Thursday, September 28, 2006

CON-ASS and the Political Question Doctrine

Changing the Charter, i.e., CHACHA is governed by the following Article:

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.
CON-ASS or the "Constituent Assembly" is really just the Congress itself proposing amendments to OR revisions of the Constitution for ratification by the citizenry at plebiscite under Section 1(1) above. The big question is over the clause "upon a vote of three-fourths of all its Members."

Today the incumbent Members of Congress number 23 Senators (since Noli was elected Vice President, his 24th senatorial seat is vacant); 200 regular District Congressmen; and 36 Party List Representatives. Thus "three fourths of all its Members" comes to about 195. House leaders have claimed that with 196 votes (even if all are from the Lower House) the Congress may propose amendments and revisions for plebiscite as set forth in Section 1(1) of Article XVII.

The Senate, as it has in the case of People's Initiative, will of course question the matter in the Supreme Court, where many believe the bicameral structure of the Congress will force the interpretation of Section 1 to mean "upon a vote of three-fourths of both Houses of Congress voting separately"--the same formulation as in the US Constitution for example (though their threshold is only two thirds).

Let me call that future prospective landmark Supreme Court case, Senate of the Philippines Versus House of the Philippines.

Can one even begin to imagine the enormity and gravity of such a case as SENATE vs. HOUSE over an interpretation of Section 1(1) of Article XVII?

The difficulty of adjudicating the case for the Supreme Court comes from several legal, political and jurisprudential issues:

BICAMERAL VOTING: To side with "bicameralism" and the Senate, the Court would have to construe the words of the Constitution to mean something almost entirely opposite to its plain and common meaning to most reasonable persons. For there is truly nothing ambiguous or imprecise about the wording "upon a vote of three fourths of all its Members." Yet to uphold bicameralism the Court would have to decide that these words do NOT "actually" mean what they plainly say but that they "actually" mean "upon a vote of three fourths of the Senate and House voting separately." The Court would have to go into a long, involved and circuitous justification of why the provision does not mean what it plainly says. There are strong arguments on the other side. While it is true for example, that ordinary laws are passed by Congress upon a majority vote of both Houses, a PROPOSED amendment to or revision of the Constitution must still be ratified and approved upon a majority vote of the People in a plebiscite. Therefore such proposals cannot be treated like ordinary laws.

UNICAMERAL VOTING: But if the Court were to side with "unicameralism" in an actual controversy with the Lower House, the Court could be opening the door to the abolition of the Senate, since in point of fact, the proposed charter change is to shift to a Unicameral Parliamentary form of government and would have that effect upon ratification in a plebiscite.

It is entirely possible the Court will consider the matter in the context of the Political Question Doctrine. These considerations also foretell of a possible conundrum to be discovered by the Court in its future deliberations upon the future case, Senate vs. House. A conundrum in which there is that common element of a ratification in a plebiscite. Ratification and plebiscite. Those are the Abracadabra words that summon the Genie of the Political Question Doctrine

Justice Vicente V. Mendoza, in his Annotation to Javellana vs. Executive Secretary (SCRA 50 March 31, 1973) states:
"Not all constitutional questions are in the keeping of the Court. For Mr. Justice Brandeis, a liberal judge by general consensus, "the most important thing we decide is what not to decide." (P.A. Freund, On Law and Justice, 1968). His conception of the judicial office as Prof. Freund has noted, proceeded fundamentally from an awareness of the limits of human capacity, the fallibility of judgment, the need of husbanding what powers one had, of keeping within bounds if action was not to outrun wisdom. In the Ratification cases, what in the end prevailed was, I believe, a view of the judicial function that is somewhat akin to Brandeis' self-denying ordinance."
If the Supreme Court decides that there is NO NEED to decide what Section 1(1) means other than what the text plainly says, "...upon a vote of three fourths of all its Members..." then of course the common meaning will stand.

And so will CON-ASS.

Wednesday, September 27, 2006

People's Initiative: Amendment, Revision and the Political Question

In considering the Sigaw ng Bayan Petition that is now before the Supreme Court, and the Proposal for Unicameral Parliamentary system, I have come to a number of preliminary formulations that may have some bearing on the Supreme Court case that was the subject of yesterday's Oral Arguments at Padre Faura:

CONSTITUTIONS are coterminous with the POLITY or political regime that establishes them as the "basic law of the land" (which may be Republics or Dictatorships or other forms of government.)

REVISIONS produce new Constitutions and establish new political regimes. AMENDMENTS do not.

SUPREME COURTS are coterminous with the Constitution that creates and establishes them to be the authority that interprets its meaning as the Basic Law and decides cases brought before it.

POLITICAL QUESTIONS are NON-JUSTICIABLE cases that are beyond the jurisdiction, competence or ability of even the Supreme Court to decide. For example, Supreme Courts cannot logically question the legitimacy of the Constitution that created them. The so-called Political Question Doctrine holds that it would be a meaningless, inconsistent, contradictory and unacceptable self-referential invalidation for a Supreme Court to even take up the validity or legitimacy or Constitutionality of the revolution, coup d'etat, or other political process that established that Constitution and the Court.

I believe that as a general rule cases and controversies arising from AMENDMENTS to the Constitution are JUSTICIABLE and not POLITICAL QUESTIONS. But the circumstances, processes and politics that establish NEW Constitutions, including REVISIONS, are beyond the jurisdiction of even the Supreme Court, whose very existence is extinguished with the OLD constitution. There are other cases that are clearly nonjusticiable, such as those that involve the Separation of Powers doctrine.

In order to develop a useful distinction between the technical terms AMENDMENT and REVISION in the 1987 Constitution, I think it helps to identify each of the different Philippine Constitutions in our history and associate it with the Republic or polity it established. By my count, we have had four of them since Spain left: The Malolos Constitution and the First Philippine Republic (June 12, 1898), which was conquered and "colonized" the by United States; the Commonwealth Constitution and Second Philippine Republic (1935); the Marcos Martial Law Constitution (1973) and the "Third Republic" which featured a puppet unicameral Parliament; the Cory Constitution (1987) and the present "Fourth Republic" of the Philippines, counting by the recognized Constitutions.

Clearly, Constitutions are COTERMINOUS with readily identifiable political regimes in history. Above, I have identified four such regimes and their unique Constitutions. This identifcation is the basis of the distinction I wish to propose between AMENDMENT and REVISION.

Let me DEFINE each of the four Constitutions mentioned above as a REVISION of the Constitution that came before it, or whatever served as the "basic law of the land" in the previous political regime that each one supplanted. If we agree to this definition then we may say that an AMENDMENT is any other change to the basic law of the land that does not establish a new political regime as they did.

How useful is the above distinction?

Basic to the present controversy is the following Article of the 1987 Constitution which clearly restricts the REVISION of the Constitution to elected representative bodies: only Congress acting as a Constituent Assembly or a Constitutional Convention (Section 1)--but not for the innovative People's Initiative mode (Section 2).

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.
Under the above terminology, the People's Initiative proposal to adopt a Unicameral Parliament is an AMENDMENT.

It has been argued that the proposal is tantamount to a REVISION of the charter and does not constitute an AMENDMENT to it because it represents such a major change in the form of government. (This of course is based on a different, UNKNOWN definition of the two terms.)

Personally, I do not support a Unicameral Parliamentary system because it diminishes the freedom of the people to choose their elected representatives and leaders. Because of that, I also do not think the proposal will ever be ratified by the people. It is a reduction of the democratic space, a reduction of the people's power and a proportional increase for the politicians.

But I also do not believe that the degree of the proposed change necessarily means it is tantamount to a REVISION of the Constitution. Consider the United States Constitution. When it was first ratified by the American people it did not contain a Bill of Rights! No Constitutionally guaranteed rights to freedom of speech and religion, or of expression, or of the Press, etc.

The First AMENDMENT to the U.S. Constitution guarantees the freedoms of speech, freedom of religion, press, petition and assembly. (I think that’s pretty major!)

The Second AMENDMENT is the right to bear arms.

The Fourth AMENDMENT forbids illegal searches and seizures.

The Fifth AMENDMENT is the right against self incrimination and to due process.

In fact, the first TEN AMENDMENTS of the U.S. Constitution are together called the BILL of RIGHTS.

The 13th AMENDMENT abolished slavery! But it cannot be denied: all 27 AMENDMENTS to the US Constitution are "major" in their own way.

When they were ratified, it was not considered a REVISION, which is contemplated but has never been done to the US Constitution. A REVISION results in a new Constitution and has only been done by the States--over two hundred times among them.

The Supreme Court has defined the issues to be decided in adjudicating the Sigaw ng Bayan petition:
1. Whether petitioners Sigaw ng Bayan, through lawyer Raul Lambino, and ULAP, through Bohol Governor Erico Aumentado, are the proper parties to file the petition in behalf of the more than six-million voters they say signed the proposal to amend the Constitution;

2. Whether the petition for a people’s initiative filed before the Comelec complied with Section 2, Article 17 of the Constitution;

3. Whether the Supreme Court's decision in Santiago v. Comelec in 1997 bars the present petition;

4. Whether the court should re-examine the ruling in Santiago v. Comelec that there exists no enabling law allowing a people's initiative to amend the Constitution;

5. Whether, assuming that Republic Act 6735 or the Initiative and Referendum Act is sufficient, the petition for initiative filed with the Comelec complied with the law’s provisions;

6. Whether proposed changes constitute an amendment or revision of the Constitution;

7. Whether the exercise of a people’s initiative to propose amendments to the Constitution is a political question to be determined by the people, and;

8. Whether the Comelec committed grave abuse of discretion in dismissing the petitions for initiative filed before it.

MLQ3 (Cabinet Wars) thinks that the "booby trap" lies in the POLITICAL QUESTION item in #7.

It is widely recognized in all jurisdictions that there exist certain issues that a Supreme Court cannot actually decide or rule upon. Such “nonjusticiable cases” arise because of the separation of powers, and in my opinion, because Supreme Courts are COTERMINOUS with Constitutions. In other words, when one Constitution is REPLACED by a new Constitution, all the INSTITUTIONS that were created and have legitimacy under the old Constitution also disappear.

Thus in cases of CHACHA, such as the Martial Law Plebiscite and Ratification cases in the early 70s, the OLD Supreme Court could not rule on the validity of such processes without BECOMING the NEW Supreme Court and thus making the original issues MOOT and ACADEMIC. It cannot uphold its own existence and legitimacy without doing the same for the new dispensation.

Why is any of this important now?

I think Questions #6 and #7 come one after another for a logical reason.

IF the people’s initiative to go Unicameral Parliamentary is an AMENDMENT (and therefore Constitutional under Section 2 Art. 17) then the 1987 Constitution will remain in force with a First Amendment attached to it, assuming it is approved on plebiscite. But since the Supreme Court is coterminous with the Constitution, IF the PI is a mere amendment, the Court CANNOT avoid ruling on Constitutional issues and cases that arise around it on the basis that it is a political question.

IF, however, the PI is a REVISION, then by definition there will be created a new Constitution, the Supreme Court disappears, and all sorts of “political questions” can arise that the Court is forced to avoid.

Which is why Question #7 actually depends on the answer to Question #6!

Tuesday, September 26, 2006

The Supreme Court Tackles Charter Change

The 1987 Philippine Constitution's Article XVII (Amendments and Revisions) contains 4 Sections -- all of them a source of boiling controversies in the present hothouse atmosphere of impending Charter Change.
Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.
Caveat: By requiring "a vote of three-fourths of all its Members" in order for the Congress to propose amendments or revisions, Section 1 seems to ignore the bicameral structure of the Congress, where indeed, even as simple a law as changing the name of a street requires the separate approval of the Senate and the House. The analogous provision in the United States Constitution (Article V - Amendments) reads,
US Constitution: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments..."
The matter has taken on some importance because Arroyo allies under Jose de Venecia claims to have the required three fourths, all from the Lower House, and threatens to convene a constituent assembly or CON-ASS with or without Senate participation. Meanwhile, the Constitutional Convention route to charter change has been supported by the Senate and civil society groups, notably, the Roman Catholic Church. Note that Section 1 empowers both Congress and any Convention to undertake either amendments or revisions, but defines neither term, an omission that becomes critical in Section 2...
Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.
ORAL ARGUMENTS at the Supreme Court are scheduled for today on the Sigaw ng Bayan petition for People's Initiative to revise the Constitution and change the form of government from Presidential-Bicameral to Parliamentary-Unicameral. In the landmark 1997 precedent, Santiago vs. Comelec the High Court adjudicated a controversy over the first attempt at people's initiative. There, a slim majorityJustices of the Supreme Court, concurred with Chief Justice Hilario G. Davide, Jr. 8 to 6 (with one abstention) to bar the attempt of PIRMA because the obvious infirmity that proponents had not met the explicit requirement of the Constitution for 12% of the registered voters to back their proposed amendment before it can be put to a plebiscite for ratification. Actually the Court was unanimous on that conclusion and reason, but the Decision went further.

Eight of the fifteen sitting Justices concurred with Chief Justice Hilario Davide whose ponencia concluded:
CONCLUSION (Santiago vs. Comelec 1997)

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength.Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

WHEREFORE,judgment is hreby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED against private respondents.

Resolution on the matter of contempt is hereby reserved.


Narvasa, C.J.,Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres Jr., JJ., concur.

Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.

Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno, Francisco and Panganiban.

Puno, Vitug, Francisco and Panganiban, JJ., has separate opinions.

With the abstention of Padilla, the vote in 1997 was indeed close at 8 to 6, and today, only two of the Justices from the 1997 Court are still around: Puno and Panganiban, whose separate opinions are worth reviewing along with those of Vitug and Francisco. All those who dissented agreed with the majority on the insufficiency of the Pirma initiative because it did not have the required 12%. But they did not agree that RA6735 was so inadequate as to be declared infirm for the purpose of implementing the Constitutionally sanctioned right of the people to initiate Charte changes direclty.

The Court had ruled as "INADEQUATE" Republic Act. 6735, the Referendum and Initiative Act which was crafted by then Congressman Raul S. Roco precisely to implement the Constitutional provision on people's initiative. Based on this, the decision consequently voided portions of the Comelec's implementing rules and regulations. Without these additional rulings in Santiago vs. Comelec, there would have been nothing to prevent proponent PIRMA, Delfin and their patrons from perfecting their initiative by eventually getting the required 12% of voters without the Comelec's help, and refiling their petition with Comelec to schedule a Plebiscite. That possibility was effectively prevented because Congress had to pass a new enabling law that would again be subject to judicial review for "sufficiency" and then Comelec would have to draft new IRRs based on it.

This particular turn in the Davide ponencia killed two birds with one stone. It obviously put a stop to Pirma's initiative. It also made it unnecessary for the Court to tackle the truly problematic issue of what constitutes a REVISION and what an AMENDMENT when it comes to changing the Constitution.

In retrospect, the 1997 Pirma Petition for People's Initiative was doomed to failure. At the time of the "initiatory Delfin petition" the proponents simply did not have the required number of signatures. All six of those who dissented CONCURRED with the majority on this point. There was actually unanimous agreement in the Court that the proponents of did not meet the explicit requirements of the 1987 Constitution for a People's Initiative to amend the Constitution. It is most unfortunate that the 1997 Supreme Court Decision Santiago vs. Comelec decided not to tackle the difference between "amendment" and "revision" of the Constitution.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of the elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.
That task is now left to the present Court.

The main sticking points in Art XVII Sec. 2 are these:

(1) People's initiative is limited to AMENDMENTS TO, and cannot undertake REVISIONS OF the Constitution;

Caveat: In the American jurisdiction, the US Constitution has never been REVISED although there has been a rich history of some 27 AMENDMENTS. But there appear to have been over 200 State Constitutions adopted over the centuries of democratic practice. All kinds of systems, theories and practices are to be observed in this area, but in general it seems Americans consider a REVISION to occur when the entire Consitution is REPLACED by a new one, generally as the result of constitutional conventions which are often convened automatically at periodic intervals without the special action of elected legislatures to consider charter change. But that has only ever occured at the State levels. Although the US Constitution has by this definition NEVER been revised, can we say the same thing for the Philippine Consitution. By my count there have been FOUR constitutions: Malolos (1898-99); Commonwealth (1935); Marcos(1972); and the Freedom Constitution (1987). The terminology used by some is to say that a REVISION of the Constitution results in a new VERSION of the Charter. Under this rubric, it would not seem that the Sigaw ng Bayan proposal requires the adoption of a whole new Constitution and is therefore in the nature of AMENDMENT.

(2) To have a plebiscite, 12% of voters must support the amendment with 3% of each district represented;

Nota bene: NOT having fulfilled this requirement by the time the DELFIN PETITION was filed with Comelec in December 1996 was the fatal flaw in it. The Supreme Court was UNANIMOUS on this point in 1997, as all four Separate Concurring and Dissenting Opinions show. Puno, Vitug, Francisco and Panganiban.

(3) There must be an enabling law.

The Majority in 1997 decided 8-6 that RA 6735 (Roco's Referendum and Initiative Law) was INADEQUATE. But in his Separate Opinion, Justice Vitug did not think it was right to rule on the SUFFICIENCY of RA6735 in the context of the unperfected but perfectible PIRMA initiative.
VITUG: Pending a petition for a people's initiative that is sufficient in form and substance, it behooves the Court, I most respectfully submit, to yet refrain from resolving the question of whether or not Republic Act No. 6735 has effectively and sufficiently implemented the Constitutional provision on right of the people to directly propose constitutional amendments. Any opinion or view formulated by the Court at this point would at best be only a non-binding, albeit possibly persuasive, obiter dictum.
Chief Justice Artemio Panganiban's separate opinion has already been discussed at Philippine Commentary where the money quote is:
PANGANIBAN: Under the above restrictive holding espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present.

Monday, September 25, 2006

Erap's Filial Duty

I agree with MLQ3, writing in PDI this morning (Referendum on Estrada) that Erap should run for the Senate in 2007:
He should run for the Senate. The government cannot stop him from campaigning from his detention house. And since his trial has become a hostage to the political survival of the government, he owes it to himself and his supporters—and a country still divided—to be judged according to the jury of millions. Though in the end I think the best justification for this route is a humanitarian one: which is, that Doña Mary Ejercito deserves the chance to see the people render an unquestionable judgment on her son.
I think it is Erap's filial duty not only to his mother, but to all the Filipino people, both his supporters and otherwise, to end the embarrassing and shameless charade that the Supreme Court has put this country through since 20 January 2001 and his subsequent arrest and detention. The High Court would rescue garapatas on the PCGG's hide, like Rick Abcede, but a democratically elected President they would allow to rot in jail for over four years running. And of course the case has not even reached their dock to dark their door. It is a chicken that must never be allowed to roost where Hilario Davide laid the egg of supreme judicial ERROR on 20 January 2001.

CAN ERAP GET A FAIR TRIAL? SPEED, seems to me, an essential ingredient of a Fair Trial. If the man was DEPOSED as President by the illegal ACT of a Chief Justice peremptorially and unconstitutionally swearing in the Vice President and he has been under arrest for over four years, why can't he be convicted, sentenced and everyone freed of the whole Edsa 2 thrombosis? It is silly, as some people claim that it is because Erap himself is "DELAYING" his trial. The simple truth is that the Supreme Court cannot fairly try Erap even after the Sandiganbayan is finished with him. That point will never be reached because they know the impossibility of their ever handling the case of Joseph Estrada. It is not within their legal, moral or intellectual JURISDICTION to reverse the existence of a case that the Supreme Court cannot try!

Why can't the Case of Joseph Estrada be fairly tried by the Supreme Court? Why, because they have already essentially PREJUDGED him in the two unreversed Decisions of Estrada vs. Arroyo (March, 2001) and Estrada vs. Desierto (April, 2001).
These cases ABSOLVE the Supreme Court of any participation or culpability in the events of Edsa Dos, yet the Justices of the Supreme Court were the PRINCIPAL PLAYERS in that historic event. To acquit Erap would mean to convict Davide and reverse these decisions; it would logically necessitate another regime change and the overthrow of the Supreme Court itself. So can Erap get a fair trial? It is absurd to think so.

JURY OF MILLIONS: Erap's Case is really and literally Supreme Court Vs. President of the Philippines. But as we all know there IS no Higher Court to adjudicate such a case! Or is there??? Of course there is: democratic elections, the Court of the people's sovereignty, what MLQ3 calls, the "jury of millions."

LET THE PEOPLE JUDGE I also like the idea of Erap running (even for dog-catcher of San Juan!)because I believe Erap and GMA can make poetic justice together (the kind that happens in matter-anti-matter collisions!. If Erap threw his hat into the ring for 2007, he could energize what appears to be a demoralized and fragmented opposition. I think that keeping Erap in jail all these long years has been the most brilliant and devious part of the Macapagal-Arroyo strategy for hanging on to power because it's like keeping the Opposition's champion in a perpetual state of suspended animation as a detained, accused Plunderer on trial for heinous crimes! Erap needs to free himself, but that can only be done at the ballot box.Besides, only Erap could lead an Opposition that could realistically defeat the Palace (with its stranglehold on the Government and Treasury), in the democratic contests up ahead, whether it be 2007 national and local elections, or a Plebiscite for a new Constitution and a change in the form of government.

Wednesday, September 20, 2006

Even the Good Milk Spoils

The Supreme Court has issued a Resolution providing guidelines for the upcoming hearing on the habeas corpus petition on behalf of arrested PCGG Chairman Camilo Sabio. The Court identifies four issues:
1. Whether the publication of the Senate rules of procedure governing inquiries in aid of legislation is essential to effectivity and, if so, whether the rules have been published and if posting these on the Senate's website constitutes sufficient publication;

2. Whether the Senate committees on government corporations and public enterprises, and public services are vested with the power of contempt and can issue warrants of arrest;

3. If Section 4 (b) of Executive Order 1, or the PCCG charter, is constitutional; and

4. If the Senate Committee complied with the requirements set forth by the court in its ruling on Executive Order 464, the Malacañang order requiring government officials to get Presidential clearance before appearing before congressional inquiries.

In February, 1986 when Corazon Aquino signed Executive Order No. 1 creating the Philippine Commission on Good Government (PCGG) I bet she had no idea that the Commission would become part of the spoils of electoral victory for succeeding administrations--to be awarded to loyal political allies and supporters (snivelling and otherwise). Today, twenty years later, we see the truism that even the good milk spoils under the corruption of absolute power. We can see that corruption at work in the televised hubris of such persons Chairman Camilo Sabio and Commissioner Rick Abcede, GMA's appointees to the PCGG, who claim absolute immunity from accountability as public officers by quoting a provision in Cory's Executive Order:
(b) No member or staff of the commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.
As the first chairman of the PCGG, former Sen. Jovito Salonga stated the other day, the present-day members of the PCGG cannot use this provision to evade testifying before the Congress. But standing on this provision in Executive Order No. 1 --which was indubitably supervened after the plebiscite ratifying the 1987 Philippine Constitution -- and agreeing to force the issue in the Supreme Court via an habeas corpus petition, Chairman Camilo Sabio may see it all blow up in his prideful face. The venerable Joker Arroyo, an erstwhile ally of the President, will argue before the Supreme Court on behalf of the Senate, which is still holding Sabio under arrest and actively hunting down the other fugitive Commissioners. Early today, word is that at least two of the PCGG commissioners have sent surrender feelers to the Senate Sergeant at Arms. Offered his freedom from detention at the Senate Building infirmary in exchange for "his word of honor to return to the Senate hearings" Camilo "the Wise" Sabio has refused Gordon's offer, proclaiming that "Only the Supreme Court can set me free." Ha! Those could be Sabio's famous last words

Senator Dick Gordon deserves the public's support in the work being done by the Senate Committee on Government Corporations and Public Enterprises in ferreting out the corruption within the PCGG itself, which over the years, has become a feeding trough for the political appointees. In the era of Gloria Macapagal Arroyo, the evil that Marcos did has not been undone. It has been rebooted in a Twilight Zone kind of program in which chest-thumping do-gooders like Sabio are actually masking a ghoulish operation of well, replundering the stolen loot!

Senator Gordon is quite right that the PCGG cannot hold itself above the law, above accountability and transparency on the part of public officers as the Constitution requires. It would reduce the Constitution to absurdity if the Supreme Court were to somehow rule that the provision cited by Sabio in Executive Order No. 1 is still in force!

IN AID OF LEGISLATION The most wanted PCGG fugitive is of course the aforementioned Commissioner Rick Abcede, recently become notorious for being caught on video dancing (waltzing) with Madame Imelda Marcos. Speaking on the phone on Strictly Politics with Pia Hontiveros last night on ANC television, Rick Abcede excuses that rather embarrassing episode by claiming that he, Rick Abcede, is a "leader who means business" -- he claims to be tired of the accusations against him, who after all, claims to have joined the PCGG last June, 2005 is "only trying to get the Marcos money back for the people." And "Why?" Rick Abcede asks, doesn't the Senate investigate the previous commissioners of the PCGG instead of the present members?"

Oink! Well, Abcede has been caught with his snout in the trunk of a brand new Toyota Camry as just one of the special, illegal perks being alleged by the Senate committee investigating the PCGG feeding trough, so he's gotta mean business. But the best he could do was to lamely trot out the argument that Gordon's committee hearings are not about some pending legislation, hoping to catch some wind from the "in aid of legislation arguments." On this point, Pia Hontiveros' other guest, Dean Raul Pangalangan jammed the ball back in Abcede's face with the observation that the Supreme Court rulings on the matter of EO 464 do not augur well for the PCGG's case before the Supreme Court.

Well, we shall see just how wise Camilo Sabio really is, or, if like Abcede, he's doomed to defeat on this one.

Tuesday, September 19, 2006

Apologize? For what and to whom?

The Catholic Bishops Conference of the Philippines (CBCP) says the strangest and most paradoxical things about Pope Benedict's Regensburg Lecture.
"We wish to invite our brothers and sisters of whatever religious sentiment to read the said address that is readily available (in the website). Reading the address in the full context will greatly help in understanding the message of Pope Benedict XVI, " the CBCP urged.

"It may be good to note that upon objectively reading said address, one realizes that it was not the intention of the Holy Father to undertake a comprehensive study of the jihad and of Muslim ideas on the subject -- much less to offend the sensibilities of the Muslim brothers and sisters," it said.

"On the contrary, the Holy Father warns especially the Western culture to avoid "the contempt for God and the cynicism that considers mockery of the sacred to be an exercise of freedom," the CBCP said.

"A just consideration of the religious dimension is, in fact, an essential premise for a fruitful dialogue with the great cultures and religions of the world," it added.
I say strange and paradoxical because the CBCP not only denies the fact that Benedict WAS addressing "jihad and the Muslim ideas on the subject" when he condemned violent conversion as alien to the nature of religion. But what is worse is that the CBCP claims the actual target of the Holy Father's criticisms was actually...ta dah!...cyncial Western culture! Someone is bending over awful far to be politically correct...or at least consistent with the equally erroneous position someone took during the Danish cartoon controversy!

But not all Catholic Bishops are constrained to conform to the prevailing cant of "responsible papacy" or "responsible journalism"...

thinks it is a critical time for the Pope but uprightly defends him:
"Muslims should not exaggerate what fault they may see in the Pope’s speech. Untempered rage and violent reprisals may only show the rest of the world that the words of the emperor quoted by the Pope have indeed some justification. Once the Pope has explained that it was not his intention to hurt their feelings, and once he has made clear that he does not share in the exaggeratedly negative assessment of the person he cited, it would advance the cause of mutual understanding and peace if the Muslims who felt hurt would graciously accept the Pope’s gesture."
In the demagagosphere, the heavyweight Catolico cerrados have not yet weighed in (dumbstruck?). But the atheists are speaking up...Manila Standard columnist ANTONIO C. ABAYA ("Papal Bull") describes the reaction in the "Muslim press" as "predictably scathing" and immediately quotes the BBC. How apt! Abaya ends up wagging his finger at the Pope by praising Saladin's recapture of Jerusalem, writing:
By contrast, when Saladdin recaptured Jerusalem from the Crusaders in 1187, the 60,000 Christian survivors of the battle were freed on ransom from the English king; captured Christian defenders were reunited with their wives and daughters; Christian pilgrims were guaranteed safe passage to and from the Holy Land.

Muslims feel they do not need any lectures on right conduct and morals from any Christian leader.

(And so the interfaith dialogues begin...just as President Gloria Macapagal Arroyo suggested during her recent trip to Europe...Seems at least that the Pope has obliged her at Regensberg!)

The Jakarta Post's KORNELIUS PURBA,an Indonesian Catholic asks,
As the supreme leader of the Catholic church, was it wise to discuss such a sensitive issue amid the growing distrust between Christianity and Islam, regardless of the truth or untruth of his observations? It will be more difficult now to argue there is no "clash of civilizations" between the West (Christianity) and Islam. It will also be more difficult for the Catholic church to continue an effective interfaith dialog with Islam if Muslims suspect the sincerity of the church's leader."
The difficulty of such a dialog, if it is even at all possible, cannot be avoided by sweeping the substantial issues under the rug. If anything I must agree with the New York Sun's
DANIEL JOHNSON ("Understanding Benedict")
who writes:
"By now, the answer to these questions is clear: churches firebombed in the West Bank and Gaza, a nun murdered in Somalia. Such persecution is, alas, routine in many Muslim lands, and Catholics are not the only victims. But it is clear that Muslim leaders — even those of "pro-Western" countries such as Turkey or Pakistan — are not yet ready for the "frank" dialogue proposed by the pope. By pointing out that violence is a part of medieval Islam, not a "distortion," as Western liberals like to think, Benedict has touched a raw nerve.

"No, this pope is not naïve. It is our liberal, theologically illiterate politicians who are naïve. We are already at war — a holy war, which we may lose.

"Nor is he inconsistent. The Ratzinger of old, his skill in disputation honed over many years of patiently defending Catholic orthodoxy against liberal or secular opponents, was never going to duck the long-postponed doctrinal confrontation with Islam. In his subtle, scholarly way, he is urging the rest of us to face the fact that if we have no faith, we cannot hope to withstand the onslaught of a resurgent Islam.

"Benedict is well aware of the risks, not least to his own life, of speaking out. Like his great Polish predecessor, this "German shepherd" has the courage of his convictions. Thank God he does: Without convictions, our courage will surely fail us."
I suppose way over at the other end of the spectrum are the reported statements of Al Qaeda in Iraq which calls on the West to surrender now, convert to Islam, or surely die by the sword. Here is coverage from the SITE Institute on statements by Iraqi insurgent groups on the Pope's Regensburg comments.

Monday, September 18, 2006

Reading Benedict XVI at Regensburg

What Pope Benedict XVI said last Tuesday in Regensburg was no slip of the tongue, nor was it some back-of-the-hand insult to Muslims. Rather, it was a substantial presentation of papal thinking on Islam, violence, reason, faith, science and the inescapble dilemmas of our age. Apologies seem neither reasonable nor effective at erasing the substance of the Pope's lecture nor their importance. His logos must be encountered on its own terms and not trivialized by the politically correct or the spiritually insecure...

Some Philippine Commentary readers (perhaps the Catolicos cerrados?) may want to listen to a reading of Pope Benedict's recent Lecture before the University of Regensburg, Germany. The transcript in English that I used is the official Vatican version Faith, Reason and the University Memories and Reflections (September 12, 2006).

I've arbitrarily divided the Pope's Lecture into five parts:

Part 1 of the Lecture at Regensburg contains the Pope's discussion of a 14th century conversation between an unnamed "Persian interlocutor" and a Byzantine Emperor with the remarkable name of Manuel Paleologus II. In it Prophet Mohammed's alleged innovations are called "evil and inhuman" -- precipitating the events currently making headlines as the Muslim world reacts. Not only that, the Times of London points out Papal errors involving historical facts and judgments. (via Andrew Sullivan). Andrew does not think that the Times corrections "completely undercut" the Pope's arguments because it turns out that Surah 2:256 was uttered at a time when Mohammed was already in control of the state of Medina, so that a statement like "There is no compulsion in religion." would acquire a different coloration than if the Prophet had uttered them when he was still struggling to establish his religion as a state power. I don't think this touches the conclusion drawn however that violent conversion of people to religion is wrong and that such coercion is alien to the nature of faith, if not of God. Also, the placement in history of various scraps of scripture (Christian or Muslim) is not the most reliable occupation, especially when done by newspapers. Mohammed said and did a lot of things which ought to stand on their own merits or demerits.

In Part 2 of the Lecture at Regensburg, Benedict XVI offers a polemic against the Islamist conception of God by proposing that Reason is an integral part of God and of religious faith itself, whereas in Islam Allah is not bound by such small human categories as "reason" -- Allah is not bound by even His own words -- Benedict distinguishes Christian theology from Islamic theology at its most basic level.. There seems no sense of IRONY in Benedict however, over how indistinguishable Christianity at one stage of its own historical evolution was, say in the heyday of the Holy Roman Empire, to that of Islam during any of the times it ruled most of the world too, such as during the Ottoman Empire. He focuses instead on "genuine encounter" between faith and reason in the early "inculturation" of "Greek philosophical inquiry" into Christianity. But he does mention the Medieval Ages...

In Part 3
Benedict locates the intellectual and historical roots of the Church in Greece and Rome and the full flowering of the Christian faith in Europe, and begins a discussion of the process of "de-Hellenization" of the Church in the modern era. He addresses the Reformation and the disquisitions of Immanuel Kant on pure reason and reminisces on his own participation in University theological debates during the fifties.

In Part 4
Benedict tackles "the second stage of de-Hellenization" of Christianity which he locates in the theological program of Adolf von Harnack (whom I've never heard of before) and in the philosophy of Immanuel Kant. He concludes that these succeed only in separating reason and modern science from their roots in philosophy and theology and thus "reduces man himself" by restricting the "radius" of reason and science. His remarks on Science and the scientific method in this section deserve a longer Commentary forthcoming...

Christian "cultural pluralists" may be surprised, even upset at the Pope's conclusions, laid out here in Part 5 of the Regensburg Lecture. The Times of London had this to say in their article:
The Pope has a history of criticism of Islam. According to a leading Catholic, he believes that Islam cannot be reformed and is therefore incompatible with democracy.
The newspaper also quotes the Pope's "old sparring partner" in Tubingen, Hans Kung, (I didn't know he was still around!) who thinks the incident at Regensburg "unfortunate." I really don't see why.

Saturday, September 16, 2006

Neocon Pope?

ROMAN CATHOLIC POPE BENEDICT XVI is at the center of a growing global controversy for his recent remarks about Mohammed and Islam at the University of Regensberg, Germany last Tuesday. A complete transcript is available from the following Vatican link:

(SEPTEMBER 9-14, 2006)



Aula Magna of the University of Regensburg
Tuesday, 12 September 2006

Faith, Reason and the University
Memories and Reflections

I just got done reading the Papal Lecture and urge all Philippine Commentary readers to do the same. It's quite a deep and complex meditation on a number of important topics, including his remarks on Islamic jihad and the use of violence to compel obedience or conversion to religion. Here is the offending passage that has gotten all the screaming headlines and sound bites from the above Lecture in which Pope Benedict discusses the conversations of Byzantine Emperor Manuel Paleologus II in the 14th Century with an unnamed "Persian interlocutor:"
POPE BENEDICT: The emperor must have known that surah 2, 256 reads: "There is no compulsion in religion". According to the experts, this is one of the suras of the early period, when Mohammed was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur'an, concerning holy war. Without descending to details, such as the difference in treatment accorded to those who have the "Book" and the "infidels", he addresses his interlocutor with a startling brusqueness on the central question about the relationship between religion and violence in general, saying: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached". The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood - and not acting reasonably (F×< 8`(T) is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...".
The Pope's upcoming visit to Turkey may be imperilled as today there are riots over his recent statements. His effigy already burns in various places in Pakistan as strident demands for apology swell from Muslim clerics and the leaders of Islamic nations. It feels like the early days of Jyllands Postens Danish cartoon controversy. I wonder how long before we see photographs like this ?

Although the Vatican was at great pains to deny any intention to insult Islam or Muslims, the riots, vituperative statements and growing violence of the reported reactions around the world, will unavoidably recall the Mohammed Cartoon controversy that erupted last year.
Moreover, not only is Pope Benedict quite a bit more significant than the Jyllands Postens cartoonists, his statements were not graphic renditions of, but direct statements about the Prophet Mohammed and his most essential teachings. I suspect the Pope is already being condemned as an infidel blasphemer and fatwas for his execution, along with cars and money as bounty rewards, will soon be offered by flamboyant radical clerics advertising their madrassahs and mosques.

CHRISTIANITY AND CULTURAL PLURALISM There is far more, actually to the Benedict Lecture than what has so far been reported on jihad. The rest of the Lecture is a contemplation upon the relationship between Reason and Faith as seen in the historical encounter between Christian faith and Greek philosophical inquiry.
POPE BENEDICT: This inner rapprochement between Biblical faith and Greek philosophical inquiry was an event of decisive importance not only from the standpoint of the history of religions, but also from that of world history - it is an event which concerns us even today. Given this convergence, it is not surprising that Christianity, despite its origins and some significant developments in the East, finally took on its historically decisive character in Europe. We can also express this the other way around: this convergence, with the subsequent addition of the Roman heritage, created Europe and remains the foundation of what can rightly be called Europe.
Mourning a "dehellenization" process he espies in the modern age, the Pope stands by the idea that Reason is a part of Faith and the religious experience. He rejects the idea of a God not accountable to Himself...
POPE BENEDICT: In the light of our experience with cultural pluralism, it is often said nowadays that the synthesis with Hellenism achieved in the early Church was a preliminary inculturation which ought not to be binding on other cultures. The latter are said to have the right to return to the simple message of the New Testament prior to that inculturation, in order to inculturate it anew in their own particular milieux. This thesis is not only false; it is coarse and lacking in precision. The New Testament was written in Greek and bears the imprint of the Greek spirit, which had already come to maturity as the Old Testament developed. True, there are elements in the evolution of the early Church which do not have to be integrated into all cultures. Nonetheless, the fundamental decisions made about the relationship between faith and the use of human reason are part of the faith itself; they are developments consonant with the nature of faith itself.
In so doing Pope Benedict has now enraged the Muslim world and those who proclaim that Islam--unlike Christianity--does not accept the right of Unbelievers to continue to Disbelieve. The Pope rejects the notion that the Christian Faith would countenance murderous intolerance in the name of culture or religion. I find in the Regensberg Lecture a continuation of many ideas the Pope expounded upon in his Inaugural Encyclical Deus Caritas Est in which he strongly affirms democratic principles of religious freedom, the separation of the Church and State and toleration among all faiths.

Thursday, September 14, 2006

Ali Baba and the Forty Thousand Thieves

ven though a member of the Armed Forces' K-9 Corps particularly beloved of Cory Aquino is said to be interred with the heroes, soldiers, Presidents and National Artists in the Libingan ng mga Bayani at Fort Bonifacio in Makati, I am glad that Ferdinand Marcos has not gained entry to that cemetery of heroes -- with his fake medals, his bloodstained hands, his megalomaniac mind, his avaricious heart and the rest of what used to be his mortal coil. Meaning no disrespect for the dead dictator, I hope he never will, just as a matter of poetic justice. Let him stay in his beloved Ilocos province, there to float on a bed of greenish light in the dark, stentorian ambiance of piped-in Wagnerian music in some old family house of theirs, and where his true believers and loyalists are said to still lovingly administer a much-needed weekly shave on Da Apo! (Madame Tussaud would faint.) Now, even Imelda is said to have given up on the idea of a burial for the mouldering dictator to be among the national heroes. (Of course, the way Imelda Marcos and fugitive PCGG Commissioner Rick Abcede are so beso-beso nowadays gives pause; don't be surprised if this actually means a deal for the dastardly deed to put Da Apo in the Libingan ng mga Bayani has already been struck with Imelda's Male Version in the present-day Palace.)

THE LOOT RE-PLUNDERED But the evils done by Marcos live on after him. Not least, in the continuing plunders, larcenies, leaching-off-ofs and other miraculous gimmicks by the forty thousand thieves that have busied themselves over the years like scarab dung beetles, assiduously collecting their share of fallen crumbs from Marcos "hidden wealth." This includes not only the remnant of Marcos' unpunished relations and cronies, but also members of the various official Posses that have been formed to go after them over the years! "Bantay-salakay", as Senator Dick Gordon called them in the vernacular yesterday. For ironically, a lucrative sort of bureaucratic industry has grown up around the very instruments originally assembled to regain the plundered billions of the Marcoses in cash, jewelry, stocks, bonds, deeds, options, and properties of every imaginable and valuable sort. Take for example the Philippine Commission on Good Government led by Chairman Camilo Sabio, who was recently arrested on orders of the Philippine Senate for ignoring multiple summons to testify before it. "After twenty years, the PCGG has not even a written a report on its work!" Dick Gordon fulminated at yesterday's hearing, after they were lectured to by Sabio on Executive Order No. 1 and why he, Camilo Sabio, and the various commissioners of that august body called the PCGG, are too busy going after Marcos' wealth to be attending silly Senate hearings. Dick Gordon was clearly exasperated by Camilo Sabio, but I'm glad that he for one is standing up for the rights of that endangered species called the Philippine Senate. After all, the worms are already done with Marcos' carcass, but it seems the Forty Thousand Thieves are still feasting in Ali Baba's cave.

A substantial matter propounded yesterday by Camilo Sabio is the following provision in Executive Order No. 1
(b) No member or staff of the commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.
Senator Juan Ponce Enrile in contradicting Sabio's claim of special immunity observed that if the 1987 Constitution and subsequent jurisprudence are not considered to have repealed or amended the same as Sabio claims, why then the PCGG appears to be above all the departments of the government and the Law itself as it is answerable to no one.

Another chicken of the Supreme Court is coming home to roost. Oral arguments have already been set for September 21 during Sabio's habeas corpus hearing.

An interesting tableau is beginning to form this afternoon at the Philippine Senate as Gordon's committee re-convenes. Overnight, Senate security forces apparently raided the Makati offices of the PhilComSat looking for the fugitive Abcede. Perhaps this action has impressed the seriousness of the Senate in this matter upon certain people because it seems those invited from Philcomsat have decided to attend today's session.

IN AID OF LEGISLATION Senator Dick Gordon shrewdly emphasized the Senate's motivation in conducting the present hearings: they are in aid of legislation aimed at determining what the government really ought to do about the 20 year old PCGG, which has become part of the "system of spoils" in which a new set of appointees comes into the agency with every new administration. As Gordon poignantly observes, the public has not ever received a comprehensive report from the PCGG on how many people have been prosecuted or jailed and that negligence and corrupt practices have dissipated the value of these corporations.

Tuesday, September 12, 2006

Neoconservatism and Paleoliberalism

Manuel L. Quezon III tackled this atypical subject tonight on ANC's The Explainer TV show with fellow Inquirer columnist Ms. Patricia Evangelista. He does a good job introducing a topic that is not exactly commonplace in Philippine television. I'm glad MLQ3 brought up the case of Paul Wolfowitz who, as a young foreign policy adviser on East Asian Affairs under then President Ronald Reagan in 1986, was one of the early neoconservative policy thinkers within the US government who effectively questioned US support for fascist dictators, monarchs and autocrats during the Cold War. It was reportedly Mr. Wolfowitz who convinced Pres. Ronald Reagan to tell Ferdinand Marcos in 1986: "Mr. President, it's time to cut and cut cleanly."

Neoconservative Paul Wolfowitz is arguably an unsung hero of the Edsa 1 People Power Revolution, perhaps as much responsible for the its bloodless outcome as Cardinal Sin! For what if he had not prevailed and Reagan told Marcos in Feburary 1986 that the US would support him no matter what? There might've been a massacre instead of a miracle! I have some reflections on that historic event in The Paradox of People Power and the role of Paul Wolfowitz. By the way, I supported the decision to invade Iraq and overthrow Saddam Hussein because I saw it as a belated but welcome revocation of the long-standing US policy during the Cold War of supporting fascist dictatorships like that of Ferdinand Marcos. (I always knew that America was better than that!)

The core of neoconservative thinking espoused by Paul Wolfowitz is surprisingly simple and direct and "fundamentalist" in the best sense of the word: Democracy is the solution to the problems of most nations, most of the time. Supporting dictatorships, monarchies and other repressive regimes has not in the long run guaranteed US national security. (Consider that most of the Sept. 11 attackers were Saudis.) Indeed, during the Cold War and in that respect, there was little difference between America and the USSR who both "support the son-of-a-bitch as long as it's OUR son-of-a-bitch".

Francis Fukuyama (The End of History)
and Samuel Huntington (The Clash of Civilizations) make cameo appearances in MLQ3's discussion, successively on the idea that the trend towards democratization will transform the world but that a clash of civilizations will be engendered by cultural and religious differences.

THE CALIPHATE AND ISLAMOFASCISM I think that Ms. Patricia Evangelista's own considerable talents at speaking and writing, once recognized in the British Isles, may have been underutilized on the Explainer tonight since her role in this segment was basically to read some choice screeds from Osama bin Laden. But MLQ3 seemed quite the neocon himself pronouncing and broadcasting an original neoconservative neologism that I personally dislike but can no longer be avoided in present lexicon: Islamofascism. Ugly but accurate, like Nazi Fascism or Baathist Dictatorship. I'm not sure MLQ3 was endeared to jihadist-lovers tonight as he put OBL's words through Ms. Evangelista, whose fair speech could not disguise the venom of their content, and justifies the term Islamofascism. Al Qaeda's radical version of "Islam" seeks to reunite all the disparate "Muslim lands" under the old theocratic caliphate, (last seen as the Ottoman Empire in the 1920s). And definitely no Separation of Mosque and State!

However less in stature he happens to be in the liberal academic or book publishing world, I guess I still like George W. Bush's formulation yesterday on the Fifth Anniversary of 9/11 during a televised address: "It's not so much a clash of civilizations, as much as a clash FOR civilization."

Unlike paleoliberals (my antonym for neoconservative) Bush rhetorically denies that there is any cultural or moral equivalence between Islamic theocracy and Western democracy. For the US President and neoconservatives in general, it is not a competition among equal cultures that are only different in superficial aspects. It is a struggle between two radically disparate views about how human societies ought to be organized and what freedoms every individual must be guaranteed. Only democracy -- with it guaranteed freedom of expression and religion -- has proven capable of creating the conditions for peoples of different religions to live together in peace and prosperity and religious toleration. By contrast Al Qaeda and the radical Islamists are out to exterminate all the kuffar, claiming it's Allah's orders, and are dreaming of a Global Islamic Fundamentalist Republic, where even the paleoliberals, (especially the paleoliberals) could not possibly be happy.

Sunday, September 10, 2006

9/11--Pearl Harbor of the War on Terrorism

MARIA RESSA and ABSCBN News Public Affairs performed a valuable public service tonight with the broadcast of the documentary/essay 9/11: The Philippine Connection. (Links to the transcripts are here: Part 1 - 2 - 3 -4 -5 - 6 - 7 ) The show will be an eye-opener for the Philippine public at large, who know little about the true history of Al Qaeda and terrorism in the Philippines. Maria Ressa tells several riveting stories including the terrorist plot to kill Pope John Paul II during a visit to Manila in the mid 90s; the connection between Sept. 11 masterminds Khalid Sheik Mohammed, Ramzi Youssef, Al Qaeda and the infant Abu Sayyaf Group; and that of Operation Bojinka, in which a liquid bomb was assembled by Ramzi Youssef aboard a Cebu Pacific flight--ten years before this year's aborted London attacks. Most significantly, an apparently little-noticed Philippine intelligence report from 1995 stated a discovered plan of Youssef's and Khalid Sheik Mohammed was to hijack a commercial airliner, take over the cockpit and crash the plane into CIA headquarters in Langley, Virginia. Former Secretary Rafael Alunan III, tells Maria Ressa that right there was the blueprint for the 2001 Sept. 11 attack in New York and Washington. It was the Manila cell of Al Qaeda that apparently developed the 9/11 attack strategy. Maria Ressa's documentary ends with a poignant challenge to "moderate Muslims" to speak up about the global terrorist movement, whether they approve of its tactics and attacks. Maria Ressa's show is rare in the Philippines, where the media is steadfastly introverted and devoted to the coverage of the droll and predictable pathos in the lives of showbiz personalities, or is openly leftist and automatically anti-American on most issues. Speaking of which...

RANDY DAVID is a well-known University of the Philippines sociologist, faculty member and a lifelong defender of the Left and other "progressive causes" through published articles, television and radio programs, as well as speeches and position papers on Philippine social and political issues. Once per week he writes a column for the Philippine Daily Inquirer called Public Lives. In After 9/11, Randy produces an essay that states the position of the anti-American Philippine Left on the global war on terror. His attitude is that all the bad things that have happened after 9/11 are basically America's fault, for being either arrogant or paranoid or worse, a failure at what it sets out to do in the world.

RANDY: THE transformation of air travel, particularly into the United States, into a tedious, time-consuming, and often humiliating activity is only the most obvious effect of 9/11. It is perhaps the least important. The paranoia that 9/11 spawned has produced a new international security doctrine that is undermining democracy everywhere. It has given a new warrant to imperialist wars by reviving the archaic notion of pre-emptive defense. It has extended the life of militarist and dictatorial regimes that had been battered by the global tide of democratization in the ’80s and ’90s. It has given tyrants who justify oppression as a state necessity a good conscience.
As quickly as Randy dispatches the inconveniences of modern air travel as being "the least important" costs of the war on terror, he immediately blames "the paranoia that 9/11 spawned" as "undermining democracy everywhere" by abetting "imperialist wars" and soothing the consciences of tyrants. (Oh, but how archaic of the West to resort to self-defense!) But objectively speaking, Randy is quite wrong about the global trends in democratization. Since the United States first decided to forcibly democratize Miitarist Japan and Nazi Germany after World War II, the number of Western-style constitutional democracies all over the world has been steadily increasing in numbers from a few dozen before the War to well over 120 today. The last major spurt was seen in the late eighties and nineties as a direct result of the implosion of the Soviet Union and the historic collapse of world wide communism. It was another US President that the Left loved to hate--one Ronald Reagan--that basically gave the old USSR the last fatal shove into the graveyard of truly failed phenomenal ideas, starting when, in an historic act of political incorrectness during the Cold War, he dared to call the USSR "the Evil Empire." Of course that singular political supernova of almost a generation ago now, has hardly dimmed the ideological faith of Randy David and the Philippine Left. Contrary to his assertion, I would say that dictatorial regimes of all kinds have been looking over their shoulder at changes in US foreign policy toward such regimes, especially after 9/11.

RANDY: The United States has fought many wars before, but never on its homeland. The daring 9/11 attacks on New York and Washington, the heartland of American power, were unprecedented not only in their brazenness but in their effect on the American psyche. They gave imperial arrogance a moral reason to unleash the capacity for naked violence that the United States wields as the world’s lone superpower.
Well there you have it folks, the world's lone superpower displaying imperial arrogance and moral outrage in the face of a brazen attack on its homeland. How dare the arrogant Americans react violently to the slaughter of several thousand of their innocent citizens! Perhaps Randy would rather have America turn the other cheek rather than, for example, dismantle the Taliban government in Afghanistan or root out sleeper cells and supporters.

RANDY: Its first targets were the aliens perceived to pose a threat at home. In the days following 9/11, 768 foreigners were rounded up and jailed as “special interest” detainees. Their identities were kept secret, and the public was barred from the immigration hearings in which their cases were taken up. Within a week after 9/11, the first draft of the Patriot Act took shape. Much of the assault on the civil liberties of persons living in the United States today happens under the auspices of this law.
Ever the civil libertarian, Randy considers the Patriot Act to be an assault on the civil liberties of persons in the US. Never mind that it is the sovereign will of the American people, expressed through their duly elected democratic representatives, that government authorities be given the power, the resources, and yes, the good auspices of the Law to prevent terrorist assaults on lofty towers using jetplanes full of fuel and innocent people. But try as hard as he does to portray some grievous breach of human rights in the US as a result of the Patriot Act and Bush's domestic security policies, I am struck by the fact that the only reason Randy even knows about the abuses, errors, misjudgments and bad decisions by the US administration during the five years since September 11, is because of the fully functioning democracy there, including even more original Leftists than him.

RANDY: The Bush government immediately went into a self-defense mode and vowed to punish not only the perpetrators of 9/11 but also the countries that harbor them. In the list were Iraq, Afghanistan, Libya, Sudan and Iran. Intelligence operatives named Osama bin Laden as the mastermind of the hijackers, who were mostly Saudi nationals. But the hunt for Bin Laden led to Afghanistan, where the anti-Western Taliban held sway. Operating under a UN mandate, US-led coalition forces overthrew the Taliban, but failed to find Bin Laden, the war’s prime object. A new Afghan government was installed, but four years later, it is still incapable of enforcing its authority and defending itself. In the past few weeks, resurgent Taliban forces have seized control of towns west of Kandahar, engaging Canadian troops in fierce battles on difficult Afghan terrain. George W. Bush rationalized the war on Afghanistan as a fight to bring democracy to that country. That goal remains a dream. The US-led coalition forces now find themselves more and more playing the role of an occupying rather than a liberating army.
Tomorrow is the Fifth Anniversary of the September 11, 2001 Al Qaeda terrorist attacks in New York City and Washington D.C. Perhaps it would be useful to look upon 9/11 as the "Pearl Harbor" of the War on Terror, because of one thing Randy IS correct: 9/11 had a powerful effect on the American psyche -- it was a massive and much-needed wake-up call. Indeed, a call to arms, which Randy unfortunately views through anti-American ideological lenses that were, ironically, manufactured in the United States of America by the American Left but perfected and adapted to local conditions by the Philippine Left, a scion, a descendant, a creation of Mark Twain and the US Anti-Imperialist League, and presently, an unconscious adjunct of the Far Left of the Democratic Party. But in essence, Randy's view of America is that of an imperialist power with a new excuse for world domination. How perfectly qauint but, ahem, archaic, but here is the rest of the spiel...

RANDY: The next target was Iraq, an oil-producing country under a secular dictator. Unable to obtain a UN mandate to invade Iraq, Bush sold the idea to the American people by linking Saddam Hussein to the 9/11 hijackers and by accusing his government of storing weapons of mass destruction. Subsequent investigations found no basis for either charge. The United States raised the flag of democratization over Iraq, expecting to be welcomed by the Iraqis as a liberating force. But Iraq today is in shambles, a society torn by civil war. After wasting billions of dollars and losing American lives, the United States faces the familiar problem of how to disengage without admitting it has failed. Bush continues to paint Iraq as a breeding ground of terrorists who must be stopped where they are so they would not pose a threat to America. This line is being rejected by a growing majority of the American people.
Now what was I saying about the Philippine Left being an adjunct of the Democratic Party? Randy is clearly impressed by the achievements of Al Qaeda in the Land of Two Rivers and is eager to declare Operation Iraqi Freedom a failure. "Torn by civil war" and "in shambles" after wasting billions of dollars and losing thousands of American soldiers, Randy is most interested in how America will cut and run. It is all Bush's fault in Randy's view, that Al Qaeda has unleashed an unrelenting wave of car bombings that is indiscriminately killing primarily Iraqis, not just Americans. He neglects the historic fact that Iraqis HAVE set up the first and only existing Arab democracy in the world, which happens to be fighting for its life as people like Randy crow about the travails and difficulties of that birth. It is true that Al Qaeda rushed into the vacuum created by Saddam Hussein's exit from power, and has nihilistically exploited ancient religious and ethnic divisions among the Iraqi people. But perhaps that is why the coming of democracy to an Arab country like Iraq has not been occasioned by more of the traditional Iraqi symbols of welcome: dancing, flowers and sweets. They are too busy fighting the terrorists who need a new home since losing the government of Afghanistan!

RANDY: There is a wealth of information to be found in the report of the 9/11 Commission. But the motives that led the hijackers to do what they did continued to puzzle the investigators. The commission ended its hearings in June 2004, and in one of these final hearings, the question of motives was raised again by its vice chair, Lee Hamilton. An interesting response to the question was given by FBI Special Agent James Fitzgerald. This was caught on video but did not find its way into the commission’s report.

“I believe,” Fitzgerald declared, “that they feel a sense of outrage against the United States. They identify with the Palestinian problem. They identify with people who oppose oppressive regimes. I believe they tend to focus their anger on the United States.” This is perhaps the most honest account of what agitates Islamic peoples all over the world today. US policy has refused to see American support for Israel against the Palestinian cause, and the cozy relations that America has maintained with oppressive but pro-American Arab regimes, as the driving force behind the anger of Muslims against America. Bush continues to peddle the lie that what fuels Islamic militancy is hatred for American freedoms. It is absurd.

Absurd? Tell that to the Afghan victims of the Taliban, the women under bourqas, or the parents of Indonesian Christian school girls beheaded by Islamic ideopaths, or women being stoned by fundamentalists for adultery. Here indeed is the heart of the fallacy that preys on much of the anti-American ideologues in Philippine society. It is the fallacy that there is a moral equivalence between an open and free democratic society and a radical Islamic fundamentalist State.

Friday, September 8, 2006

Panganiban's Dissenting Opinion on People's Initiative

In a Supreme Court Decision penned by then Chief Justice Hilario G. Davide Jr. Santiago Vs. Comelec (G.R. No. 127325. March 19, 1997) an 8-6 majority struck down the first attempt to amend the 1987 Constitution by People's Initiative, when it found that R.A. 6735 (Raul Roco's 1997 Law on Initiative and Referendum) was "inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation." It concluded that "the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system."

One important issue that is disappointingly skirted in Davide's ponencia of Santiago vs. Comelec is that of the distinction between "AMENDMENT" and "REVISION" of the Constitution. Here is the last line of the Decision just before the disposative Conclusion:
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of the elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered unnecessary, if not academic.
The task of making that distinction and reconsidering people's initiative on the Constitution, will fall to the present Supreme Court, with at least eleven new Justices appointed by the current tenant of Malacanang Palace. More's the ominous atmosphere over the observation that of the Justices left over from the 1997 Court that decided Santiago vs. Comelec, only two remain, both of whom DISSENTED from the Majority, namely Justices Reynato Puno and now Chief Justice Artemio Panganiban, whose separate concurring and dissenting opinion is invaluable in forecasting the fate of the second attempt at People's Initiative, that of Sigaw ng Bayan in 2006. It is worth quoting at length:
PANGANIBAN, J., separate concurring and dissenting opinion in Santiago v. Comelec (1997)

Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority, holds that:

(1) The Comelec acted without jurisdiction or with grave abuse of discretion in entertaining the "initiatory" Delfin Petition.

(2) While the Constitution allows amendments to "be directly proposed by the people through initiative." There is no implementing law for the purpose. RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned."

(3) Comelec Resolution No. 2300, "insofar as it prescribes rules and regulations on the conduct of initiative on amendments to the Constitution, is void."

I concur with first item above. Until and unless an initiatory petition can show the required number of signitures -- in this case, 12% of all the registered voters in the Philippines with at least 3% in every legislative district -- no public funds, may be spent and no government resources may be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition absent such signatures. However, I dissent most respectfully from the majority's two other rulings. Let me explain.

Under the above restrictive holding espoused by the Court's majority, the Constitution cannot be amended at all through a people's initiative. Not by Delfin, not by Pirma, not by anyone, not even by all the voters of the country acting together. This decision will effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right to change the basic law. At the very least, the majority holds the right hostage to congressional discretion on whether to pass a new law to implement it, when there is already one existing at present. This right to amend through initiative, it bears stressing, is guaranteed by Section 2, Article XVII of the Constitution, as follows:

"SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter."

With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relive him of pain. What Citizen Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.
Panganiban essentially sides with R.A. 6735's author, the former Senator Raul S. Roco, that the law was "adequate" but that Delfin/Pirma had not actually collected the requisite number of signatures in order to properly initiate the process. But this is an infirmity that Sigaw ng Bayan made sure its case would not suffer from. And as I said, Davide decided not to address the issue of defining REVISION and AMENDMENT, calling the task "academic". But not moot.

Panganiban may yet have HIS defining moment on this.