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Thread: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

  1. #1

    OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    Amnesty talk

    By Fr. Joaquin G. Bernas, S.J.
    Last updated 01:03am (Mla time) 07/02/2007

    MANILA, Philippines -- Once again there is talk of a possible amnesty proclamation. I am all for efforts at peace and reconciliation. And if amnesty sincerely offered as a gift and not as a trap for the unwary will work, by all means, let's have it. Unfortunately, however, aside from the lingering distrust under which the present administration is still held, there are difficulties in the amnesty process which neither the President nor Congress can solve. They are constitutional and judicially made difficulties. I am hopeful that the new defense secretary, who to my knowledge has no corrupting links with the military, and the highly human-rights-conscious Chief Justice, will help toward making amnesty work.

    When amnesty was first brought to the Philippines by American jurisprudence, it was not seen as distinct from pardon but merely an aspect of the pardoning power. The distinction between amnesty and pardon was merely philological and not legal. Hence, amnesty could be granted when pardon could be granted, that is, at the discretion of the President. (Recall that Richard Nixon, after resigning from the US presidency, was immediately pardoned by Gerald Ford.) It was only later that we adopted the doctrine that pardon can be granted only after final conviction.

    Now the juridical distinction between pardon and amnesty is clear. Amnesty may be granted before conviction or even before charges are filed, whereas pardon can be granted only after final conviction. Pardon after conviction is now at the discretion of the President, but amnesty may be granted by the President only with the concurrence of a majority of all the members of Congress. Pardon is generally granted to individuals irrespective of the kind of offenses they may have committed; amnesty on the other hand is offered to a group who generally are political offenders. Amnesty therefore is more clearly a peace and reconciliation instrument.

    In its treatment of amnesty, Villa v. Allen made this additional observation: "Where the pardoning power is vested in the legislature and is exercised by legislative grant, and is in the nature of a general amnesty for strictly political offenses, it has been considered in the nature of a public law, thus having the same effect on the case as if the general law punishing the offense had been repealed or annulled."

    The present jurisprudence on amnesty does not go to the extent of saying that amnesty repeals an existing law. But amnesty "so overlooks and obliterates the offense with which he is charged that the person released by amnesty stands before the law precisely as though he had committed no offense."

    Over the years, however, there has developed a doctrine which has made amnesty unattractive to potential beneficiaries. It is the judicially created doctrine that in order to avail himself of the benefits of amnesty, a person must admit guilt. How did this doctrine come about and can it be changed without constitutional amendment?

    The earlier doctrine on the subject was that a plea of guilty was not needed for availing of amnesty. As the Court put it: "There is no necessity for an accused to admit his responsibility for the commission of a criminal act before a court or Amnesty Commission may investigate and extend or not to him the benefits of amnesty. The fact that he pleads not guilty or that he has not committed the act with which he is charged, does not necessarily prove that he is not guilty thereof. Notwithstanding his denial, the evidence for the prosecution or complainant may show the contrary, as it is generally the case in criminal proceedings, and what should in such a case be determined is whether or not the offense committed is of political character. The plea of not having committed the offense made by an accused simply means that he cannot be convicted of the offense charged because he is not guilty thereof, and, even if the evidence would show that he is, because he has committed it in furtherance of the resistance to the enemy or against persons aiding in the war efforts of the enemy, and not for purely political motives."

    Later, however, a dissenting opinion argued thus: "The writer of this decision maintained in previous decisions, contrary to the view of the majority of the Court, that it is rank inconsistency for one to justify an act, or seek forgiveness for an act, which according to him, he has not committed; that amnesty presupposes the commission of a crime and that when an accused says he has not committed a crime he cannot have any use for amnesty; that where an amnesty proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such conditions; that a petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the pleader has to confess the allegations against him before he can be allowed to set out matters which, if true, would defeat the action."

    This dissenting opinion became doctrine in 1963.

    I believe that this doctrine should be changed especially now in the context of fabricated charges of rebellion or sedition. When a person signifies his intention to avail of amnesty, he should be seen as welcoming either relief from punishment for guilt, if truly guilty, or, if innocent, relief from the trouble of having to prove innocence.

    ^^^ Hango sa Philippine Daily Inquirer.

    Naisipan ko lang na mag-umpisa ng usapang pang-lgal yaman rin lang may mga abugado daw tayong kalahok dito sa
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  2. #2

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    Revisiting EO 464

    By Fr. Joaquin G. Bernas, S.J.
    Last updated 00:22am (Mla time) 06/25/2007

    MANILA, Philippines - As senator-elect Antonio Trillanes IV pre-pares to take his seat in the Senate, he has begun to make noise about what he intends to do. He tells us that it will be his special mission to seek an investigation of extrajudicial killings. And since investigations involve the calling of witnesses, among potential witnesses who have been identified is the Armed Forces Chief of Staff, Gen. Hermogenes Esperon.

    For his part, Esperon, according to media reports, has made it known that he will invoke EO 464, the instrument through which President Macapagal-Arroyo attempted to clothe executive officers with a mantle of inscrutability.

    Sometime last year the Supreme Court came out with a long disquisition on the scope of the protective mantle made available by EO 464. To what extent can Esperon avail himself of it, if at all?

    EO 464 deals with two kinds of investigation, the "question hour" and investigations in aid of legislation, and two classes of officers, heads of executive departments and other executive officers. Department heads may not be summoned to a "question hour" without the blessing of the President; but no one, except the President and Supreme Court justices, is exempt from being summoned as a witness in an investigation in aid of legislation. Does this mean that Esperon cannot escape confrontation with Senator-elect Trillanes?

    The answer is not a simple one. It involves a careful understanding of the dynamics of what in jurisprudence is called "executive privilege."

    Executive privilege, as the phrase indicates, is the right of the President and high level officials authorized by her to withhold information from Congress, from the courts, and ultimately from the public. The privilege is a function of separation of powers. Among the types of information which have been judicially recognized as privileged are state secrets regarding military, diplomatic and other national security matters. You can be sure that this is what Esperon will invoke. It is thus important to understand who may invoke the privilege and how it is invoked.

    Since the privilege belongs to the President, it can be invoked only by the President or by officials authorized by her to invoke it. As our Court has said: "In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is 'By order of the President,' which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy."

    Further the Court said: "It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance."

    It must also be added that the claim of privilege must be specific, e.g., whether the information sought to be withheld involves military or diplomatic secrets, closed-door Cabinet meetings, etc. "Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so."

    What happens, however, if the President and Congress cannot agree on whether the matter is privileged or not? Then the Court must come in to determine the validity of the claim of privilege. It is good to recall what happened in the leading case of US v. Nixon involving the validity of US President Richard Nixon's claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. "The claim of privilege was based on the President's general interest in the confidentiality of his conversations and correspondence. The US Court held that while there is no explicit reference to a privilege of confidentiality in the US Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President's powers. The Court, nonetheless, rejected the President's claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice."

    It is true that the Nixon case was not about congressional investigation but about criminal prosecution. Presumably, however, any congressional investigation of extrajudicial killings would have for its objective the fashioning of legislation that can effectively deliver criminal justice.

    ^^^ Ito pa mga katoto.
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  3. #3

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    ‘Either knew or… should have known’

    By Raul Pangalangan
    Last updated 02:47am (Mla time) 06/29/2007

    MANILA, Philippines -- When it comes to extrajudicial killings, there is a tendency to confuse and conflate two different kinds of international responsibility. The more traditional is called “state responsibility,” by which the government is blamed, and the newer form is “individual criminal responsibility,” by which certain military officials (or for that matter, armed rebels) may be punished. Either way, the President may be held to account, whether as head of state under state responsibility, or as commander in chief under individual criminal responsibility.

    State responsibility is governed by the International Law Commission’s Articles on State Responsibility. A government is responsible for the “conduct of any State organ [whether] legislative, executive, judicial or any other function, whatever position it holds in the organization of the State, and whatever its character.” Just in case Malacañang is minded to wash its hands by saying that private militias did the dirty job, the ILC says that such acts shall still be attributed to the state “if the person or group of persons is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority.”

    Finally, in the event that the Philippine government thinks it can just look the other way, the International Court of Justice most recently held the Serb government responsible for failing to prosecute the genocidal maniacs who conducted the ethnic cleansing against Bosnian Muslims (and that is after the Court had earlier said -- in a disappointing copout -- that it had no evidence showing that the Serbs directly ordered the genocide).

    Moreover, as I have earlier written, the “Who, me?” defense embraced by Malacañang had been thrown out by the Inter-American Court of Human Rights when it held Honduras responsible for the disappearance of a student activist at the National Autonomous University of Honduras. “Those disappearances followed a similar pattern, beginning with the kidnapping of the victims by force, often in broad daylight and in public places, by armed men in civilian clothes and disguises, who acted with apparent impunity … The disappearances were carried out in a systematic manner [especially considering that the] victims were usually persons whom Honduran officials considered dangerous to State security.”

    The Court said that the state’s obligation under the human rights covenants is not just “to respect” human rights but “to ensure [these rights] to all individuals within its territory….” “What is decisive is whether a [disappearance] has occurred with the support or the acquiescence of the government, or whether the State has allowed the act to take place without taking measures to prevent it or to punish those responsible.”

    On the other hand, the most authoritative definition of an individual’s “command responsibility” is laid out in the 1998 Rome State of the International Criminal Court, which in relevant (but not all) aspects codifies the classic concept of “command responsibility” that the world first saw in the case of the famous Gen. Tomoyuki Yamashita. As professor Harry Roque, director of the UP Institute of International Legal Studies, has emphasized in his many lectures here and abroad, “command responsibility” arose from a Philippine case, the “Rape of Manila” during the last few days of the Liberation, when the Japanese troops went on a rampage against civilians, most terribly in the area of the old UP campus in Padre Faura.

    Although the Philippines has signed, but not ratified, the Rome Statute, the Philippines has ratified the 1969 Vienna Convention on the Law of Treaties, which imposes an obligation of “good faith” to abide by a treaty’s “object and purpose” during that interregnum between signing and ratification. Of course, Malacañang is suspect from yet another angle. You see, President Joseph Estrada signed the Rome Statute before he left Malacañang, but President Gloria Macapagal-Arroyo has since sat on the Statute and refused to forward it to the Senate for ratification, thwarting a procedure laid out in the Constitution.

    Moreover, the Rome Statute’s codification of “command responsibility” is widely seen as an authoritative restatement of what is called “customary international law,” which under the Philippine Constitution’s “incorporation clause” is deemed “part of the law of the land.” Read Article 28, titled, “Responsibility of commanders and other superiors.” It anticipates every possible defense by dastardly governments.

    The test is that the commander “either knew, or owing to the circumstances at the time, should have known that the forces were committing or were about to commit such crimes.” A commander is responsible not just if he had “effective command and control,” but also if he “failed to exercise control properly” or “consciously disregarded information which clearly indicated” that the crimes were being committed. Also, international law has declared obsolete the doctrine of head-of-state immunities for humanitarian law violations. The Rome Statute declares that “official capacity as a Head of State … shall in no case exempt a person from criminal responsibility under this Statute.”

    Finally, a commander is responsible for “fail[ing] to take all necessary and reasonable measures within his or her power to prevent or suppress their commission or to submit the matter to the competent authorities for investigation and prosecution.”

    I sat as member of the drafting committee of the Rome Statute in 1998. I couldn’t have imagined that the “her" would become so apt nine years later.

    ^^^ Para naman sa mga Tibak, hango pa din mula sa Inquirer...
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  4. #4

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    A miscalculation

    Last updated 00:59am (Mla time) 07/02/2007

    MANILA , Philippines - Talk about snatching defeat from the jaws of victory. Koko Pimentel had the advantage, and threw it away. There is a saying among lawyers that a person who represents himself in a case is a person who has hired a fool for a lawyer.

    Pimentel certainly didn't lack for qualified and experienced representation; but his choice ended up privileging himself and, in the process, ignoring the larger advocacy, the more crucial mission, his petition before the Supreme Court was supposed to uphold.

    For it to matter, an election must take place and it must take place under circumstances that do not leave the results of the election in doubt. Furthermore, an election must be accompanied by the credible counting of the votes. People must be free to express their will at the polls; the actual polling must have taken place, for its results to matter; and what matters is the manner by which the determination of the election's result is made. In the absence of any one of these requirements, disenfranchisement takes place.

    Many things could have been said to support Pimentel's meritorious petition to set aside the results of the Maguindanao vote. There was certainly no shortage of evidence to support the contention that the Commission on Elections had embarked on a flawed, and ultimately unfair, canvassing.

    The solution proposed by the Comelec, to ignore all the doubts raised, and instead insist on adding up votes that substantially lacked verification, and thus, credibility, was a non-solution, and indeed, an anti-democratic one. Pimentel could have proposed that under such a staggering amount of suspicious circumstances, the sensible recourse would be to hold a fresh election in Maguindanao, under strictly controlled circumstances guaranteed to accurately reflect the true will of the electorate.

    Instead, since he insisted he would be the one to face the Supreme Court, in the face of questions that were neither harsh nor unreasonable, Pimentel ended up undermining his own case. Asked if he had any evidence, he said he had none. Yet his lawyers, but they couldn't argue, as it was Pimentel who insisted on appearing at bar, knew, and said, otherwise. Pimentel suffered from either a spectacular failure of nerve, or an incredible lack of appreciation of his own case. In the face of such a statement, the Supreme Court had no recourse but to turn down Pimentel's prayer for a temporary restraining order.

    This does not bode well for Pimentel's real petition, the setting aside of the Maguindanao vote. It cannot be denied that Pimentel suffered a reversal of fortune, for which, in the eyes of many, he has no one to blame but himself. But the collateral damage includes all those who labored mightily, and fought courageously and against great odds, to insist on the rule of law and the purity of suffrage in Maguindanao.

    A dirty, discredited election may be on its way to being validated. The disenfranchisement of the people of Maguindanao, a process that began when the Comelec permitted people already discredited by the 2004 elections to once more hold sway over the conduct of the province's election, may become, once the high court rules on the petition, an accomplished fact.

    The failure to win a TRO led to the decision of the Comelec, sitting as the National Board of Canvassers, to finally canvass the Maguindanao votes. The inclusion of these irremediably tainted votes, for which proof of election fraud does in fact exist, did not immediately defeat Pimentel, or achieve victory for Team Unity candidate Jose Miguel Zubiri, but it has made other, equally suspicious and discredited chunks of votes matter all the more.

    If Pimentel's failure to win a TRO foreshadows the final fate of his petition, he may have set back the cause of clean elections in general and in the Autonomous Region in Muslim Mindanao in particular. That means those who defrauded the voters and the country are going to laugh all the way to the victory banquets of those they helped to win.

    It would take a miracle for a real winner to finally emerge with a credible mandate. It will certainly take a little more time before the Supreme Court can rule on the petition to void the Maguindanao vote. But Pimentel's miscalculation has given the forces of fraud unexpected relief.

    ^^^ Usaping election na din, mula sa Inquirer...
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  5. #5

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    Revising the Rules

    By Isagani Cruz
    Last updated 07:20am (Mla time) 07/01/2007

    MANILA, Philippines—I fully support Chief Justice Reynato S. Puno’s plan to call a summit meeting to study the rewriting of some of our procedural rules that have obstructed the administration of justice, particularly in the protection of civil and political rights. In some, nay, many cases, the enforcement of substantive rights is defeated by the requirements and prohibitions of the Rules of Court as promulgated by the Supreme Court itself.

    I have in mind particularly the writ of habeas corpus, which is called the great writ of liberty. Its purpose is to test a person’s detention. So important is the writ that under Art. VII, Sec. 18 of the Constitution, the President of the Philippines himself cannot suspend its privilege except in case of invasion, insurrection or rebellion, when the public safety requires it, and for a period of 60 days only unless it is shortened or extended by joint majority vote of Congress in regular or special session. Sec. 13 of the Bill of Rights also provides that “the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.”

    A petition for habeas corpus takes precedence in the calendar of the courts and must be acted upon immediately because the subject is a person’s liberty. It is usually decided without much delay where the issue is purely civil, like the conflict of separated spouses over the custody of their minor children. The parties dutifully appear before the court to discuss their respective arguments and the case is resolved by the judge soon afterwards.

    But for all its acknowledged importance, the writ is often frustrated where the detainee is a political dissident whom the authorities want to punish by illegally depriving him of his liberty. If a petition for habeas corpus is filed on his behalf, the respondent, who is usually a military or police officer, will simply deny that the detainee is in his custody and the court will then, perhaps gladly, dismiss the case for lack of merit.

    Many desaparecidos suffered under this procedure from the Marcos bullies, and it is not unlikely that the subterfuge is still being practiced even now by the constables of the present regime. Jonas Burgos, a government critic like his late father during martial law, was reportedly arrested last May by uniformed men and has not been seen since then. The armed authorities supposedly looking for him have yet to locate the young activist who may desperately need but is forcibly prevented from invoking the privilege of the writ of habeas corpus.

    Even if the alleged detention can be shown or is not denied by the respondents, the government will usually have a legal ground to evade the petition. During the dictatorship, a person’s unlawful arrest could be easily sustained with the production of the PDA, the tyrannical presidential detention order issued by President Marcos or by his authority, for the court to tamely acknowledge as the legal basis for the dismissal of the case.

    Or more authoritatively, the respondent could invoke a provision of the Rules of Court issued by the Supreme Court that it could not reject, as illustrated by the notorious case of Ilagan v. Enrile, 139 SCRA 349, decided in 1985.

    Three lawyers were arrested pursuant to a mission order issued by a general. The IBP and two other law organizations filed on their behalf a petition for habeas corpus that the respondents moved to dismiss on the ground that the detainees were covered by a preventive detention order issued by Marcos. For lack of evidence of the subversion charges against them, the Supreme Court ordered their temporary release on recognizance of the principal counsel, former Chief Justice Roberto Concepcion and retired Justice JBL Reyes. This was not obeyed by the respondents, who later further alleged that an information for rebellion had been filed against the detainees and a warrant for their arrest had been issued by the regional trial court, making the petition moot and academic.

    The Supreme Court agreed. It cited Rule 102, Sec 4, of the Rules of Court providing that if “the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or a judge, or by virtue of a judgment or order of a court of record, and the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed…” Justices Claudio Teehankee, Hermogenes Concepcion, Vicente Abad Santos and Lino Patajo dissented.

    Even if the information was obviously manufactured, it was enough to defeat the petition for habeas corpus under the above-quoted section which, lamentably, is still part of the law of the land now. I think it is one of the questionable provisions of the Rules of Court that should be re-examined and corrected by the same Supreme Court that promulgated it and so can rewrite or reject it now. Such a move would be in keeping with Chief Justice Puno’s objective of making the administration of justice more realistic and less technical in the defense of individual liberty.

    ^^^ Habeas-in mo mukha mo!
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  6. #6

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    ‘Lacking in perfection and perfectibility’

    By Isagani Cruz
    Last updated 03:08am (Mla time) 06/30/2007

    MANILA, Philippines -- The term of the candidates elected last May will begin today, to continue for three years except in the case of the senators, who will serve for six years unless their incumbency is terminated by the revision of the Constitution before 2010.

    This appears to be the plan of President Gloria Macapagal-Arroyo, and Speaker Jose de Venecia as well, although she has called for the end of political bickering now that the elections are over. De Venecia may not be as purposeful because he still has a fight on his hands against the challenge of former governor and returning representative Pablo Garcia, a worthy opponent who many say can be a better leader to repair the ragged reputation of the House of Representatives.

    The attempt of the Arroyo-De Venecia team to change the Constitution through the initiative was struck down by the Supreme Court last year and their subsequent plan to convert Congress into a constituent assembly for the same purpose was later scuttled by the Senate. Their mission was suspended by the election campaigns last month, but it is possible that they will try again this year because of their insistent ambition to remain in power after the end of Ms Arroyo’s term in 2010 and the possible replacement of De Venecia as Speaker of the lower House.

    President Arroyo’s appeal for an end to the bitter squabbling during the election rigmarole and the pursuit of a non-partisan endeavor to concentrate henceforth on the improvement of the welfare and future of our country deserves everyone’s support. Provided, however, that it is sincere and not just another one of her rhetorical artifices like the one she made in 2002 that she would not run for the presidency in 2004. As for De Venecia, I do not recall his having abandoned his resolve to see the replacement of Congress with a unicameral Parliament where he expects to be prime minister.

    Still recovering from the excitement and deceptions of the May elections, the people are at this time not enthusiastic over the resumption of the plan to reexamine and revise the Constitution. But even as Ms Arroyo has called for a political truce, she may again exercise the female privilege to change her mind and fan the political winds again in her obsession to be at the helm of the proposed parliamentary government. De Venecia will also be pushing for the revision of the present charter, although it is not certain that he and Ms Gloria will again be on the same side.

    It is even doubtful that they will succeed this time to enlist their former followers in a revived effort to rewrite the Constitution according to their own designs. I say “former” because they may not have the same cohorts anymore, considering that they are practically lame ducks already, with Ms Gloria ending her present term in 2010 and De Venecia possibly even earlier with his replacement as head of the lower House by a resolute and formidable adversary.

    I believe that the present charter, which was adopted 20 years ago, will sooner or later be revised by the critical people with no self-centered reasons as the present politicians. Their only purpose will be to correct the shortcomings of the otherwise generally praiseworthy document that, being a human document, is “lacking in perfection and perfectibility.” I can only hope that this reexamination will be done later rather than sooner, at any rate not in the near future when the past election fever will still affect, and perhaps infect, the better judgment of the prospective framers.

    As a humble student of the Constitution, I am one of the many citizens who believe it should be rewritten to correct some of its serious flaws we have discovered since its ratification on Feb. 2, 1987, with 76.27 percent of the voters in favor and only 22.74 percent against. Opposition to the draft, while spirited, was disorganized and consequently ineffective. Many people, while doubtful about some of its provisions and especially its length, nevertheless approved it in the end because they felt it would provide the stability the country sorely needed at that time.

    There is not enough space in this article to discuss all the shortcomings of the Constitution, so I will mention only one basic requirement of a good written constitution, to wit, that it must be brief. The Constitution of 1987 is not brief; in fact, it is kilometric. One reason why the fundamental law should be brief is so it can attract the interest and even the study of the great document that should be familiar to the people in general instead of only lawyers and politicians. Just the inordinate length of the present Constitution is enough to caution the ordinary citizen that it is not a charter of liberty but a codification of trivialities.

    To illustrate, its Preamble speaks of, among other goals, “a regime of truth, justice, freedom, love, equality, and peace.” When I asked Justice Cecilia Muñoz Palma of the Constitutional Commission how much longer they would take to finish drafting the Charter, she replied, “Only this morning, Commissioner [name withheld] took one-half hour explaining the meaning of love.”

    ^^^ Saligang Batas daw o!
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  7. #7

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    The supremacy of civilian authority

    By Isagani Cruz
    Last updated 03:48am (Mla time) 06/23/2007

    MANILA, Philippines -- Now that Navy Lt. Antonio F. Trillanes IV has been proclaimed as one of the winners in the recent senatorial elections, the chief of staff and the other generals of the Armed Forces of the Philippines will have to salute their humble military subordinate as Sen. Antonio Trillanes beginning June 30. This reversal of roles will be in keeping with the constitutional provision under Art. II, Sec. 3 that “civilian authority is, at all times, supreme over the military.”

    This salutary rule is prescribed in all republican regimes where sovereignty is supposed to reside in the people, who exercise it through their elected and appointive representatives. It is rejected in autocratic countries where the people are governed not by their sovereign will but through the barrel of the gun.

    History is replete with the gory records of military brutality prevailing over civilian authority in many lands. The king was the bygone ruler who established his primacy by force of arms over his less valorous subjects. His simple code was to kill all his enemies to protect his crown. And he had his soldiers behind him to defend his right by military might.

    Power was won in the ancient hills with the bludgeon and the sword and the skill to kill. Genghis Khan and others like him won this right by being mass murderers. Through the ages and up to the present time, the annals of mankind are drenched with the blood of casualties, combatants as well as innocent victims, in the endless struggle for the right to rule.

    The victors were mostly tyrants. Caligula of Rome, Attila the Hun, Ivan the Terrible of Russia, Phedon of Argos in Athens, Ludwig I and II of Bavaria, and in the modern world, Francisco Franco of Spain, Mao Zedong of China, Idi Amin of Uganda, Augusto Pinochet of Chile, Pol Pot of Cambodia, Saddam Hussein of Iraq, are among many other villains who have demonized the world.

    Some have, despite their sanguinary past, won tribute rather than scorn and ignominy. Napoleon Bonaparte set Europe on fire but is now remembered not for his sins but his military victories. Simon Bolivar, who liberated many South American countries at much cost of blameless lives, is now honored as an audacious nationalist. Fidel Castro, who freed Cuba from the oppression of Fulgencio Batista, is now its glorified oppressor.

    In fairness, let it be noted that there are a number of military leaders who were not tyrants but are revered as heroes of their race. Among them are George Washington, who is first in peace and war in the hearts of his people, Ulysses S. Grant, who led the Union Army to victory during the US Civil War, and Dwight Eisenhower, who also became President of the United States. Gen. Douglas MacArthur who was overwhelmed with the wildest reception in New York for his victories in the Pacific War was nevertheless denied the same post by his Republican Party.

    In our country, Emilio Aguinaldo, who commanded the Filipino soldiers against the Spaniards and later the US invaders, was elected president of the first Philippine Republic, which died a-borning. During the American regime and up to the presidency of Diosdado Macapagal, the Armed Forces were kept in place and were not allowed to interfere in civilian affairs. That arrangement was abruptly changed when Ferdinand Marcos declared martial law in 1972 and needed the military to maintain it.

    To this end, he pampered the military and gave it important positions in his dictatorship. The Armed Forces became no longer of the Philippines but of the President. The generals became privileged viceroys and ordinary sergeants and corporals began to swagger like colonels. The uniformed upstarts redeemed themselves, however, by joining the people power revolution in 1986.

    But their coddling by Ferdinand Marcos gave the Armed Forces an unwarranted influence they still enjoy in the administration of non-military matters. President Corazon Aquino cordially thanked them for their role in Edsa People Power I; President Fidel Ramos naturally preferred them as his comrades-in-arms over their civilian rivals; President Joseph Estrada acknowledged their help in installing him in Malacañang; and President Gloria Macapagal-Arroyo is afraid of them and is avoiding their displeasure at all costs.

    Many Filipinos must have cast only a conscience vote for Trillanes to symbolize their support for the cause he espoused during the Oakwood mutiny he led in 2003. They probably did not expect him to be elected senator, but he was. Now they see him as the brave knight on his white charger raring to expose and combat the abuses of the Armed Forces that their commander in chief is unwilling to correct.

    Senators Rodolfo Biazon, Gregorio Honasan and Panfilo Lacson have not shown much eagerness to investigate their “mistahs” [fellow military academy graduates] who have been accused of many misdeeds and shortcomings unbecoming an officer and a gentleman. Let us hope that with the youthful enthusiasm of their new colleague to lead the way, they will together look more closely, representing the supreme civilian authority of the government, into the tattered record of the Armed Forces of the Philippines.

    ^^^ Basta AFP puro utak-pulbura, Your Honor.
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  8. #8

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    Revising the Constitution of 1987

    By Isagani Cruz
    Last updated 05:15am (Mla time) 06/10/2007

    MANILA, Philippines—The 2007 elections are over except for the valid protests that will not be decided before the 2010 elections and so will be conveniently dismissed for having become moot and academic. President Macapagal-Arroyo must now be desperately considering how to retain political power, and presidential immunity as well, now that she has been reduced to a tolerated lame duck with little prospect of electoral redemption.

    It must be a great consolation for her that despite her humiliating defeat in the senatorial elections, the new Senate may still not be able to muster the needed two-thirds vote to convict and remove her if she is impeached by the House of Representatives. Which is practically impossible because she at least continues to control that decrepit body as long as it can gormandize the pork barrel she feeds it like life-sustaining fluid to a brain-dead patient.

    Even so, as things now stand, she cannot see her public persona surviving beyond 2010, when she will be disqualified from running for re-election, even assuming she can win, which is highly improbable.

    The only alternative left her is to become the president again or the prime minister in a parliamentary government that she hopes will prevent her enforced retirement. To this end, she tried to have the Constitution amended or revised through the faulty initiative the Supreme Court decisively struck down last year. She is likely to re-invent the method this year, but there is little hope it will receive the people’s support, which has tremendously diminished with her disgrace in the recent polls.

    The initiative failing again, President Arroyo will perhaps try to persuade Congress to act as a constituent assembly as she and her equally self-interested partner, Speaker Jose de Venecia, attempted last year. That method, if they had pursued it, would have been defeated too because of the known plan of the House of Representatives to replace Congress with a unicameral Parliament without the Senate.

    The last resort available to GMA is Art. XVII, Sec. 3 of the Constitution providing that “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.”

    Like many other Filipinos motivated only by the public good, I believe that the Constitution of 1987 could stand a major revision. For all its many outstanding virtues, this human handiwork “lacking in perfection and perfectibility,” to use the words of Justice Jose P. Laurel, could be vastly improved with the correction of its many shortcomings discovered during the past 20 years.

    However, we should take care that its re-examination is not prompted by personal reasons or pretexts, like the plan of President Arroyo, and President Fidel V. Ramos in 1997, to remove the term limits in the Constitution so they could run for re-election. The fundamental law is chiseled in granite and may be changed only for urgent valid justification, not by infatuations with personalities and ideas less than selfless or meritorious.

    I have two suggestions for the constitutional convention that may be called to re-write the Constitution of 1987.

    The first is that the intended revision should not be scheduled now but only after the 2010 elections, which should include the election of the delegates to the constitutional convention. This will avoid the suspicion, or the reality, that the change is being planned only to accommodate covetous ambitions and not to improve the Charter. Moreover, we will not have to incur the unnecessary expense of holding special elections for the delegates to the proposed body, which, as an added benefit, will not include the members of Congress.

    My second suggestion is to entrust the revision only to civic-minded and intelligent citizens whose only purpose will be to frame a better Constitution. Traditional politicians should be excluded and prevented from diluting that purpose with their usual machinations. The law establishing the body should expressly disqualify such trapos and also their relatives within the third civil degree of consanguinity or affinity as involved in family dynasties disfavored but not prohibited by the present Constitution. The delegates themselves should be ineligible for public elective office for five years from the dissolution of the constitutional convention.

    I know that the second suggestion is rather harsh and will probably be rejected by Congress. Nevertheless, I hope it will accept this draconian precaution for the good of the country and as proof of its laudable intentions. Everyone should cooperate in the worthy effort to adopt the best Constitution ever to insure our prosperity and safeguard our liberty. We owe this imperative mission our common participation.

    ^^^ Tama ng Cha-Cha, TAKATAK na lang!
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  9. #9

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    Tantrums of the demigod

    By Antonio J. Montalvan II
    Last updated 01:05am (Mla time) 07/02/2007

    MANILA, Philippines - Eleven million voters were wrong. That's 11 million voters who were mesmerized by Antonio Trillanes IV as a knight in shining armor who comes to save the republic from the ignominy of an unpopular administration.

    But mesmerized by what, search me please. His words do not enthrall. His pronouncements are no spellbinders. In fact, I suspect there is nothing between those ears. His oft-repeated boo-boo that he will initiate the impeachment process in the Senate against Gloria Macapagal-Arroyo only exposes his gross ignorance of the legislative process.

    Now comes Ramon Tulfo's findings, supported by documentary evidence, that the guy is not even the epitome of the swashbuckling hero against government corruption that he has styled himself to be. And if Tulfo were to be believed, not only the 11 million Trillanes voters but the entire republic itself should now endure the empty antics of a pseudo-hero for the next six years, in a Senate that has long ago contradicted its traditional designation as an august body.

    Tulfo calls him the "boy with a new toy." I think he is your typical neighborhood bully in a perpetual tantrum who simply calls attention to himself.

    But even long before Tulfo made known his findings of the man whose personal life is largely hidden from public knowledge, we should be thankful to the Dutchman Adriaan de Jager and his Filipina wife Ana Santarin who related the injustices they had to endure under Navy Lieutenant Trillanes.

    They were evicted by Trillanes from their Novaliches property without any court order; Trillanes swooped down on the De Jager home with a gang of armed goons. He did not even introduce himself as a Navy lieutenant, but reportedly misrepresented himself as a businessman. Trillanes later used the basement of the house to store a cache of explosives and ammunitions. Because of that, De Jager languished in jail for 15 months.

    Do all these sound familiar? Those of us who lived through the Marcos dictatorship should hear bells ringing. The whole Trillanes adventure reeks of politicized military men using their misplaced powers to abuse their role as protectors of the state. That is the bottom line. Military men, including Lacson and Biazon and Honasan, have entered the fray of politics out of a confusion that stemmed from the immense powers the military acquired during the Marcos regime.

    But what makes Trillanes a worse case is the sheer hypocrisy of his pronouncements that seemed to have clinched the good impression voters had of him. The anti-corruption demigod that he now is was a lieutenant senior grade in the Philippine Navy whose monthly pay was less than P20,000, but who had the luxury of a Mitsubishi Pajero, a Nissan Terrano, five Mitsubishi Delicas and a Kawasaki motorcycle.

    Completing what should make for the glitz of a lifestyle that belongs only to the rich and famous is a posh unit in the Town and Country Club Executive Village in Antipolo. But Trillanes made sure to maintain his "poor and honest" image by listing BF Homes Caloocan as his address in his certificate of candidacy. Tulfo found out that that is the residence of Trillanes' mother. The 11 million voters have been had.

    Can anyone please tell me the new definition of moral ascendancy?

    The Trillanes campaign was reportedly bankrolled by Jamby Madrigal, another of our more confused senators. But the tittle-tattle says more, that it was actually greased by Estrada money whose jailed patriarch made sure Trillanes won. That is certainly plausible. The disgraced former president always gets linked to anything that has the potential of undermining the administration of his equally disgraceful nemesis in Malaca¤ang.

    The storyline has always been clear: accusers are no different from the accused. Ours is a politics of personalities who all represent the same socio-economic and political interests. Does anything surprise us? Nothing should. Under our hypocritical political system, anything is possible. A mutineer becomes senator. Lintang Bedol gets kid-gloves treatment for dereliction of duty. Lani Cayetano gets elected as congresswoman. Dato Arroyo gets minted as the latest dynast in his family. The fightingest anti-Marcos Pimentels are now dynasts too like the late dictator's family. And the Binay family is in power eternally. And more of their ilk in the rest of these 7,100 islands.

    Meanwhile, the neighborhood bully with the perpetual tantrum who thinks he is your formidable demigod against other bullies is now in the Senate.

    When will the real hero come to save this republic?

    ^^^ Welcome to the Senate, Mr Trillanes...
    "Kung ayaw mong masaktan mag-chess ka na lang!"

  10. #10

    Re: OBJECTION Your Honor! Mag-Legal Legal-an muna tayo.

    This is one reason why Rina Jimenez David just makes my day...

    A Sunday dress code

    By Rina Jimenez-David
    Last updated 01:09am (Mla time) 07/03/2007

    "Another newspaper had on its front page yesterday a picture of folks entering a Catholic church presumably for Sunday Mass wearing decidedly casual clothes. One man was even shown wearing floral-printed “puruntong” shorts and rubber slippers, which I seriously doubt would qualify as the classier-sounding “flip flops” that cost much more but look a lot like the lowly "tsinelas."

    Anyway, the decision to allot such major space on the front page of a daily to what people were wearing in church was justified in the caption citing a dress code issued by the Archdiocese of Manila last week.

    The “dress code,” presented in a poster issued to the various parishes in the archdiocese, says the regulations on “proper” and “improper” dress during Sunday Mass are based on “our dignity as baptized children of God,” and that “the sacredness of the Eucharistic celebration urges all participants to dress, manifest the importance of what they are doing.”

    In a circular, Fr. Godwin Tatlonghari, assistant minister of the archdiocese’s Ministry of Liturgical Affairs, said the guidelines were a response to “many requests” they had received from Mass-goers who were disturbed by other members of the faithful “who come to church to attend Mass or other liturgical functions garbed in a way that disrespects the sanctity of the House of God and the sacredness of the Liturgical Celebration.”

    The poster illustrates what constitutes “proper” and “improper” outfits for Sunday Mass and other liturgical celebrations. While “proper” garb calls for the usual short-sleeved or long-sleeved shirts, pants, dresses or uniforms, the injunctions against wearing certain types of clothes in Church seem more interesting.

    “Improper” church attire seems to consist of anything that bares one’s shoulders or arms, such as sleeveless or spaghetti-strapped tops and sports jerseys, reveals too much leg, like shorts or miniskirts, or directs the eye downward, such as blouses with plunging necklines. And yet, the pious faithful also seem disturbed by men wearing baseball caps inside church, which has been deemed “improper.” (Would a jaunty fedora qualify as “proper” garb?)

    * * *

    TO THINK we are decades away from the era when women and girls had to check where their hemlines fell before they felt they could go to Mass, or lugged along lacy veils to wear on their heads before entering a church.

    When I was in grade school, a teacher warned us to make sure we were dressed properly for Sunday Mass because she heard Mass in different churches and if she spotted any of us wearing a too-short or sleeveless dress, she would personally haul us out of the Communion line.

    I wondered then -- and still do now -- what Catholics had against bare arms. Were they an occasion for sin? I would think being required to move around at the height of a tropical summer in long-sleeved shirts and trousers would be a bigger sin. I mean, who could keep one’s mind on the Mass then?

    I suppose we can blame Vatican II for this, as a result of which women religious finally abandoned their wimples and floor-grazing habits, and women gleefully shucked off their veils, along with missals and kneelers.

    We’ve certainly come a long way from the days when we took pains with our Sunday outfits, dressing up in frilly party dresses or discreet white habits with blue sashes; to these days when everyone in church seems dressed for a picnic, or a beach party.

    * * *

    THEN again, I suppose people for whom loose cotton shorts and plain T-shirts, rubber slippers and jeans constitute dressy attire, the new, more relaxed dress code would have been a welcome development.

    After all, not everybody can afford to dress up for Sunday Mass, or else their idea of “dressing up” might not be what their more prosperous co-parishioners would consider decent wear. But if the lack of proper attire keeps the poor and disadvantaged “unchurched,” too embarrassed to show up in the House of God looking disheveled, then I say, to hell with a dress code! The major concern of parish priests and lay leaders should be to get people to go to church, not to pose as fashion police.

    And if Mass-goers are distracted by bare arms, knobby knees and colorful baseball caps, then I think they’re not paying enough attention to what’s going on at the altar, or what their hearts and minds are telling them. If you go to Mass intent on policing what other people are wearing or doing, then you’re going to church for the wrong reasons.

    I would think our social and religious betters aren’t giving God enough credit if they think He’d be scandalized by the fashion of the day. From what I know, He’s more concerned about what’s going on inside of us, not what we wear on Sundays.

    * * *

    THIS reminds me of a priest who warned his parishioners that women who were wearing IUDs would not be allowed to receive Communion in his parish. I wondered how he proposed to carry this out. Would he post himself at the Church door each Sunday and conduct an internal exam to search every woman for telltale signs of an IUD?

    Who knows the state of the soul of every Mass-goer? Even if he should be clad in "puruntong" shorts, or she was traipsing along in a strapless, backless gown, does that necessarily reflect the person’s state of grace -- or sin? Bringing people closer to God is the point of a community liturgical celebration, not a picture-perfect congregation hewing to the standards of some Order of Decency."

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