Friday, July 07, 2006

A perpetuity in juridical misadventures

(This post originally entitled “Reconsidering whose final decision” was first published by on March 24, 2001. It was reposted in this blog on January 5, 2006. I am re-reposting it here under a more appropriate title, I think, because of some re-renewed questions on the ascension to the presidency of Gloria Macapagal-Arroyo(GMA) in 2001 and in the light of some new interest five years after in General Danilo Lim’s “attempted withdrawal of support” from Arroyo’s presidency under a new term that has been tainted by the “Garci tapes” scandal.)


Former senator Rene Saguisag was back with more lures after the Supreme Court had decided in Estrada vs. Desierto (March 2, 2001) to demote People Power II to an inchoate cousin of People Power I. And the SC is likely to allow itself to be coaxed once again to take more missteps and be entrapped to a perpetuity in juridical misadventures [Dean Jorge Bocobo here and here, and Dean Raul Pangalangan have picked up anew from where Rene for now left off].

To put it more succinctly, the SC in Estrada has held that President Estrada’s six-year tenure as a duly elected president of the Republic was cut short because a throng of protestors talked, rather than forced, him out of it. Erap says, “No way, I was just a bit tired then and wanted some respite.” Hence, Rene’s petition, and now his motion for reconsideration. The seeming recalcitrance of the once gutsy human right’s lawyer (who founded MABINI) was almost annoying to some partisans, but others are translating it as a stratagem that looks more political than scholastic or legal, given that the [outcome of the mid-term senatorial elections of May 2001] could be seen as the more objective gauge of [the legitimacy of People Power II.] (1)

Erap did a Macoy
Anyway, what the various accounts appear to show is that Erap simply did a Macoy, his rogue kingpin image being just as mythical as his mentor’s war medals. Erap decided to jump into the waiting barge in the Pasig River because he was as craven as Marcos to be dangled by the raging multitude on a Malacañang lamppost. If, as the SC found, People Power II were a mere exercise of free speech and a way to petition the government for redress of grievance within the framework of the existing legal and constitutional order and not an uprising that overturned such order, then how does the SC define the crime against public order of insurrection, and the lesser crimes of sedition, tumults and other public disturbances for that matter, or, otherwise, disloyalty of public officers as regards all the self-confessed schemers and tumultuous dissenters who have risen in a “tsunami” of public uprising? And again, as the SC so found, hasn’t Armed Forces Chief of Staff Angelo Reyes “defected,” instead of resisting the uprising, by declaring “on behalf of your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government”? (Italics mine.)

The Left and the Right in perfect cadence
Now, review this narration by former Armed Forces Chief of Staff and General Lisandro Abadia (ret.) that was published by the Philippine Inquirer in its March 2, 2001 issue:
It was surreal. I felt like I was Chief of Staff again, but this time, conferring with and giving instructions to a rainbow army. The Left and the Right seemed to be marching in perfect cadence.

Who were in that room? Apart from myself, the agreed overall planner and commander, there were Metro Manila police chief Edgardo Aglipay, Western Police District chief Avelino Razon Jr., Teddy Casiño of Bayan, Nathanael Santiago of Bayan Muna, Dinky Soliman, retired Vice Adm. Armando Madamba, Fr. Robert Reyes and their assistants.

When I asked Nathanael and Teddy for the strength of their forces, they gave figures from a low of 50,000 to a high of 100,000. Then I asked Generals Aglipay and Razon for the number of police troops they would commit to the area. They assured me of 1,200, with reserves on standby. When I asked about the whereabouts of the pro-Estrada forces, they answered that they would be at Mendiola.
And before “(going) for the jugular by marching to Malacañang,” Gen. Abadia further recounted:
There are things that are not quite clear to you, and so you have to make assumptions. And one must anticipate the enemy’s intentions using intelligence information. All of these data and assumptions are analyzed until one finally forms a course of action. I’ve been retired for nearly seven years but the military planning habit has not left me.
The proof is in the diary?
The month before, or in its February 4, 5, and 6, 2001 issues, the Philippine Inquirer had serialized the diary of former Executive Secretary Edgardo Angara and the SC relied on Angara’s diary to resolve the crux of the matter - that Estrada was not ousted; he simply “resigned.” Couldn’t anyone by any plain reasoning just regard the People Power II uprising as a mere exercise in free speech and peaceably to assemble any more than the SC could construe the diary of Angara as proof of Erap’s resignation?

Let’s look at the following letter that GMA faxed to the SC before her oath-taking, which the main opinion conveniently omitted to cite:
The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently incapable of performing the duties of his office resulting in his permanent disability to govern and serve his unexpired term. Almost all of his cabinet members have resigned and the Philippine National Police have withdrawn their support for Joseph Ejercito Estrada. Civil Society has likewise refused to recognize him as President.

In view of this, I am assuming the position of the President of the Republic of the Philippines. Accordingly, I would like to take my oath as President of the Republic before the Honorable Chief Justice Hilario G. Davide, Jr., today, 20 January 2001, 12:00 noon at Edsa Shrine, Quezon City, Metro Manila.

May I have the honor to invite the members of the Honorable Court to attend the oath-taking.
People Power, not SC, installed GMA
The letter indicated that not only did GMA not talk about resignation on the part of Erap, she also assumed the presidency (after being installed by a successful popular revolt) BEFORE her oath-taking. If for no other purpose than to affirm what legal order shall be applicable thenceforth, the oath-taking was no more than a ceremonial icing on the cake. And note likewise that when GMA said in the letter that “Civil Society has likewise refused to recognize him (Erap) as President,” the “C” in Civil and the “S” in Society were in capital letters, signifying that GMA was using the term in its classical acceptation, meaning that the body politic itself (not the “hooting throng” as Justice Puno’s obiter dictum put it) has made its decision extra-constitutionally. Until the moment then that GMA took her oath to serve under the 1987 Constitution, there could have been no juristic distinction between the extra-constitutional character of the Aquino government during the 1986 revolt and revolutionary takeover of the government by the Civil Society following the People Power II uprising.

That’s how Rene Saguisag should have seen it having been on the other side of the fence during the first People Power. But since the GMA people have not taken the same path, Rene has had a field day taunting both the SC and the GMA government.

I have earlier advanced that a popular revolt is an ultimate exercise of political power; that People Power I and People Power II are of parallel dimension; that the underlying expediency of both revolts is beyond the review and sanction of any other authority inferior to the Civil Society (therefore, a “political question” the Supreme Court cannot rule upon); that the only possible sanction against a people’s revolt is the harsh consequences of its failure; and that, if otherwise successful, the revolutionists would be free to set new rules and use or set aside existing ones. Therefore, that GMA, as the acknowledged leading representative of the rebelling Civil Society, has chosen to revert to the legal order of the status quo ante (by taking her oath under the existing constitution), which the exultant rebels have compliantly acquiesced in, opting in that way for incremental rather than radical transformation, is no valid argument that the revolt was not successfully completed.

Davide disrobed
It was in the same light I have argued that Chief Justice Davide’s decision in administering GMA’s oath was a patriotic class act of an instant revolutionist who wisely stepped down as the presiding officer of the impeachment proceedings to join the multitude at EDSA. (2) The exercise served as a moderating event during those critical and uncertain hours while it also set the turning point to reestablish immediate continuity with the past. The interval was indeed brief but enough to legitimately install GMA as leader of a new regime.

Justice Vicente Mendoza in his concurring opinion was of the view that the uprising only created a “crisis, nay, a vacuum in the executive leadership.” Didn’t John Locke confront this issue a long time ago in his Second Treatise on Civil Government? Locke postulated that “(w)hen the supreme executive power neglects or abandons that charge,” the government is effectively dissolved for, “where the laws cannot be executed it is all one as if there were no laws . . ..”

‘Dirty 11’ helped cracked the system
I have disagreed, in one exchange, with such a proposition as Justice Mendoza’s more specifically in this manner:
It should be noted that the “system in place” was illegitimated as the people’s consciousness about the fundamental crack in the system was hastened by the education provided by the impeachment trial through the intercession of information technology and, of course, the ubiquitous media. The realization that the government has been criminalized by the likes of Atong Ang and Dante Tan, that the malevolence of patron-client complex is not a leftist concoction after all, that the people’s representatives in the legislature personified by the ‘‘Dirty 11” [the eleven senators who voted during the impeachment against the opening of the envelope believed to contain evidence incriminating Estrada] would openly pursue narrow selfish interests at the expense of salus populi, and that establishment icons like retired Chief Justice Andres Narvasa and former Solicitor General Estelito Mendoza could mock and manipulate the legal and judicial system through all the legalistic chicanery at their disposal, all contributed to the illegitimation of the “system in place.’’
Through people power, the people collectively aspired to overthrow the system via the symbolic ouster of Erap, whom they perceived as the man at the helm of the status quo ante. The people revolted with the full knowledge that Erap is not the only enemy. They saw that the real enemy is the “system in place. ”

On the other hand, Justice Jose Vitug in his own concurring opinion has submitted that “(a)ny revolution, whether it is violent or not, involves a radical change” and that what is “vital is not the change in the personalities but a change in the structure.” Noting further that “(t)he ascension of Mme. Macapagal-Arroyo to the presidency (not having resulted in) the rupture nor in the abrogation of the legal order, . . . (t)he constitutionally-established government structures, embracing various offices under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and still other entities, including the Armed Forces of the Philippines and the Philippine National Police and local governments as well, have all remained intact and functioning.”

Justice Vitug has obviously failed to distinguish between a revolution as a process and a revolution as an immediate outcome. While both People Power I and People Power II were successful revolts, they are however somehow intricately linked together as a continuing and unfinished revolution of the Filipino People. GMA herself has said post-revolt: The fight is not over yet.

Jefferson: revolution is good
More reminders from an elder: Thomas Jefferson once held the belief that a revolution about every generation would be good for society. Such a view could very well be an indictment of the elitist root of republicanism. But the United States, like other older large-scale democracies, has somehow gone the route of democratic elitism that looks down upon popular action, what the trilateralists of the 70s called as “excess of democracy.” The challenge of older democracies is really how they could continue to enshroud democratic elitism with the rhetoric of republicanism. To the Filipinos, the challenge, I suppose, is how to perfect their re-invented system of representative government co-existing with People Power. As societies become more and more compressed as a result of technology, it would seem that Jefferson’s populist idea wasn’t wistful thinking after all. Filipinos have proved it twice in a row, and peacefully, securing, deepening, and further advancing in the process their democratic culture, beliefs, and institutions. That’s an excellent batting average.

In some contorted way, probably equivalent to the whiffling career of Rene Saguisag, Filipinos ought to laud his second quixotic charge if only for the rare historic opportunity thus offered for the Supreme Court to reverse itself in favor of People Power. But whichever way the SC would have gone, (3) the result of the May 2001 elections should be seen as the better test of People Power II.


(1) I have argued that if the May 2001 senatorial elections, in which the administration candidates won 8-5, were also a referendum, it ought to be seen as just another legitimation of People Power II rather than a measure of the performance of the four-month old government of GMA at that time.

(2) The question about the rebellious complexion of the act Chief Justice Davide has been answered, clearly but quite unintentionally, by Justice Artemio V. Panganiban, Davide’s comrade-in-arms during the uprising. In his book Reforming the Judiciary, Justice Panganiban wrote:
(F)rankly, I am still wondering up to now how I had summoned the courage to propose the oath-taking of Mrs. Arroyo even when she had not yet requested it, and even when President Estrada was still in Malacañang; and why Chief Justice Davide immediately agreed to it, even prior to consultation with the other justices.

The Chief Justice and I both knew that the Supreme Court was a passive institution and that, ordinarily, justices did not take active part in political events. The Court’s extraordinary action to resolve an extraordinary situation can only be explained as the work of the Holy Spirit on both of us and, in fact, on all the key players of EDSA 2. (Italics mine)
In the main, the “rebelling” justices have been, I believe, in some constitutional bind today - but certainly not the GMA government owing to many legitimating factors such as the recognition by various political institutions in the Philippine and by the international community - because of twin faux pas, namely: 1) the timidity of GMA to declare a revolutionary government, and 2) the undue activism of the Supreme Court in passing upon and yet denying the people-powered ascendancy to the presidency of GMA, which is essentially a political question. In strict constitutional sense, the juridical order not having been altered or perturbed by the logic of the Supreme Court’s own rulings, EDSA II notwithstanding, one would be hard put to defend the constitutionality of the acts of Davide, et al. But then again, who has the final say to say so?

(3) Saguisag’s motion for reconsideration was eventually thrown out on April 3, 2001 but in June 2003, Saguisag bounced back with an impeachment complaint charging eight justices of the Supreme Court with conspiring to allow President Macapagal-Arroyo to take away the presidency from Estrada. The Lower House however voted down the impeachment complaint for “insufficiency of substance,” the first of the two impeachments “initiated” against Davide.

Posts about post:

1) To be or not to be a rebel

(This post, which I made in on January 20, 2001, beat Erap’s exit into the Pasig River)

abe: Why can’t the army or the police (that rode on the crest of a successful revolt) just apprehend a forlorn Erap holed up in the Palace and prosecute him for all his supposed crimes instead of negotiating with him? Well, the reason is (are you ready for it?) “legal technicality,” - yes, one of the same variety as “immaterial and irrelevant” [I was referring here to the technicality then raised by Erap’s defense counsels at the impeachment trial.]

The technicality is about the incompatibility of EDSA People Power II revolution with the legal processes of the constitutional system under the status quo ante. A victorious revolution could theoretically mean the collapse of the existing government and the legal structures that underpin it. Hence, if Erap were ousted by a successful revolution and not by his own resignation under the 1987 Constitution, GMA would assume power under a revolutionary government. It is “legal gobbledegook” but that’s how Cory’s government was established following the 1986 “people power” revolt, now better known as People Power I.

What’s wrong with GMA heading a revolutionary government? A lot. It could mean for instance that all the distinguished members of Congress as well as Chief Justice Davide and his robed brethren could loss their job by just a stroke of a pen over one proclamation by the revolutionary authority (read: GMA). All offices of local government units, elective or otherwise, could be declared vacant in a similar fashion. Scary? Well, Cory was once entrusted with all those awesome powers under the same principle. Fortunately, by the same legal gobbledegook, GMA could also as easily issue a proclamation to the effect that by virtue of her revolutionary powers, she would be placing her government under the authority of the 1987 Constitution. As sweet and simple as that.

Now, should GMA use her revolutionary powers to fast-track the fundamental societal, economic and political reforms the country needs to transform itself? Considering how her accelerated path to power has been invested with the high emotions of a popular revolt, then that would certainly be a tough call. But isn’t this instant moment the true crucible of a leader - a defining moment, so to speak? What if the national consensus would support such a course, would she take it against the wishes of “vested interests,” either from the Left or from the Right?

2) A people’s choice

(This is my entry in this blog on March 15, 2005 generally in reaction to Dean Bocobo’s perpetual beating of the carrion of a dead horse)

In a democracy, the governor rules only by the consent of the governed, the people.

The people, acting collectively, are the source of all political authorities and consent to delegate certain authority is given by them during election. Hence, when an election is generally perceived as not free, fair and honest, the consent is tainted.

A tainted consent vitiates the authority delegated, by way of the election, to the governor, so that unless the delegation is revalidated by some act or conduct that amounts to acquiescence on the part of the people, the taint will continue to attach to the authority of the governor and open to question the legitimacy of the rule. For a governor to rule with a tainted authority is to do so only under color of authority, not with true authority.

When once people power-averse vice president Arroyo had been swept to power, I was among those who argued very strongly for the legitimacy of her government so established via People Power, upon the following grounds:

1. People Power I was indistinguishable from People Power II; in both instances the people withdrew their consent through the exercise of the right of rebellion.

2. Rebellion is an ultimate political act of the people; it is borne out by its success, hence, any imprimatur given by any other agency including the Supreme Court on the new government installed by the rebellion is unnecessary, a surplusage.

3. Specifically, the withdrawal of support from the Estrada government was so widespread – i.e., from the two Houses of Congress and the Impeachment Court to the military establishment and a wide range of civil society groups - it was impossible for Estrada to continue to govern under his “ousted” regime; withdrawal of the people’s consent proceeded from it.

4. The international community immediately recognized the Arroyo government as the “successor” regime they would be willing to deal with.

In my view, the foregoing political and other relevant events acted upon each other and served as operative factors legitimizing the Arroyo regime with or without the contorted decision of the Supreme Court in Estrada v. Desierto (whereby Estrada was deemed by the Court to have left his office by “constructive resignation” paving the succession of Arroyo to the presidency).

I have also argued that the successful defense of the Republic by the Arroyo government during the EDSA Tres uprising, considered by many as Estrada’s attempt to recapture his office (only four months after Arroyo had assumed the presidency and about two weeks before the mid-term senatorial elections of May 2001 where the administration candidates won 8-5) co-opted the outcome of the elections as the political coups de grace in ultimately completing the legitimation of her administration. The whole world was then assured the Arroyo government could withstand a rebellion and criminal conspiracy of a dimension not seen even during Marcos.

The reasons I gave why Arroyo had easily thwarted the uprising were: “Firstly, the insurrection has been real and has not been stage-managed by her or her close allies in order to perpetuate themselves in power. Secondly, the Philippine military and the PNP have just been through a recent examination of conscience during People Power II that had put to an acid test the true attributes of their professionalism. Finally (and this is something transcendental and therefore, extra-constitutional), Mother Mary, whose shrine had been desecrated by the rebels, sided with GMA.”

Why should I now think the legitimacy of the Arroyo government is imperiled today? Two things: 1) The “Garci tapes” controversy constitutes a strong prima facie presumption of illegitimacy; and 2) The presumption, not being thoroughly refuted in any forum, remains.

The presumption standing, the people’s consent for Arroyo to continue ruling is tainted.

What is obviously undeniable is that the existence of the Garci tapes strikes at the essence of an election, a betrayal of public trust that cannot possibly be let off or forgiven by the mere convenience of admitting to a “lapse in judgment.” The burden of going forward, that is, to show that those tapes are bogus, adulterated or non-existent is thereupon on the lapse of Arroyo. It is a burden that cannot be dodged or wished away simply because Arroyo’s supporters in the House have voted on procedural grounds not to allow a full-dress impeachment hearing on the matter. On the contrary, this whole conduct of Arroyo’s congressional allies has only reinforced the general perception that the people’s consent was thwarted, the election not having been free, fair and honest in the first place. In view of this, Arroyo today is governing only under color of authority or, at the most, apparent authority but not with true authority.

If Arroyo continues to hang on to rule with a tainted authority without the benefit of public acquiescence even as a large segment of the polity continues to agitate for reasonable elucidation or raise more questions about the “Garci tapes” scandal, then the people shall have the right to authenticate their consent in a new election, through the un-election process called impeachment or by the exercise of the right of rebellion - at the people’s discretion.

3) The silent conspiracy

(This is my June 12, 2006 entry explaining how the illegitimacy of Arroyo’s presidency has morphed)

Here and also here, the thesis advanced in this site points out why People Power has been intently, patiently and wisely on a stakeout over what would become of the government of Gloria-Macapagal Arroyo. It’s been an attempt to explain away the other proposition that People Power has simply worn out (or “fatigued”) itself, thereby losing the potency to inspire.

It may be well to note however that the legitimacy of the Arroyo government morphed into a “regime” status not during the ousting of Estrada by the exercise of people power in 2001, but at the constitutionally mandated canvass in Congress of the votes cast in the presidential election of May 2004. Many Filipinos still believe the canvass was crudely handled by Arroyo’s allies which command overwhelming majority in Congress to proclaim her the elected president.

No sooner than the outing of the “Garci tapes” the embryonic phantom of illicitness quickly turned into a fuller life form; ever since, Arroyo has been on a survival mode. But the outcome of her impeachment, haphazardly utilized by her fragmented political adversaries, has afforded her instead some essential gasping respite as she manages quite skillfully to stay afloat in a sea of political uncertainty.

The question remains thus: Is People Power just being watchful over the way the political lifeboat of Arroyo is behaving or is it actively contemplating ways to “rock the boat”?

To be sure, there exits institutional resistance even to a “regime change,” not to speak of some larger or systemic transformation. The mindset of the middle class is one such source of resistance. What amounts for example as the naivete “let’s move on” call of Bong Austero, exploited in many ways by the status quo defenders, has been seen by some quarters to be a pushback or a copout from any meaningful change in Philippine society, the perception being that it was more in keeping with the let’s-sweep-the-dirt-under-the-rug mentality.

In hindsight, maybe it should be recalled that Cory Aquino and her largely middle class adherents have not been so expected to act as genuine transformational, much less revolutionary, agents. While People Power I was beyond doubt successful in its bid for a regime change - the termination of Marcos dictatorship and the restoration of pre-martial law democracy - Cory also served as a “stabilizing” agent, the right persona at the time to preserve the status quo, instituting only perimetric changes in the process. Be that as it may, her lasting legacy to the Filipinos is the 1987 Charter which has laid the constitutional groundwork for People Power.

If Cory Aquino had been an unwilling housewife shoved into the larger-than-life shoes of her martyred spouse, Gloria Macapagal-Arroyo was an accidental rebel whose uncomplimentary branding as such was graciously sugar-coated by a calculating Supreme Court upon conveniently invoking the constitutional provisions on succession. The Court has decided to interpret the confluence of events surrounding People Power II as leading to Estrada’s “constructive resignation” in the constitutional sense. But People Power II attaining no more than “personnel change” was certainly of lesser substantive dimension than the first uprising. To the status quo beneficiaries, as well as defenders like Austero and others of his kind, Arroyo notwithstanding her “flaws” is still a safer bet for stability.

Arroyo’s staying power is comparable in reverse to the surge to victory of erstwhile president Alan Garcia during the recently held presidential runoff election in Peru. The former Peruvian leader overcame a sizeable lead of nationalist and populist Ollanta Humala by his better reading of the middle class mindset. Garcia, who had already let down Peru by disastrously governing the country between 1985 and 1990, portrayed the presidential contest as a choice between American imperialism and Venezuelan interventionism (Humala having allied his political and economic agendas with the “Bolivarian revolution” of Venezuelan leader Hugo Chavez). Peruvians voted for stability by keeping the status quo and returned Garcia to power, his notorious record of failure notwithstanding.

A very noteworthy commenter in Pinoy political blogosphere (he posts by his initials cvj) has seen similar writing on the wall. He is one serious commenter who has fervently differed from the stance articulated by Austero that has caught the fancy of the “silenced” middle. The Filipino middle class was once at the center of the two uprisings, but cvj believes that “by foolishly casting its lot with Arroyo, (it) becomes complicit with her failings.” The indictment sounds more like conspiracy by silence.


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