanga City to perform forensic and DNA examination on a cadaver said to be that of the suspected Bali Bomber, the Indonesian Jemaah Islamiyah fugitive with a TEN MILLION DOLLAR reward on his head. The report said this "Dulmatin" may have been killed in an encounter between Philippine Marines and Abu Sayyaf terrorists last January 31 in Tawi-tawi, Mindanao Island.

The link to the Rewards for Justice Program is one of the oldest on my blogroll.

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SYMBIANIZE has a lot more of this kind of stuff...I call it Lozadiana, pop art being spawned by the scandal.

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SHOW ME THE CRATER, GENIUSES!

SOME SENATORS are embarrassing themselves on national TV. For example PIA CAYETANO claims to be interested in the production of methane biogas from sump pumps as an alternative source of energy. What a ditz! Methane IS "biogas". She chairman of the environment committee. I guess she's never heard of Malampaya! Susmaryosep! Here's Wikipedia for you Senator Pia, Your Honor. "When methane-rich gases are produced by the anaerobic decay of non-fossil organic material, these are referred to as biogas."

Ayala Corp.'s slick 3D animation presentation of the Glorietta 2 basement did reveal the space between an old floor and a new floor above the basement, in which a deadly miasma of methane and diesel fumes accumulated and later ignited and exploded.

An earnest and honest question did come from SEN. RODOLFO BIAZON of the Senate Defense Committee. He wondered how "lighter than air gases" like Methane could accumulate in the basement when that space was not strictly speaking air-tight since the basement space communicates with the outside through an open stairwell.

The simple answer is that a lighter than air gas will be trapped in any pocket or subspace of the larger basement space which is HIGHER than the opening to the outside.

Juan Ponce Enrile was good though with: "Maleleche!" as he scolded the Ayala and Makati Supermarket reps.

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Marvin Acerson (La Vida Lawyer) made a rare but worthwhile public appearance today on the The Explainer which tackled the hot topic of the week: the Truth.

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Pangalangan v. Puno on Judicial Activism and Rule of Law

Former University of the Philippines Law School Dean Raul Pangalangan wrote an essay last week in which he criticizes the recent Supreme Court Circular on Libel as "enhancing Press Freedom at the expense of institutionalization of the Rule of Law." He also calls Edsa DOS "constitutionally awkward". It's a breakthrough piece of writing that shows off Dean Pangalangan's "Passion For Reason." Couched in a classical and courteous style, it is also politically incorrect and must've touched a raw nerve on the High Bench for it elicited a rare, full-fledged reply with legal citations from no less than the Chief Justice Reynato Puno, who may have a future in Journalism as a Pundit. Both pieces are reproduced below. I think Mr. Pangalangan sends a message to the Supreme Court that the days when they could ignore intellectual challenges to their actions and decisions in the outside world are over! There ARE brains out here to match wits with theirs, who can understand and explain the Law without gobbledygook and won't necessarily let theirs, go completely unchallenged. For me, the Libel Circular unfairly and unjustly prejudices hundreds of existing cases. Read it all.

Judicial Activism and its Limits
by Raul Pangalangan (via Inquirer.net)

MANILA, Philippines -- Chief Justice Reynato Puno has advised the judges to stay the hand that punishes libel, by leaning toward fines rather than jail terms. I support his end goal, which is to decriminalize libel, a welcome burst of light in this dark hour when the administration of President Gloria Macapagal-Arroyo has declared open war against the media. However, I would have much preferred that it be carried out by Congress, the law-making arm under our Constitution, rather than by the Court. We have strengthened press freedom at the expense of the institutionalization of the rule of law.

Justice Secretary Raul Gonzalez suggests, on the other hand, that the Chief Justice be impeached. I strongly disagree.

The memo was well-crafted, as befits the masterful pen of Reynato Puno, and deliberately steers clear of that charge. Judicial power is exercised by the judge when he applies generally applicable rules to actual cases and controversies. Only our elected deputies in Congress however can make those rules. The Puno memo does not cross that line because it amply leaves the weighing of penalties to the trial judge. The law gives to the judge the discretion whether to imprison or to fine. The Chief Justice did not curtail that discretion, but merely tilts it one way. After all, as Holmes said, we cannot demarcate the powers of government “with mathematical precision [nor] divide the[m] into watertight compartments”; they form “a penumbra shading gradually from one extreme to another.”

The title says it all -- “Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases” -- and it actually shows how several Court decisions have now given rise to an “emergent rule of preference” for fines rather than prison.

That doesn’t make the memo illegal but it makes it woefully ill-advised, at a time the republican forces in this country have censured President Arroyo for precisely this sort of constitutional shortcut. For how can a judiciary that can barely contain its powers censure a President who abuses hers?

Sure, the “emergent rule” reflects settled case precedent, but the Supreme Court, when it wants to shape how lower courts decide actual cases, speaks through precedent, not through guidelines. In other words, Congress said through law: Punish with prison, or fine, or both. Now the Court says via memo: Among all of the above, use cash fines as far as possible.

Many Filipinos have criticized Malacañang for trying to amend the law via press release, media advisory or unwritten proclamation. Executive Secretary Eduardo Ermita declared a “calibrated preemptive response” policy against protest rallies, when the law mandates “maximum tolerance.” Gonzalez threatened journalists with jail if they insisted on covering anti-coup assaults, but explained it was a mere “advisory.” Whereas Marcos proclaimed martial law first before he declared a curfew, Ms Arroyo simply announced the curfew, who cares by what authority? The Constitution calls for a professional civil service, so what to do with unqualified political favorites? Call them presidential assistants and place them a cut above civil service rules.

Now the Court has taken a step along that same path. Though no one can accuse it of trying to undermine our liberties, the memo short-circuits the separation of powers just the same.

This is not about whether the end (protecting media) justifies the means (the guideline). The debate is actually between two competing ends: the immediate (press freedom) and the long-term (the rule of law, as embodied in a government of separated powers). In constitutional law, it’s called the theory of “pre-commitment.” We bind our hands in advance, because we know that when faced with pressing dilemmas, we will be tempted to barter systemic detriment for episodic advantage.

The Chief Justice is an activist who wants to solve problems in the here and now, but he is also a jurist, duty-bound to pay heed to institutional safeguards. Many Filipinos have lauded Puno’s judicial activism. That praise is well-deserved. When the entire administration showed callous disregard for the hundreds of victims of extrajudicial killings, it was the Puno Court alone that stepped forward to reach out to the victims. But the finest legacy that the Court can bequeath to the nation is a judiciary that is strong as an institution.

The Chief Justice cannot be blamed if he is impatient at the indifference of the two other branches of government. His activism is by no means isolated. At a recent constitutional law forum at the Hong Kong University where I spoke, it was called “Judicialized Governance,” when principled courts step into the void left by dysfunctional democratic majorities.

In May 2001, as the nation basked in glory of the EDSA People Power II uprising, I said in a lecture held at the Supreme Court for its centennial: “Given the constitutional awkwardness of EDSA II, the popular impulse, apparently, is simply for an entire society to look the other way, or more felicitously, not to look a gift horse in the mouth. I worry about this practical, pragmatic impulse.”

Today, despite dismal aftermath of EDSA II, we have remained “consequentialist.” We ask only, “What’s the immediate advantage?” but not “What principles do we sacrifice along the way?”

In 2001, I recalled Holmes who said that “great cases, like hard cases, make bad law,” and Cardozo, who warned against the “expediency of the passing hour … the derision of those who have no patience with general principles.” My conclusion then, as now: “For [Filipinos], the real legacy of these ‘great cases’ is that they have taught us the painful way, apparently the only way we truly learn, that … we need greater ‘patience with general principles,’ and that for our Republic to flourish, we must ever rely on ‘those wise restraints that make us free.’”

Amazingly, the Supreme Court Chief Justice Reynato Puno replied within days to Dean Pangalangan who has published the rare Letter to a Pundit in full today.

JUSTICE PUNO: I write in reaction to the column of former UP [University of the Philippines] Dean of the College of Law, Raul C. Pangalangan entitled “Judicial Activism and its Limits,” which appeared in the 1 February 2008 issue of the Philippine Daily Inquirer.

At the outset, I thank Dean Pangalangan for some praises but I wish to clarify some points when the Court en banc approved the Circular calling the attention of judges to some of its decisions imposing fines on accused convicted of libel.

First. Dean Pangalangan says he supports our end goal to decriminalize libel. This is not our end goal. The decision to decriminalize libel belongs to Congress and not to the Supreme Court. There ought to be no argument on this point.

Second. If the intent of the Supreme Court is to decriminalize libel, the Circular would have advised judges to dismiss all criminal cases for libel and inform the victims that their only remedy is to file civil damages. The Circular did not give that advice but merely called the attention of judges to decisions where fine was imposed under certain circumstances.

Examples of these circumstances are: (1) when the accused wrote the libelous article merely to defend his honor against the malicious messages that earlier circulated around the subdivision, which he thought was the handiwork of the private complainant; (2) when the accused committed the libel in the heat of anger and in reaction to a perceived provocation; (3) when passions evoked during the election period in 1988 agitated the accused into writing his libelous letter; and (4) when the accused was merely exercising a civic or moral duty to his client when he wrote the defamatory letter to private complainant. Stated differently, the judge, in the exercise of his discretion, should impose the penalty of imprisonment when these circumstances are inexistent.

The imposition of fine does not decriminalize libel for the simple reason that fine is a criminal penalty. Let me just quote the pertinent provisions of the Revised Penal Code, viz: Art. 25. Penalties which may be imposed … [and] Art. 26. Fine -- when afflictive, correctional, or light penalty….

Needless to state, when a court imposes fine, it is imposing a criminal penalty. Indeed, pursuant to Article 39 of the Revised Penal Code, an accused who fails to the pay the fine will suffer subsidiary imprisonment [“If the convict has no property with which to meet the fine”] viz: Art. 39. Subsidiary penalty….

Fourth. In imposing fines, courts are given leeway by … the Revised Penal Code, viz: Art. 66. Imposition of fines [taking into account] “the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit.” The article speaks for itself.

Fifth. Former Dean Pangalangan says the “Supreme Court, when it wants to shape how lower courts decide actual cases speaks through precedent, not through guidelines.” We agree but a side glance at the Circular will show that the Court spoke to the judges through precedents. Precisely, the Court called their attention to the following decided cases: Sazon v. CA (1996); Mari v. CA (2000); Brillante v. CA (2005); and Buates, Jr. v. People (2006).

Sixth. The former dean asks: “For how can a judiciary that can barely contain its powers censure a President who abuses hers?” It is perplexing how the Dean can use the premise of a “judiciary that can barely contain its power” yet laud judicial activism. There were only two instances when the Court used its expanded power to promulgate rules to protect the constitutional rights of our people to life, liberty and security -- that was when it promulgated the rule on the remedy of the writ of amparo, and the writ of habeas data. We cannot, therefore, complain of “a judiciary that can barely contain its powers.”

Seventh. The former dean has no reason to lament the short-circuiting of the principle of separation of powers and the erosion of the rule of law. The Circular does not violate the doctrine of separation of powers because it is based on cases decided by the Court in the constitutional exercise of its power to interpret our laws. It does not erode the rule of law but strengthens its sinews, for it follows the architecture of our Constitution that gives preferred status to freedom of speech and of the press.

In any event, we thank former Dean Pangalangan for his valuable thoughts on the Circular.

...AND, one of these days, I'd like them to talk about the picture in this post and why the Supreme Court deserves to wear it as an albatross around their honorable neck!