Archive for the ‘politics’ Category

A frank discussion about impeachment, after impeachment

Two things stand out from the exercise of impeaching the Chief Justice:

One, the voting could have been closer. 

Since Corona eventually “revealed” the true extent of his deposits (and in the process admitted the omission charged in the Complaint), his defense was confined to providing legal justification for the non-inclusion of certain amounts in his SALN. In essence, he claimed that he did not disclose a portion of his peso deposits because they were owned by other members of his family and he did not disclose the peso equivalent of his dollar deposits because the dollar deposits were absolutely confidential under the FCDA.

However, if the revelation had been done earlier and without constructing a veritable Marginot Line of technical obstacles to defeat court processes, the former Chief Justice would have avoided (largely if not entirely) the impression that he had something to hide. Then, the impeachment case would have been reduced to a purely legal question: whether or not the non-disclosure of certain assets in an official’s Statement of Assets Liabilities and Net Worth without intent to maliciously conceal these assets, constitutes a high crime which warrants impeachment of an official. The reality of it is that NONE of the Supreme Court justices’ SALNs are available to the public and the non-disclosure of true worth as required by law is not unique to Corona.  His case grated sensibilities only because it was colored by impropriety. Thus, had the defense been able to show lack of malicious intent to conceal, the Senate might have found it harder to justify removal of the highest magistrate on a single technical ground.

Two, a discussion of the Rules and the nature of the impeachment process is in order.

It must be of some significance that the provisionon “impeachment” is found in Article XI of the Constitution on “Accountability of Public Officers.” Read with the other provisions in the same Article, it takes no great leap of logic to realize that impeachment is simply a platform to allow the people to directly hold certain high officials accountable for their conduct in office.

On the other hand, the term “accountability” or the “state of being accountable” connotes not only liability for acts but “explanation.” In other words, an impeachment proceeding is not so much a trial (unfortunate persisting terminology notwithstanding) to prove that a public officer should be removed but as a national inquiry into his conduct while in office. The removal (and disqualification) of the impeached officer is nothing but the logical consequence of a positive finding of failure to properly render an account and is not punitive but protective. It is protective insofar as the removal (and/or disqualification) of the public officer is not designed so much as to punish the accountable officer but to prevent further damage to the people which he serves.

In Federalist No. 65, Alexander Hamilton argued that the Senate was the “most fit repository” of the power to decide impeachment cases because impeachment was “designed as a method of NATIONAL INQUEST” and the legislators are the most proper “inquisitors,” being the representatives of the nation themselves.If we subscribe to this proposition, then it also follows not only that a “fishing expedition” is allowed but that it is in fact the main point of the impeachment.
It was frustrating to see technical Rules of Evidence, on the theory that they are “suppletorily” applicable, be utilized to hamstring the process of discovery. For that matter, other procedural concepts are hardly appropriate in the context of impeachment proceedings. Chief of these is the extension of the Right of the respondent in an impeachment proceedings to the same presumption of innocence accorded to an accused in a criminal case. The fact that the prosecution agreed to such application hopefully has not elevated the principle to a precedent because it is simply misplaced. A respondent in an impeachment case cannot be given the same presumption because: (i) an impeachment case is not punitive and the respondent does not stand in the same footing  as the accused in a criminal case; and more importantly, (ii) the respondent in an impeachment case has already been impeached by the Lower House. Consequently, the burden is not on the prosecution but on the “defense” to show that the complaint is unmeritorious.

The TRO Against the DOJ Watchlist Order: Will There Be a Constitutional Crisis?

DOJ defies TRO (Image from PDI)

Sabres have been drawn between the Supreme Court and the Executive Branch, under the banner of the Department of Justice (DOJ) Secretary Leila De Lima. Like most struggles in history, this clash is about a woman and the refusal of one of the zealous pursuers to let go.

Citing medical necessity and her constitutional “right to travel”, the former President sought judicial intervention against an Order of the Department of Justice placing her under a Watch List which effectively prevents her from leaving the country. That relief came on Wednesday (the 15th of November) in the form of a Temporary Restraining Order (TRO) issued by what is popularly perceived as an Arroyo loaded  Court. Despite the TRO, the DOJ has instructed the Bureau of Immigration and Deportation (BID) not to allow GMA to board her plane until after the Supreme Court rules on its hastily filed Motion for Reconsideration.

In the meantime, the camp of the former Chief Executive has filed Contempt charges against De Lima.

So far, no one has blinked.

Leaving the constitutional issues (which warrant a more incisive discussion) for later, we focus our attention on the TRO issued by the High Tribunal and why I don’t believe that it will lead to a “Constitutional Crisis” as alarmists are presently claiming.

For the most part, the reasons why it should not have been issued have been discussed in the most lucid and convincing fashion by Justice Sereno in her dissenting opinion.  I just wish to add that in this case, a Temporary Restraining Order is severely misplaced.

The purpose of a TRO, or any injunctive relief for that matter,  is to preserve the status quo until the merits of the controversy can be heard (Rodulfa v. Alfonso, 76 Phil 225, citing Frederick v. Huber, 180 Pa. 572, 37 Atl. 90). The “status quo” (or more properly, the status quo ante litem) is not necessarily what the situation  is obtaining immediately preceding the filing the case. Rather, it refers to “last, actual, peaceable and uncontested status” before the litigation.

In other words, the status quo which is required to be preserved in this case is that government is poised to indict the former president for crimes committed during her office. That Congressman Arroyo was scheduled to leave the country is not “the last peaceable and uncontested status” because precisely her right to leave the country and the validity of the restriction imposed by the Watch List Order is the very lis mota of her petition before the Supreme Court. To allow her to leave and eventually avoid prosecution for her alleged offenses  would destroy or change the status quo rather than preserve it.

In the case of Yuquico v. Quiambao [GR No.191238], an intra-corporate dispute was filed by the stockholder’s group  led by respondents against those of petitioners. As part of their complaint, the Quiambao group contested the legitimacy of the corporate officers elected during a meeting held on 01 March 2004. Clarifying its earlier order to restore the status quo, the Supreme Court explained that the last, actual, peaceable, uncontested status of the parties prior to the filing of the case could not be the results of the election of officers on 01 March 2004 as this is precisely the meat of the controversy in the case.

In annulling the assailed RTC resolution, the CA. correctly opined, citing Mayor Garcia v. Hon.
Mojica,that the last actual peaceable uncontested status of the parties prior to the filing of Civil
(SEC) Case No. U-14 would not refer to the result of the election of officers held on March 1, 2004
since that election did not precede the present controversy; it is, in fact, the real controversy.
The last actual peaceable uncontested status of the parties prior to the filing of this case would be the
composition of STRADEC’s directors and officers prior to the March 1, 2004 elections, or that
obtaining during the 2003-2004 elections.

So for the most part, I hope that the DOJ secretary stands firm on her decision to keep GMA within reach of her department’s prosecutors. I certainly do not believe that her apparent insouciance to the Supreme Court directive would result in a constitutional crisis.

Indeed, this is not the first time, and it certainly would not be the last, that a branch of government has ignored and even defied another co-equal branch. On 11 June  1963, three African American students applied for admission before the University of Alabama following the landmark decision of the US Federal Supreme Court in Brown v. Board of Education which ruled in 1954 that the segregation policy in public schools was unconstitutional.  Then Governor George Wallace of Alabama blocked the entrance to the school auditorium to deny access to the African-American students in open defiance of the decision.  It took a direct order from the President of the United States and the intervention of the National Guard to resolve the standoff.  Had the federal government not agreed or supported the decision, it would be nothing but a victory on paper, largely ignored in application.

Even Marbury v. Madison (5 US 137) , the recognized progenitor of today’s concept of judicial review, stemmed from a refusal of the Secretary of State  (James Madison) to affix the seal of the United States on William Marbury’s commission after he was appointed as justice of the peace by the previous President John Adams. Keenly aware that the Supreme Court of the United States could not do anything if the Secretary of State disregarded an express directive issued by the Court, Justice Marshall refused to issue a writ of mandamus against the Madison on the ground that it had no power to do so in the exercise of its original jurisdiction. It ruled that Section 13 of the Judiciary Act which gave the Supreme Court such power of mandamus was unconstitutional. In so doing, Justice Marshall deftly avoided a conflict with the executive department but paved the way for general acknowledgement that the Court had the power to review an act of Congress.

An equally important aspect of that decision is often unappreciated. Nowhere is it mentioned in Marbury that the power of the Supreme Court to determine whether an act is unconstitutional is the exclusive province of the judiciary. Contrary to the general impression, all branches of government are duty bound to observe the Constitution. Hence, it necessarily follows that the executive and the legislative must have the authority to determine the constitutionality of official acts. The President is duty bound not to support a law which he strongly believes to be unconstitutional. By the same token, the Executive should also be free to disagree with the decision of the Supreme Court. In such an event, he is in fact under obligation by his own oath to bring the matter of their disagreement again to the Supreme Court for consideration.

 


An Uneasy Peace and Hard Choices

Soldiers Carry `Lucky' Wounded

`They Kept Coming' (Photo and caption from Philippine Daily Inquirer)

It can’t be easy to be Marvic Leonen  in Mindanao these days.

While achieving peace is Mindanao remains an overriding ideal, to say that the Al-Barka incident strikes a serious blow to the peace talks does not quite capture the complexity of the issues surrounding the Mindanao insurgency.

The ambush of  19 soldiers by the Moro Islamic Liberation Front (the single most brutal skirmish in years)  resurfaces some old questions, not least of which is the legal status of the conflict as well as the MILF themselves. The government at least seems unable to make up its mind whether this breakaway group of Nur Misuari’s Moro National Liberation Front (MNLF) should be treated as legitimate belligerents under international law or common bandits.  Perhaps they are something else entirely.

From a more pragmatic standpoint however, it raises doubts as to whether peace itself is attainable under the present framework.

For one, the ambush at Al-Barka begs the question of whether government is talking to the right people. If MILF admits responsibility for Al-Barka, then its sincerity and good faith are both vulnerable to scrutiny. On the other hand, if another group is responsible, the status of the MILF as “top dog” would appear to be disputable at best.

Indeed, the MILF’s insistence on a Bangsamoro sub-state presupposes their ability to preserve the peace themselves and to keep “splinter groups” such as Umbra Kato’s Bangsamoro Islamic Freedom Fighters (BIFF) in tow. If the MILF can’t prevent “disgruntled” members from taking up AK-47s and running amok amidst the scores of the Philippine Army’s best trained soldiers,  how can they possibly keep peace using a motley crew of ex-farmers?

If the MILF gets their sub-state, what are they going to do with it? One certainly can’t look at the ARMM for inspiration.

 

 


The First Hundred

The overarching strategy appears to hinge on the promotion of Public-Private Partnerships (or PPPs). Other than the fact that this is by no means an innovation, infrastructure development by itself is not a recipe for bringing the country out of its status as the perennial bridesmaid of Southeast Asia into the club of the sought after. There are tough choices to be made regarding population control, balancing the budget, peace and order plus of course, the manner and degree of aggressiveness in fighting corruption. Hard decisions require deft political handling and large political capital. While there is still hope, the President has to make these choices soon before his coin runs out.


PPPs and Risk, Part 1

Finally, opening the floodgates to indiscriminate government guarantees is short-sighted and counter-productive. At the end of the day, the increased cost of a government guaranty against regulatory risk will be borne by the tax payers. Since most PPP contracts will outlive President Aquino’s administration, he should be wary about putting his signature on a piece of paper which will doom his successor (and the one after that) to additional fiscal burdens, especially where the benefit is not clear or the need is not immediate.


Noynoy, Gibo, Villar and the new EDSA Revo-lections

Critics bemoan the fact that many Filipinos are reduced to electing the “least corrupt” rather than the “most competent” candidate for the highest post in the land. But that argument presupposes that the two concepts are mutually exclusive. On the contrary, we cannot deny that it is precisely the sad state of the country which calls for a comparison not of one’s track record of real and hyperbolic accomplishments but a demonstration of what one has NOT done despite being possessed of power. In this, Noynoy is head and shoulders above all. As it turns out, Noynoy has shown by his previous conduct that he is the most competent to wield the awful powers of the President by showing its grandest manifestation — that of RESTRAINT.


Who’s Holding the Purse? The Line Item Veto and other Fun Facts Part I

The true “power of the purse” does not arise from the requirement that all revenue bills must originate from Congress as stated in Article VI, Section 24 of the Constitution. Rather, it lies in the dynamic created by the concept that the President must ask Congress for money. Thus, more than the authority of Congress to institute revenue measures, the true nature of the power shows itself in the authority of Congress to WITHHOLD money from the President.


What It Will Probably Take Part II: More on Including the Poor in the Equation

Theoretically, higher income per capita should offset the effects of either a lower minimum wage or a moratorium on wage increases. Stated otherwise, a lower legislated minimum wage would cease to be relevant when a larger part of the workforce is doing higher level jobs and are therefore earning way beyond any floor set by government.


What It Will Probably Take Part 1: Inclusion

At the end of the day, people will not sign on to any plan to overhaul the economy if they don’t see more food coming to their table or if the food is not coming soon enough. This is significant because that plan may ultimately involve reforms that are designed to increase country competitiveness by liberalizing trade laws or lowering the cost of Filipino labor.