The Whistleblower Still Is Heard

IT WAS A REAL HONOR AND PRIVILEGE being on tonight's edition of ALAN PAGUIA's new television talk show on the Global News Network (Destiny Cable) because his main guest was General Francisco Gudani, the Marine General commanding the First Infantry Battalion of the Philippine Marines in Lanao province back in 2004 and one of the most credible whistleblowers from the Hello Garci Tape scandal). He is a true officer and a gentleman who has served his country with bravery and integrity fighting both terrorist insurgents and the equally terrible perpetrators of electoral fraud in the 2004 elections. People will recall that it was in the attempt to silence his testimony before the Senate National Defense investigating committees that the infamous Executive Order No. 464 Gag Order was promulgated by President Gloria Macapagal Arroyo. Now retired, Gen. Gudani spends much of his time promoting Christian fellowship among the soldiers and officers of the Philippine Military. On the show I made the point oft-repeated on this blog that the Hello Garci wiretapping scandal is as much about electoral fraud as it is about the despicable and dishonorable practice of prostituting the Armed Forces of the Philippines to partisan political purposes. As such, the illegal Isafp wiretapping that was revealed during that scandal represents violations against National Security that seriously damages the integrity, moral standing and fighting capabilities of the Armed Forces.

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ANOTHER KIDNAPPING ALREADY! Oh by the way, it looks like the Abu Sayyaf didn't get enough from the kidnapping of Ces Drilon (though they got the usual major propaganda payoff from the Philippine Daily Innuendo and Khaddafy Janjalani's ole squeeze Arlyn de la Cruz). So they just kidnapped five employees of the Basilan Electric Cooperative yesterday. One of the five hostages was released late yesterday, just like they did with Ces Drilon's Angelo Valderama (probably to deliver the ransom demand while showing off their "humanitarian" streak). But I'm afraid these poor guys could get the axe if their relatives (or Ronnie Puno and the DILG) don't come up with millions in ransom!

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Meanwhile the CPP NPA NDF cell and the leftist ideologues inside the biggest tabloid in the country are working overtime to complain about "US military presence" in the form of the USS Ronald Reagan, which is assisting in rescue and recovery operations at the capsized MV Princess of the Stars. In this connection, there is also the utter gracelessness of the blogger at Uniffors.

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Today's Updates...

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THE MYANMAR SYNDROME: Lots of the same people who marveled at the utter stupidity of the military junta in Myanmar for rejecting foreign aid after a major natural disaster are today doing a Burmese hat dance over the generous aid being offered by the United States of America in sending the nuclear powered aircraft carrier USS Ronald Reagan to help in the aftermath of Typhoon Frank. Men in skirts and Funny Hats and voodoo incantations are apparently preferred over helicopters and search aircraft. To hell (or heaven) with the victims and their grieving relatives. Let them have a holy biscuit and magic wine...

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MISPERCENTING THE DATA: GMA TV News just posted a Praise Release from the Dept. of Education (PDF) which reports increases in the National Achievement Test scores of public school students.

Some 1.64 million students from 30,396 public schools took the NAT last March.

In the key subjects tested, students showed the biggest improvement in Science with a percentage increase of 12.26 percent, from an MPS of 51.58 percent in 2007 to 57.90 percent in 2008. It was followed by big strides in Filipino and HEKASI which posted an improvement of 10.84 percent and 10.47 percent, respectively.

Overall, the average increment in MPS in Math, Science and English among Grade 6 students was 6.24 percent, from last year's MPS of 44.29 percent to 47.67 percent this year.

No, gentle Reader, you are not having a delusional fit of arithmetic innumeracy, because 57.90% minus 51.58% happens to be equal to 12.26% of 51.58%, and 47.67% minus 44.29% is 6.24% of 44.29%! So it's true, the PERCENT change in the percent score was 12.26% percent per percent! It's a sneaky way of turning single digit gains into A MIRAGE of double digit increases.

There is no known name for this form of self-serving statistical fudging, where it is the percent change in the percent statistic that is percented, err, presented, so I shall invent a neologism for it: Philippinnumeracy!

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.

Supreme Court Rules 9-6 In Favor of Romulo Neri Against Philippine Senate

Both ABSCBN and GMA-TV News are reporting in Manila that the Supreme Court has ruled 9-6 in favor of Romulo Neri's petition to PROHIBIT the Senate of the Philippines from arresting him for contempt for refusing to answer three questions involving testimonial evidence he could give on President Arroyo's complicity in the scandalous ZTE NBN deal with China.

Philippine Commentary on February 6 was (modesty aside)--Supreme Court Will Rule That Executive Privilege Covers What Neri and Lozada Know

Okay, here are all fourteen of my Philippine Commentaries on Executive Privilege
since the first one reacting to Senate v. Ermita
King Solomon Just Cut the Baby in Half (April, 2006)

and the latest one just this morning before the announcement:

Judicial Review is the Wrong Fulcrum to Balance Executive Privilege and Congress Oversight of Administration (March, 2008)

My Two Centavos Worth:

The Philippine Congress should immediately pass comprehensive whistle-blower protection laws for all persons in the Civil Service in order to obsolete the Supreme Court's gag rules in Senate v. Ermita and Neri v. Senate which are brazen subjugations to Judicial Review and Executive Privilege of the Power of Inquiry of Congress in aid of legislation and the legislatures integral duty of oversight of administration. I cannot imagine a more compleat and disastrous demolition of the Separtion of Powers and a curtailment of the Public’s Very Right to Know what their government is doing than this 9-6 decision of the Supreme Court. We are now under an effective Dictatorship of Judicial and Executive Privilege in which the principle of Checks and Balances is no more. The cuckolding of the Congress which begun in 2001 has once again been affirmed and practiced by Unelected Judges appointed by an illegitimate chief executive. Forget not: the Executive has only two impeachable officials, whilst the Supreme Court has fifteen. That's a lot of Privilege!

WHAT NEXT?

UNITED STATES CONGRESSIONAL OVERSIGHT MANUAL

Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds For a Whistle Blower Protection Law

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

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.

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

Invoking Executive Privilege is like Taking the Fifth Amendment

FOUNDING FATHER JOAQUIN BERNAS, S.J. has suddenly realized he doesn't like Senate v. Ermita, the unanimous Supreme Court decision on EO 464. (In my original Commentary when the decision was promulgated, I likened it to a Decision that King Solomon would never have made in which He offers to cut the Baby of Justice in half. And does!) But the good Fr. Bernas only obliquely expresses his displeasure in the last line.--

"In conclusion, the President would do the nation a great favor if she were to withdraw Executive Order 464. Because it is justifiably seen as a serious obstacle to the discovery of truth, it is a major cause of the growing outcry of the public against the current administration."

Why does Fr. Bernas beg the President to do the nation a great favor and withdraw the gag rule EO 464? Isn't it because the Supreme Court in Senate v. Ermita actually upheld the Doctrine of Executive Privilege as detailed in EO464?

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the public official covered by this executive order
2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged
3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements
4. Discussion in close-door Cabinet meetings
5. Matters affecting national security and public order

To be sure, the implementation of EO464 was heavy handed and clearly intended to obstruct the Right of Congress to inquire into Executive Dept. shenanigans. And the Supreme Court embellished its criticisms of these imperfections, while extending the kindliest attitude of judicial construction and advise for the next time it needs to be invoked. I early on got the impression that Senate v. Ermita is an advisory opinion and judicial tutorial for present and future Presidents on how to invoke the privilege, when, where, by whom and while bending over backwards to "construe" the innate constitutionality of EO 464. In my opinion, the Supreme Court in Senate v. Ermita has elevated the Arroyo Doctrine of Executive Privilege to the status of a Right Against Self-Incrimination by the Executive or her alter egos in Congressional inquiries.

Invoking Executive Privilege is therefore equivalent to "taking the Fifth Amendment." It is a kind of institutional right against self-incrimination. When an individual citizen for example, "takes the fifth" and refuses to answer questions, (say in a Congressional inquiry), that may tend to incriminate him, that person is exercising a sacrosanct Right to Privacy, the right not to speak. In the context of the Garci interrogations in the House, I have opined that The Right of the Public to Know Ends at the Right Against Self Incrimination. "Taking the Fifth" is clearly a boundary limit on the Public's Right to Know. In Senate v. Ermita, the Supreme Court established the point for the public that executive privilege is a right to control confidential executive information. Can the Executive and her alter egos "take the fifth" in a similar manner and refuse to answer questions by invoking executive privilege?

In the coming days, the Supreme Court will be issuing another historic decision on Executive Privilege when it rules on the petition of Romulo Neri to stay his arrest order for Contempt of the Senate. How will they rule? Well, lookit. The Supreme Court itself won't allow Newsbreak to inspect its Public Guest Logbook at Padre Faura in connection with bribery gift allegations, claiming Judicial Privilege of conidentiality similar to Executive Privilege.

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A BLOW TOO SOON? Chief Justice turned paper pundit, Artemio V. Panganiban, hails the Supreme Court for Chavez v. Gonzales, the new decision on public airing of the Garci Tapes. He keeps a very straight face while agreeing with his successor and ponente that

G.R.No. 168338 Chavez v. Gonzalez. "... in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late."

Well, to be kind, this judgment came long before the Last Judgment. But certainly too late for the Garci Recordings to have been used in the Congressional processes of impeachment, which were frustrated no less by the force of numbers and Davide's rigid Once Per Year Rule, as by the UNSETTLED LEGAL STATUS of the Garci recordings. Verily, the real power of the Supreme Court is in deciding WHEN to decide a case, if at all. After Virgilio Garcillano led the House on a merry go round wild goose chase and filed for a petition to bury the Garci Tapes as Poisoned Fruits, the Supreme Court has inexplicably left them in the Deep Freeze for two years. If indeed the challenged acts of the Justice Secretary and NTC were PATENT INVASIONS OF A CONSTITUTIONALLY PROTECTED RIGHT, why so long before striking a blow for freedom? If the Court had said, "Better late than never." there would have been less self-serving gracelessness than claiming they strike a blow for Press Freedom now, years later, at risk of doing so TOO SOON [sic!].

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Reaching deep into ancient Rome and modern France, Manuel L. Quezon III quotes Titus Livy's marvelous explanation even of our current predicament:

"We reached these last days when we could endure neither our vices nor their remedies. The result of such a paralysis is neither the extermination of vice nor the institution of any actual remedies. It results in no real peace, but instead, mass migration."

It's the lament of every failed ruling class, but one has to admire MLQ3's mournful, but infinite optimism. Read it all.

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Mon Casiple has such a touching faith in the Middle Class. Jessica Zafra ("Mistress of the Universe") is a lil more disdainful.

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BUTCH DALISAY (The Pinoy Penman) names the newest seedlings of Philippine letters...

ON BEHALF of the University of the Philippines Institute of Creative Writing (UPICW), I’m very happy to announce the names of the 12 fellows who will be joining us in Baguio this April for the 47th UP National Writers Workshop. The fellows are: (Fiction in English) Tara Sering, Luis Katigbak, Ian Casocot; (Poetry in English) Ana Maria Katigbak; Vincenz Serrano; (Creative Non-Fiction in English) Rica Bolipata Santos; (Drama in Filipino) Nicolas Pichay, Rodolfo Lana Jr.; (Poetry in Filipino) Roberto Añonuevo, Frank Cimatu; (Fiction in Filipino) Abdon Balde Jr., Allan Derain.

Guess how many are bloggers?

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Manilenyo in Davao posts the whole Harapan episode on YouTube.

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Bruce over at Finance Manila has a nice picture of the Balimbing (as the patron fruit of politics.)

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The Deep Caring blogger doesn't like the planned "Edsa-dification" of the ZTE scandal, especially by the Jesuits. I agree with his cautionary tone about "religious militants" who have agendas beyond the immediate crisis. Jesuits have a lot to answer for...ever since they mishandled another one of their own in 1896. Animo La Salle! (Oops, let's just not mention Ricky Razon!)

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Neil at A Simple Life pens a personal note to Jun Lozada, ang probinsyanong instik.

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The Spy in a Sandwich reminds budding writers of a literary contest open to all being sponsored by the UP Institute of Creative Writing. Check out the categories and the prize money:

UP GAWAD CENTENNIAL CONTEST
NOVEL or SHORT STORY COLLECTION in English P200,000.-
NOBELA o KOLEKSIYON NG MGA KATHA (sa Filipino) P200,000.-
POETRY in English P200,000.-
TULA sa Filipino P200,000.-
CREATIVE NONFICTION in English P200,000.-
MALIKHAING SANAYSAY sa Filipino P200,000.-

Deadline for submission is March 31, 2008 5pm. Still time to write that great Filipino novel or poem you've been working on since...

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A Catholic Umma? Caffeine Sparks is showing off her wicked sense of humour!

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There is always so much nostalgia and deja vu over at the Philippine Free Press Online, whose retrospective publishing of articles from a bygone era is invaluable and much appreciated. Here the real Dean Jorge Bocobo and Manuel L. Quezon struggle with Independence.

How the Supreme Court Upheld the Half of EO 464 the Palace Really Needs

Reference: Republic Act 4200 The Antiwiretapping Law
Following is a verbatim reprint of a post at Philippine Commentary on April 24, 2006, enttitled King Solomon Just Cut the Baby In Half which was an analysis of the unanimous Supreme Court decision Senate Vs. Ermita on Executive Order 464. Although it was widely praised as a victory for the Senate by all my favorite somnambulists, the Supreme Court actually upheld the President completely on the matter of executive privilege whilst giving the Senate a hollow victory over a nonexistent feature of the almost-Parliament called the Question Hour! Ed Ermita's threat to use EO 464 in order to frustrate the Senate investigations into the 2007 Garci Recordings, indeed any Senate investigation, --- that threat is not a hollow one. The Supreme Court saw to that last year...But a potentially explosive new development in the saga of the Garci Recordings is the accusation that a MAJOR TELECOM firm was involved in the alleged illegal wiretapping operation of the Intelligence Services of the AFP. Now here the Senate has a chance, because even Chief Executives like Manny Pangilinan and Jaime Augusto Zobel de Ayala are NOT covered by EO 464. I think these telecoms could lose local and international licenses and franchises and become the subject of intense Congressional pressure if these accusations of participation in illegal wiretapping operations turn out to be true.

(PDF) SENATE versus ERMITA -- the unanimous Supreme Court decision penned by Justice Conchita Carpio Morales on Executive Order 464 -- is being hailed by some as a highly balanced decision in which, depending on one's particular sentiments, one can declare victory or defeat for Malacanang Palace. Here is the Solomonic heart of Senate v. Ermita --

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege.

Red-bolding in above quotation is mine -- because it is precisely between Secions 2(a) and 2(b) that King Solomon has cut the Baby in half, in my reading of Senate versus Ermita. Although J. Carpio Morales spent the first 50 pages or so of the decision to motivate the invalidation of Sections 2(b) and (3) of EO 464, there was, in fine, a far greater concession granted to the Palace than the Senate. Since no infirmity, however, can be imputed to Section 2(a), the Supreme Court, by parity of reasoning has accepted, affirmed, upheld and perfected the President's "mere expression of opinion" regarding the nature and scope of executive privilege. The Supreme Court has made every single provision of Section 2(a) Subsections i, ii, iii, iv, and v, the Law of the Land (with a special ponencia by the President as an "Associate Justice") --

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

i. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

ii. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998).

iii. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);

iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December
1998);

v. Matters affecting national security and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002).

I find it ominous that by a unanimous decision the Supreme Court seems to give blanket affirmation to the above enumeration of classes of information. Though based on past cases and decisions, I hope any new assertions of executive privilege still has to be justified separately and on its own merit based on the true needs of public and private interests, which is the only true justification for the assertions of executive privilege in all the cases.

Perhaps to balance its own Sunday Editorial: They Lost It which gloated at Palace Cabinet officials engaged spin, PDI's Monday Editorial: Don't Lose It praises the Decision some more, then gives the Opposition some advice --

One distinctive feature of the Supreme Court ruling, written by Associate Justice Conchita Carpio Morales, is its persuasive approach to the legal issues at hand. It keeps an even keel all throughout, and deploys arguments in such a way that even Palace apologists can read the finding as favoring the administration. Of course, the fact that the court decided unanimously is the persuasive factor par excellence. But the decision's careful balancing act must have helped win support from other justices, and recommends it to almost everyone in the public square.

The opposition must therefore use the ruling as an opportunity to build public consensus about the way we proceed from now on. The political theater of senators browbeating witnesses must come to an end. The spectacle of senators coming in late to hearings and repeating questions already asked must no longer be inflicted on the public. Not least, the practice of senators using the coercive power of the contempt citation as a punitive measure, as in the case of the (admittedly frustrating) testimony of National Security Adviser Norberto Gonzales, must stop. The democratic project is first about process, before it is about power.

Uh...Huh. Hmmm...

WHO REALLY WON?

I think it will depend on whether the Senate takes such advice, or decides to put the Decision itself, and the spin that has been given to it by both the Palace's conscious supporters and those who may have inadvertently given the Decision unwarranted early praise for being "balanced" and "well-reasoned." Just because it was a UNANIMOUS decision may also turn out to be either a good or a bad thing depending on what happens in the real world.

For example, an empirical test of what this Decision really stands for and means, is whether the Senate can in fact call back Secretary Norberto Gonzales to shed light on North Rail and Venable contracts. Or whether all those witnesses originally subpoenaed by the Senate Defense Committee to answer for alleged wiretapping operations of the ISAFP and the Garci Generals' involvement in the 2004 national election cheating in Mindanao.

As time passes and more people look at both the Decision and its consequences, it's true worth will be come evident. And what is the Baby that Solomon has cut in half, if that characterization of Senate v. Ermita is accurate?

I think that Baby is Congress' Power of Inquiry which some regard as the Constitutional embodiment of the Public's Right to Know.

The work I read over the weekend to try and make sense of all this from the perspective and experience of United States Jurisprudence is here in Investigative Oversight by Morton Rosenberg of the Congressional Research Service.

THE QUESTION HOUR DOCTRINE The "balancing of interests" technique that is redolent in the Decision, really centers around a distinction that the Court has seen fit to make between the Congress power of inquiry in aid of legislation which is locates in Article VI Section 21, and the power of inquiry in the discharge of its oversight duty, in Section 22.

Following the Decision's own avowed practice of construing government issuances in a manner that makes them Constitutional, I shall hope that the following quotation from Senate v. Ermita itself will apply in the coming controversies over it. Justice Carpio Morales says of the Arnault case --

The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.

By making the distinction that attendance at inquiries in aid of legislation is mandatory while that at inquiries of oversight are discretionary, and then accepting Section 2(a) in toto as having "no infirmity," has not the Supreme Court merely laid the basis for future exercises of gagging government officials, especially the highest level ones. For like the "chilling effect" of Proclamation 1017 on media, the pusillanimous in the government services, or those merely vulnerable to the pressures of higher authority, have already received the signal to observe omerta in all things. Mike Defensor was right, EO 464 has already "served its purpose."

What will become crystal clear in the next few weeks, I think, is how big a victory for President Arroyo last year's unanimous Supreme Court Decision, Senate vs. Ermita actually was.

Which is why I don't understand the Palace's over-reaction to the sudden Senate re-opening of the investigation into the Garci Recordings.

The President was too quick, I think, to be playing the Terror Card, with "I have a country to run, I have terrorists to fight, I have progress to make..." calling the Senators "titans of hate."

Secretary Ermita's broadcast threat to invoke EO 464 indicates he understands the real meaning of Senate vs. Ermita, and how much power it actually gave the Executive to keep the Legislature's long nose out of their internal affairs. It is not a hollow threat.

TIT FOR TAT with the Senate is what Justice Sec. Raul Gonzalez threatened with seeming relish yesterday, as he announced the intention to "re-open" an investigation into the "unindicted co-conspirators" of convicted US spy, Leandro Aragoncillo. But I think, if I were him, I would indeed let sleeping dogs lay on THAT one. It could backfire and any earnest prosecution has already been poisoned and prejudiced by Gonzalez. There could be some things there that even Raul Gonzalez might not want to come to light, such as US sentiments and evaluations of President Arroyo that might be unpleasant to bring up just now. It might even requiring bring Leandro Aragoncillo to the Philippines which could open a real Pandora's Box.


CAVEAT: I believe that the Garci Recording represent prima facie physical evidence of a crime against NATIONAL SECURITY, involving the illegal interception and recording of conversations between the President of the Republic and other high government officials, as well as private persons. The nature and content of those recorded conversations are irrelevant to the existence of this crime, which can and should be prosecuted under Section 1 of Republic Act 4200 The Antiwiretapping Law:

REPUBLIC ACT NO. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES

SECTION (1A) It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described:

On ANC's noon time Hot Seat today, Rep. Teddy Boy Locsin said that the House Committee Report on the Garci Controversy concluded that "a rogue institution"-- the Isafp -- had wiretapped the Commander in Chief.

The simple fact is that the Garci Recordings and Vidal Doble's testimony are evidence of that crime against national security. It is not widely recognized that RA 4200 the Antiwiretapping Law is explicitly a National Security Statute. Read Section 3:

SECTION (3A) Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security. Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

This is the most satisfying answer to the "Poisoned Fruits Dilemma" that Sen. Dick Gordon tried to use in opposing the renewed Senate probe. He says that if they even touch the Garci recordings the whole Senate could go to jail. But not if you treat the Garci Recordings as evidence in an investigation into crimes against national security, such as bugging the Commander in Chief. This crime does not depend on the detailed nature of the conversations, but merely that they were made without the required Court Orders and oversight.

Supreme Court Decisions As English Grammar and Composition

Because I belong to the tribe of human beings called Physicists (we built the Core of the Internet and invented the World Wide Web!) I am proud to say that the laws of nature and mathematics with which we must work, appear to be in far better shape than the kind of Laws that Supreme Courts write long complicated decisions about. But that may only be because people are a lot more complicated and unpredictable than molecules and neutron stars, especially when Presidents, full of hubris and heedlessness, wantonly violate the Law, and the rest of us can't seem to do anything about it. Not even the Supreme Court!

Yes, despite many revolutionary and wonderful things going on in the world of science and technology, this weblog has been mainly preoccupied in its first few months of life, with politics and the Law, with religions and constitutions, with terror and war, perhaps because there ARE more urgent things for even scientists to care and blog about. Things like freedom of information, speech and assembly, things like freedom of the press, and the right of the public to know what their government has been doing. Things that are the essential ingredients of a free and open democratic society. Without such a society, we cannot even hope to engage in the quintessentially human endeavours like science and education, art and music and poetry and religion, and the other tasks involved in nation building. Most of all, without a fundamental framework of justice and liberty for all, there cannot be peace or stability in any society.

Because of the particular political situation that has arisen in the Philippines under President Gloria Macapagal Arroyo, Constitutional issues have assumed central importance, as the Chief Executive has displayed a willingness to test the limits of Constitutional government in the name of personal political survival. After a year of devastating strife between the President and a determined democratic Opposition composed largely of the President's erstwhile allies and supporters in civil and political society, the President's chickens are coming home to roost, as the Supreme Court chips away at three big bricks of the Palace's stonewall.

Now, the Philippine Supreme Court, the highest court in the land, has been in session in the cool aerie of Baguio City, the Summer Capital. The High Court has displayed an admirable productivity while in the High Country, perhaps by virture of escaping the lowland oven of heat-misery that the Archipelago turns into at this time of the year (which the inhabitants rightly call "summer"--though it is asynchronous with a similar season in the temperate parts of the earth.) But the Panganiban Court during the last month or so has treated the nation to a rare trio of evidently momentous Decisions on three highly controversial matters, two of them six months old but we shall let that pass.

Writing Supreme Court decisions is hard work, Chief Justice Artemio Panganiban told reporters with evident sincerity during a break in the Court's deliberations, "because they must also write with authority."

As writers, webloggers have gotta sympathize with that. CJ Panganiban is probably referring to all the Footnotes that represent the citations and quotations in the bodies of these decisions, from Philippine and other jurisprudence, especially American. But take a look at some statistics about the three recent Supreme Court Decisions:

109 Footnotes in the EO464 Decision (16,405 words)
26 Footnotes in the CPR/BP880 Decision (12,369 words)
158 Footnotes for the PP1017 Decision. (24,625 words)

(For comparison purposes, a typical Op/Ed column in a broadsheet like the Inquirer or Manila Times runs between 500 and 1000 words, shorter at the Manila Bulletin, unbearably longer at the Philippine Star.

One has to marvel too, at the high quality of the writing in the three recent cases decided by the Supreme Court. Statements and arguments in the body of the decision are amply supported by authorities and quotations in the Footnotes. In many ways this is like any well-written weblog, which usually has content backed up by links to material that supports or illustrates the points being made.

Non lawyers should really not be intimidated by Supreme Court Decisions, for they are but a genre of English Composition called rhetorical writing that bloggers are very familiar with.

One thing I have noticed about authorship in the Decisions is that although a single Justice writes the Decision, the work of many hands is quite obvious to people like editors who easily detect changes in the style and tone of the judicial prose from paragraph to paragraph.

It helps to know about the various "rules of construction" that ponentes and justices adhere to, in order to follow many lines of argument and reasoning about precedents and other jurisprudence. There is in some sense, very little that is truly creative or original in any given Supreme Court decision. The tradition in the Philippine Court is apparently that enunciated in Javellana -- to rely heavily on precedent and not to disturb what has been previously decided. Each successive decision must build on the whole superstructure that has already been erected before it in Constitutions, statutes and precedents.

Morphologically speaking, a Supreme Court decision is actually less complicated than a modern weblog! There is a kind of "header" that presents the Petitioners versus the respondents -- a kind of Title and Dramatis Personae Listing as one often finds in plays and other such divertissements. Then there a lengthy Statement of the Facts of the case which ends in a succinct statement of WHAT the issues are exactly, that the rest of the decision will attempt to decide. Then begins a long careful review of laws and previous decisions, and how they apply to the Facts. After weighing and balancing the various rights, privileges, interests and positions of the petitioners and respondents, the Decision comes to its Disposative portion, where judgment is rendered. Their value as additions to the edifice of the Law will be debated for years to come.

But I am happy just to read these Decisions as freshly written essays by intelligent men and women on timely issues of the day, and not have to run into grammatical or spelling errors. Indeed, there is downright fine prose in some of these. We must give the Justices of the Philippine Supreme Court that much. I guess my favorite of the three is Justice Conchita Carpio Morales in Senate v. Ermita.

The Supreme Court Website has done a good job of immediately posting these Decisions of the Court as soon as they are promulgated. Although the Court Administrator Ishmael Kahn usually beats their webmaster to it by contacting mass media with a summary of the decisions, there is still nothing like the text of the decision in toto -- otherwise one falls into the spin cycle, which is furiously active these days.

I took the liberty of referring to these decisions according to the customary practice of calling a decision "A versus B" where A is the first petitioner and B is the respondent. Lo and behold, the resulting case names neatly reflect the substance of the issue at bar in the three recent cases before the Court involving EO464, CPR-BP880 and PP 1017:

(1) SENATE VERSUS ERMITA (EO464) Separation of Powers is the underlying theme of Senate versus Ermita, the unanimous decision (14-0) partially striking down Executive Order No. 464, which was a gag rule on executive department heads in Pres. Arroyo's Cabinet. Executive Privilege and the Legislative Power of Inquiry and Oversight are the separate powers in antagonism. Weighed in the balance are the rights and duties of the Chief Executive to control privileged information known to public and private persons against the "Right of the Public to Know when in Congress assembled." The term "Solomonic Decision" recently made an appearance in the current lexicon because of Senate v. Ermita. I certainly thought King Solomon Cut the Baby In Half. The term "Solomonic Decision" is applicable as follows. Recall that King Solomon proposed to cut an infant in half to settle a dispute between two women claiming it as her child. Seeing that one of them would rather give up her claim than agree to kill the baby, King Solomon awards it to her, reasoning she must be its true mother! In this case, however, the Supreme Court as King Solomon actually does cut the baby right between the (2a) and the (2b). Notice that Senate v. Ermita strikes down Sections 2b and 3 of EO464 thereby declaring as illegal the a priori prohibition on attendance at Congress hearings of virtually all Executive Dept. employees below the level of department heads, but upholds the "President's opinion" on Executive Privilege expressed in Sections 1 and 2a. To the Senate goes the booby prize that they can go ahead a summon all the lower level officials they want to, but Department Heads are now given a negotiating point with which to possibly stymie any call to testify before Congress: Is your hearing, Mr. Senator or Mr. Congressman, in aid-of-legislation or for oversight? So what's the baby? Why the Power of Inquiry itself, which has just been abridged, in my humble opinion, by Senate v. Ermita. And should they be subpoenaed or shanghaied to attend, there is still the whole plethora and rich armamentarium of judicial instruction just rendered to invoke almighty Executive Privilege! Hey, and if they can't agree, they can always go back to Court. Six months of gridlock later ... (you see how this works?). By the way, in the United States jurisdiction, the distinction involving the question hour does not even seem to exist, as power to make laws is seen as being ONE with the power of inquiry, and the power of inquiry as ONE with the power of oversight. (Someone please enlighten us on this...). It seems to make sense that since Executive Privilege covers only privileged information, that privileged information could easily reside in the person of someone in the Section 2b category. Therefore I believe Executive Privilege can potentially cover such persons' testimonies before Congress. Consequently, there should also be no limit to the Congress' power to summon any executive department official to any House or Senate hearing, except for the President. Also, any executive department official, wanting to communicate directly with the House or Senate, should not need the President's permission if it involves personal knowledge of violations of law. Such officials are covered in the US jurisdiction by many so called anti-gag and Whistleblower Protection Laws.

(2) BAYAN VERSUS ERMITA (CPR-BP880) Here the valuable early observation is from Dean Raul Pangalangan of the University of the Philippines Law School, who notes the use of a complex injunction by the Court to force the creation of Freedom Parks in all towns and municipalities. Though the vote was also unanimous (13-0), I think this Decision was big win for Manila Capitol Region chief of police, Dir. Vidal Querol, who revealed on Dong Puno Live on ABSCBN ANC last night thbat it was he who resurrected Batas Pambansa BP880, the Public Assembly Law and used it as the guiding legislation of his mass rally control policy since before the eruption of the Gloriagate scandal last year. That the Court has upheld its Constitutionality was something Chief Querol could justifiably rejoice about and hold up as proof that this Decision went to the Police. The "Calibrated Pre-emptive Response" policy, which was indeed struck down in the decision, was a convenient bone to throw to petitioners, since it was in the final analysis, merely a label used in a Press Release. In the deftest escape of a Supreme Court strikedown ever seen, the Palace has blithely claimed that CPR is really just Maximum Tolerance by another name and that it is BP880 that is important anyway. The Police were able to keep May Day at bay with this Decision firmly on their side. To the extent that leftist mass organizations have adopted a fairly sophisticated system of planning, propagandizing and holding marches and demonstrations as part of their "legal urban struggle" on every issue they engage, they serve as canaries in the mine shaft for the civil liberties of all citizens vis-a-vis police tactics and practice. Given the objectives of the Left in their use of "People Power" --a bus they've several times missed or been thrown off of--I doubt that even the establishment of Freedom Parks will stop them from using peaceful assembly as a weapon against the State in aid of Joma's Maoist revolution.

(3) DAVID VERSUS GLORIA MACAPAGAL ARROYO (PP 1017)
UP Profs. Raul Pangalangan and Harry Roque of the Law School were on tv last night discussing the 11-3 Supreme Court decision on Proclamation 1017. They are both happier about this decision I think, than either of the two above. Here, about the only thing the President is cut some slack on by the Court is her accurate quotation of the Commander-in-chief provision of the 1987 Constitution vesting her with the power to call out the Armed Forces in order to quell lawless violence and only lawless violence as the Court emphasizes. But as Dean Pangalangan points out, in each of the wherefores and howevers that follow, the Supreme Court strikes down as unconstitutional and illegal a whole series of acts and pronouncements allegedly done in obedience to PP 1017, the February 24 presidential proclamation declaring a state of national emergency and recalling Marcos' martial law era behavior. In fact a I learned a new term to describe such Constitutional aberrations: ULTRA VIRES which translates to BAD GURRLL! BAADD GURRLLL!

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations.

We had to wait months for this? Heck the bloggers covered most of this ground way back in February. Here's where we were in early March when I predicted Proclamation 1017 would be rendered moot and academic not by the FIAT of the Supreme Court, but by their long delay before deciding such a "transcendental issue." Although the Court says at the beginning of its summation that

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed “if the May 1 rallies” become “unruly and violent.” Consequently, the transcendental issues raised by the parties should not be “evaded;” they must now be resolved to prevent future constitutional aberration.

I would be happy to admit that my prediction was off, and happily rejoice with Raul and Harry, except for the way that Rick Saludo seemed to be sneering at everybody during his interview on ABSCBN ANC last night and the generally remorseless tone of Bunye, Gonzalez, Ermita and the rest of the unrepentant President's men. Yesterday the newspaper headlines carried the Palace's show of open defiance to the EO464 ruling, as three Cabinet officers snubbed a Senate hearing in aid of legislation.

As if nothing's happened and they haven't been slammed by the Supreme Court for screwing the pooch all along.

As for the Supreme Court, it's still got a long, long way to go before Moral Authority sets in to back up its Decisions and makes them effective in the world of molecules and human beings.

THAT is not automatic you know!

King Solomon Just Cut The Baby In Half

(PDF) SENATE versus ERMITA -- the unanimous Supreme Court decision penned by Justice Conchita Carpio Morales on Executive Order 464 -- is being hailed by some as a highly balanced decision in which, depending on one's particular sentiments, one can declare victory or defeat for Malacanang Palace. Here is the Solomonic heart of Senate v. Ermita --

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege.

Red-bolding in above quotation is mine -- because it is precisely between Secions 2(a) and 2(b) that King Solomon has cut the Baby in half, in my reading of Senate versus Ermita. Although J. Carpio Morales spent the first 50 pages or so of the decision to motivate the invalidation of Sections 2(b) and (3) of EO 464, there was, in fine, a far greater concession granted to the Palace than the Senate. Since no infirmity, however, can be imputed to Section 2(a), the Supreme Court, by parity of reasoning has accepted, affirmed, upheld and perfected the President's "mere expression of opinion" regarding the nature and scope of executive privilege. The Supreme Court has made every single provision of Section 2(a) Subsections i, ii, iii, iv, and v, the Law of the Land (with a special ponencia by the President as an "Associate Justice") --

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

i. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

ii. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998).

iii. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);

iv. Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December
1998);

v. Matters affecting national security and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002).

I find it ominous that by a unanimous decision the Supreme Court seems to give blanket affirmation to the above enumeration of classes of information. Though based on past cases and decisions, I hope any new assertions of executive privilege still has to be justified separately and on its own merit based on the true needs of public and private interests, which is the only true justification for the assertions of executive privilege in all the cases.

Perhaps to balance its own Sunday Editorial: They Lost It which gloated at Palace Cabinet officials engaged spin, PDI's Monday Editorial: Don't Lose It praises the Decision some more, then gives the Opposition some advice --

One distinctive feature of the Supreme Court ruling, written by Associate Justice Conchita Carpio Morales, is its persuasive approach to the legal issues at hand. It keeps an even keel all throughout, and deploys arguments in such a way that even Palace apologists can read the finding as favoring the administration. Of course, the fact that the court decided unanimously is the persuasive factor par excellence. But the decision's careful balancing act must have helped win support from other justices, and recommends it to almost everyone in the public square.

The opposition must therefore use the ruling as an opportunity to build public consensus about the way we proceed from now on. The political theater of senators browbeating witnesses must come to an end. The spectacle of senators coming in late to hearings and repeating questions already asked must no longer be inflicted on the public. Not least, the practice of senators using the coercive power of the contempt citation as a punitive measure, as in the case of the (admittedly frustrating) testimony of National Security Adviser Norberto Gonzales, must stop. The democratic project is first about process, before it is about power.

Uh...Huh. Hmmm...

WHO REALLY WON?

I think it will depend on whether the Senate takes such advice, or decides to put the Decision itself, and the spin that has been given to it by both the Palace's conscious supporters and those who may have inadvertently given the Decision unwarranted early praise for being "balanced" and "well-reasoned." Just because it was a UNANIMOUS decision may also turn out to be either a good or a bad thing depending on what happens in the real world.

For example, an empirical test of what this Decision really stands for and means, is whether the Senate can in fact call back Secretary Norberto Gonzales to shed light on North Rail and Venable contracts. Or whether all those witnesses originally subpoenaed by the Senate Defense Committee to answer for alleged wiretapping operations of the ISAFP and the Garci Generals' involvement in the 2004 national election cheating in Mindanao.

As time passes and more people look at both the Decision and its consequences, it's true worth will be come evident. And what is the Baby that Solomon has cut in half, if that characterization of Senate v. Ermita is accurate?

I think that Baby is Congress' Power of Inquiry which some regard as the Constitutional embodiment of the Public's Right to Know.

The work I read over the weekend to try and make sense of all this from the perspective and experience of United States Jurisprudence is here in Investigative Oversight by Morton Rosenberg of the Congressional Research Service.

THE QUESTION HOUR DOCTRINE The "balancing of interests" technique that is redolent in the Decision, really centers around a distinction that the Court has seen fit to make between the Congress power of inquiry in aid of legislation which is locates in Article VI Section 21, and the power of inquiry in the discharge of its oversight duty, in Section 22.

Following the Decision's own avowed practice of construing government issuances in a manner that makes them Constitutional, I shall hope that the following quotation from Senate v. Ermita itself will apply in the coming controversies over it. Justice Carpio Morales says of the Arnault case --

The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.

By making the distinction that attendance at inquiries in aid of legislation is mandatory while that at inquiries of overshight are discretionary, and then accepting Section 2(a) in toto as having "no infirmity," has not the Supreme Court merely laid the basis for future exercises of gagging government officials, especially the highest level ones. For like the "chilling effect" of Proclamation 1017 on media, the pusillanimous in the government services, or those merely vulnerable to the pressures of higher authority, have already received the signal to observe omerta in all things. Mike Defensor was right, EO 464 has already "served its purpose."