Thursday, March 8, 2018


Members of the Supreme Court.

We are not final because we are infallible, but we are infallible only because we are final. These astute words from U.S. Supreme Court Justice Robert Jackson will once again find relevance if the Philippine Supreme Court were to grant the quo warranto petition of Solicitor General Jose Calida to unseat Supreme Court Chief Justice Lourdes Sereno.

While it is beyond doubt – well, until now that is – that the chief justice can only be removed by impeachment under the Constitution, majority of the members of the Supreme Court, who have shown antagonism towards the Chief Justice and seeming fealty to the current administration, may hand down yet another controversial decision that will assert more the finality of the Court rather than its infallibility as interpreter of the law of the land.  

Although it was careful to qualify its order by the phrase “without giving due course to the petition,” the mere fact that the Court entertained Calida’s petition by requiring the Chief Justice to comment rather than dismiss it outright gives one the chills of where this Court can go.

Of course, this will not be the first time that the Court will depart from its traditional role of guardian to the Constitution if ever it decides to skirt the impeachment process and unceremoniously removes the Chief Justice from office. As the final voice on what the law is, the Court has on several occasions handed down decisions that were seen more as serving political ends rather than fidelity to the meaning of the law.

That the Supreme Court ultimately decides along political considerations in political cases is expected, for after all its members are appointed by the highest political entity of the government, the president. Inevitably, the majority that don the same political color declare what the law is consistent with the interests of their political patron.

But to overturn a well-established rule, created by no less than the Constitution, that the officials enumerated under Article XI (2) of the Constitution – which includes members of the Supreme Court – may only be removed from office by impeachment is a flagrant flouting of the rule of law.  Notably, the Supreme Court itself has consistently held in Cuenco v. Fernan, In re Gonzales, Jarque v. Desierto, and Marcoleta v. Borra that the impeachable officials under Article XI (2) can only be removed from office via the impeachment route and this cannot be circumvented by resorting to other means of removal.

In  Cuenco, for example, the disbarment case brought against then Supreme Court Justice Marcelo Fernan (who later became chief justice) was dismissed for being an attempt to remove an impeachable official via another route not allowed by the Constitution. The Court noted that since one can only become a member of the Supreme Court by being an attorney, to disbar a member of the Court would be equivalent to removing him from office which cannot be done because he can only be removed by impeachment.

The members of the Supreme Court must remain steadfast and resist any importuning albeit powerful if the Court were to remain guardian of the Constitution and protector of the rule of law. Giving due course to Calida’s petition is a first step toward the crumbling of the pillars on the edifice of the Court.

Friday, November 10, 2017


One of the hardest things about being a president is owning up or taking the blame every time a high profile military operation goes south.  Imagine if Oplan Geronimo, the U.S. military operation that led to the killing of Osama Bin Laden were a failure?  President Obama would have taken tons of criticisms from his political opponents.  Remember the military operation to rescue hostages from the U.S. Embassy in Iran that was prematurely aborted when the helicopters carrying U.S. commandos crashed?  It cost Jimmy Carter’s reelection bid against Ronald Reagan.
SAF Policemen carry their fallen comrades.

And so it is with Mamasapano, which resulted in the slaughter of 44 police commandos.  Former President Noynoy Aquino took the heat for this tragic incident and until now his political opponents are using it to discredit his administration, not least among them is current President Rodrigo Duterte.  But while it is a given that presidents must own up or take full responsibility for every failed military or police operation, fairness demands that culpability must be clearly shown.

As in every military or police operation, the decision-making process that goes into a mission must be understood as being divided into the policy and operational levels. The policy level is the domain of the President, which has something to do with the performance of his duties as the country’s chief executive that calls for the exercise of his discretion in balancing the imperatives of national security and political implications of his actions.  On the operational level, this is the domain of the military or police advisers and personnel who will carry out the mission.

When Oplan Wolverine, the name of the mission to capture wanted terrorist bomb-maker Sulkifli bin Hir (also known as Marwan), was planned, there was an ongoing peace talks and ceasefire between the government and MILF-BIFF forces.  Intel reports point to Mamasapano, an area controlled by MILF-BIFF, as the hiding place of Marwan.  This calls for Pnoy’s discretion on whether to proceed with the operation without informing the MILF-BIFF, which would be in breach of the terms of the ceasefire, or coordinate with them at the risk of forewarning the elusive Marwan of the impending operation to capture him.

The other option is for President Aquino to wait for another opportunity to avoid jeopardizing the peace process with the Moro rebels.  This would, however, clash with his duty to protect the citizens from harm by promptly apprehending and neutralizing terrorists.  Letting go of the window of opportunity they got in catching Marwan may have devastating consequences as the latter and his cohorts may soon carry out bombings that could kill and maim a lot of people.

Here was a real dilemma facing President Aquino.  But as president, he must make a decision and whatever decision he makes he will have to own up and live to it.  This is the policy level of the decision-making process and if President Aquino were to be made culpable, his actions should be gauged by the decision he made at this level and the soundness of the reasons for it. 

Of course, we now know that President Aquino greenlighted the operation without coordination with the MILF-BIFF.  There was no question Marwan must be captured or neutralized and there was probably an urgency to do so, as there is no telling of the carnage he may cause unless sooner captured or neutralized.  It was also probably worth the risk of jeopardizing the peace process with the MILF-BIFF as the fact that Marwan, a high value terrorist target, is in hiding in their lair could be a sign of their double dealing with the government.  After all, negotiating a truce with the Moro rebels is discretionary on the government, but capturing and neutralizing terrorists is a duty or obligation in protecting the citizens.

Another aspect of the policy level of decision-making process is for the President to ensure that the operation would have a high probability of success and minimal risks to the troops.  At the very minimum, he must see to it that the plan is feasible and would very likely succeed – as no one can guarantee the success of any military or police operation -  and that there are contingency measures or back up plans to minimize the risks of harm to the operatives who will carry out the mission.

The above factors are of course dependent on the inputs of his military or police advisers.  The President, even one with a military experience, is not expected to know the intricacies of military or police strategies and tactics.  That is why he has experts who will advise him on the matter.  He relies on the assessments and recommendations of his military and police advisers.  Which unit will carry out the mission, how many men are needed, what type of weaponries, the timing, etc., are not within the competence of the President.  These are the nitty-gritties of military or police planning and operation which only the President’s military or police generals can decide.  The President need only be satisfied and assured of the high probability of success of the mission with minimum casualties.

In the U.S. mission to capture Osama Bin Laden, then U.S. President Obama was faced with the dilemma of intruding into the territory of Pakistan and not having 100% identification of Bin Laden.  Intel reports cannot provide absolute certainty on the identity of the man found in a secured house in Abbottabad, Pakistan as that of being Bin Laden.  The decision to proceed with the mission at the risk of a diplomatic war with Pakistan and without 100% identification of Bin Laden was Obama’s decision alone as the chief executive, while the decision to have the U.S. Navy’s SEAL Team Six carry out the operation, instead of the more secretive and equally highly trained counter-terrorist unit Delta Force, and the manner of carrying out the mission were his military advisers and commanders’ decision.  The former is the policy-level while the latter is the operational level. 

At the operational level of the decision-making process in Mamasapano is Director Getulio Napenas, the head of the Police SAF, and then suspended Chief of the Philippine National Police (Chief PNP) Director General Alan Purisima.   Again, it is their call, especially SAF Commander Napenas, as to which unit will carry out the mission, the type of weaponries to use, the number of personnel needed, the timing of the operation and the type of back-up or contingency plans to adopt.  This is their realm of competence upon which the President can only rely.  The actual field commanders in the operation are the ones who will also call the shots as they lead their men during the course of the mission. 

So, what exactly went wrong with the operation?  Based on reports and investigations, the Seaborne Unit of the SAF were overpowered by the huge BIFF forces nearby, who scrambled into action when they heard gunfires during Marwan’s apprehension.   It would seem, therefore, that the back-up forces of the SAF’s Seaborne operators were not sufficient in number and possibly, firepower, to be safely extricated.  This is a clear lapse in operational planning.  Napenas should have known that since Mamasapano is the lair or territory of the MILF-BIFF, his men would run the risk of a heavy encounter with nearby MILF-BIFF forces, especially so that they decided not to coordinate with the Moro rebels for fear of forewarning Marwan.  He should have readied a stronger back-up force, such as seeking the help of the Army, which is stationed not far away from the incident, who could provide an imposing presence and deter the MILF-BFF forces from further engaging the Seaborne operators.   

Since President Aquino said he directed Napenas to coordinate with the Army before and not during or at the start of the operation which they call “time on target,” Napenas clearly committed gross insubordination resulting in the unnecessary deaths of his men.  If President Aquino commanded Napenas not to coordinate with or get help from the Army, it would have been a different story.  But Napenas went on his own and decided to do things his way, which proved fatal to 44 police commandos. 

There were also stories of the SAF troopers not being able to provide coordinates to the Army that could’ve helped the latter provide artillery support.  Assuming this to be true, should this be the fault of the President?  Of course, not! Again, this is purely operational matter. The claim that it should not have been the police who carried out the mission because the police is trained only in urban and law enforcement operations is erroneous and shows lack of understanding of the nature of the operation.  First, the mission to capture Marwan is a law enforcement operation to serve a warrant for the arrest of Marwan and his cohorts.  Second, the SAF is not an ordinary police unit.  It has special operational capabilities not possessed by regular police units, which involves counter-terrorism in urban and jungle areas.  In fact, one of the mandatory trainings every SAF operator has to undergo is the Scout Ranger training course.  Scout Ranger training includes jungle survival and operations.  Finally, the Seaborne Unit – the one that actually apprehended Marwan – is a special unit of the SAF; in other words, the best of the best in the police, which is highly skilled in special urban and jungle warfare operations. 

As to the involvement of suspended Chief PNP Purisima and keeping the acting chief in the dark, suffice it to say that it is the President’s prerogatives as to who to involve in a sensitive operation.  In addition, Purisima has been handling the Marwan case for a long time and is familiar with it so his expertise on the matter came handy.  The fact that he is suspended has nothing to do with the operation, but on a different matter.

In sum, President Aquino cannot be held culpable for pressing forward with Oplan Wolverine despite the fiasco that attended it later, for the tragedy resulted not because he decided to greenlight the operation, but because of operational lapses that are clearly within the domain of the military commanders involved in the supervision and execution of the mission.  As president, Aquino was duty-bound to promptly arrest and neutralize terrorists who pose clear and present danger to the people.  That his decision could’ve jeopardized the peace process with the Moro rebels by not coordinating the mission with them may have political repercussions, but certainly not legal culpability for as president he has the discretion whether or not to proceed with the peace process.  Besides, the objective of the mission was accomplished, which was to apprehend or neutralize Marwan and his cohorts.  The 44 SAF troopers did not die in vain.

If it is shown that President Aquino prevented or halted efforts to rescue the SAF troopers when he learned of their dilemma, such as by ordering the Army to stand down, then we can undoubtedly say he should be held liable, even criminally.  But he in fact even ordered that all manpower and resources be mustered to help the besieged troopers.

Tuesday, August 22, 2017


Former President Noynoy Aquino.

On the occasion of Sen. Ninoy Aquino’s 34th death anniversary, the son, former President Noynoy Aquino – in an answer to questions regarding the spate of killings taking place under Duterte’s drug war – said that there are no extrajudicial killings (EJKs) taking place in the country because there is no judicial killing. No judicial killings, ergo no extrajudicial killings goes his reasoning.  He added that these killings were simply murders.

President Aquino’s apparent logic is that in order for these killings to be classified as EJKs, there must also be killings being authorized by the courts under a death penalty law. The logic of opposites: night and day, black and white, legal and illegal, judicial and extrajudicial. The logic is, however, over-simplistic and disregards the essential elements of what define the term extrajudicial killings.

If indeed EJKs can only exist if there is judicial killing, why then did the Supreme Court promulgate the rules on the Writ of Amparo on October 24, 2007 with the objective of addressing the problem of extrajudicial killings and enforced disappearances? Thus, in Balao, et la., v. Macapagal-Arroyo, et al, G.R. No. 186050, 186059 (December 13, 2011), the Supreme Court pronounced the following:

The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of extralegal killings and enforced disappearances. It was formulated in the exercise of this Court’s expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the 1987 Constitution, albeit limited to these two situations. (Emphasis added).
In the earlier case of In re Rodriguez v. Macapagal-Arroyo, GR Nos. 191805, 193160 (Nov. 15, 2011), the Supreme Court said that the Writ of Amparo “serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. (emphasis added)”

It is noteworthy that the death penalty was abolished by Congress under RA 9346 (An Act Prohibiting the Imposition of the Death Penalty in the Philippines) in June 2006 and has not since then been re-imposed. Therefore, this recognition by no less than the Supreme Court of the existence of extrajudicial killings despite the absence of the death penalty in our statute books clearly contradicts President Aquino’s notion that for killings to be categorized as EJKs the death penalty must be in existence that will authorize the courts to carry out judicial killings.

For added context, the Writ of Amparo is a legal remedy whereby an individual whose right to life, liberty and security is violated or threatened can ask protective orders from the courts. In a report by the United Nations, there were 903 documented cases of extrajudicial killings from January 2001 to March 2008. In response, the Supreme Court created the Melo Commission to promulgate the Amparo rules.

Going now to the definition of EJK, the Supreme Court in the Balao case defined EJK as “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” Thus, the constitutive elements of EJK are the following: (1) there was a killing; and (2) the killing was committed without due process of law. This definition is similar to the definition given under the United States Torture Victim Protection Act of 1991 which defines EJK under Section 3(a) thereof as the “deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. . . .” 

Nowhere under both definitions can be found the existence of judicial killing as an indispensable element of EJK. Clearly the existence of EJK is not premised on the existence of judicial killing.  Besides, if we follow President Aquino’s logic, it can lead to ridiculous conclusions. For example, one can argue that since there is no legal killing (because the death penalty has been abolished), there can be no illegal killing; since there is no legal prostitution in the Philippines there can be no illegal prostitution.

Notably, the phrase “without due process of law” under the second element of the definition indicates that the killing was carried out by agents of the State or State actors, such as the police or military.  In legal principles whenever due process is at issue it involves the participation of the State or the government under the concept of "State Action." In other words, the killing is carried out by law enforcers or the military without affording the victim his or her rights to due process of law.  A killing is carried out without legal authority when there is no law authorizing it (no death penalty) or the legal processes required to carry out the execution (i.e., charges are filed in court, evidence pro and con is presented, there is finding of guilt by the court) are not observed.  

Although there is a growing trend to not only limit EJKs to State actors, just the same this tendency still recognizes the participation of the State even if the killings were carried out by private individuals to categorize them as EJKs.  State participation usually takes the form of providing encouragement or support or organizing private individuals to carry out the killings.  Private armies and death squads come to mind in these cases.

By taking the position that the spate of killings taking place right now, such as the execution of Kian Lloyd Delos Santos, are not EJKs but simply murders, President Aquino has committed the mistake of unwittignly downgrading the seriousness of the problem involving these killings. 

Wednesday, August 24, 2016


Lifeless body of Kian Delos Santos being carried by police.

Pictures of people who have been raped or killed by alleged drug addicts with captions asking why there was no rally held for them by the same people who held rallies for Kian Lloyd Delos Santos, the 17-year old killed by policemen under questionable and suspicious circumstances, are being circulated on social media. The question of why anti-Duterte lawmakers, like Trillanes and Hontiveros, have not visited these victims’ wake is also being asked.

The problem with this argument is that while the case of these crime victims is the same as that of Kian – all of them were brutally killed – the similarity ends there. The former were killed or victimized by criminals who may have been drug-crazed, but Kian was killed by the police. Let us pause and absorb this well: killed by the police (with emphasis). The police are supposed to be the guardians and protectors of the people; they are supposed to enforce the rule of law; preserve peace and order; stop and prevent crimes; apprehend and neutralize criminals. The police are supposed to keep and make us feel safe in their presence, not sow terror on the citizenry by killing innocent civilians or disregarding the rule of law.

Obviously, we do not expect the same protection or safety from criminals, whether high on drugs or not. We know their object is to inflict harm and are up to no good. So, when these deranged beings go killing spree or commit heinous crimes, we as a society are shocked by the depravity of their crimes but we accept as a sad fact of life that there are such evil men ever lurking in society. And we look upon the authorities – the police – to protect us from these kinds of people.

But what do we do when the police themselves become the very evil against which we seek protection? When the police become the very evil that threaten our lives and limbs, we find ourselves in graver danger because unlike criminals the police freely roam our streets under the badge of authority. They can go about their nefarious ways, armed by the state, unhampered by anyone. Who will we call for help or protection when the very people who are supposed to provide it are the very cause of our distress?

But now that this matter has been brought to light, let us call for justice for every victim of crime, especially victims of heinous crimes. Let us demand from the government and the police to protect us against criminals; let us demand from government that those responsible be prosecuted.

If we cannot see these very clear distinctions, we are truly lost and are driven only by our political persuasions. Victims of common crimes deserve our utmost sympathy and the criminals our most vehement condemnation.  But when the police, whom we have armed and whose salaries we foot through the taxes we pay so that they can make our streets safe and protect us against bad elements of society, become the very threats to our safety and well-being, the line must be drawn and we must become vigilant and resist such evil if we are to survive.  And when there is no one to whom we can turn to for help, we have only ourselves to protect us. 

Monday, February 24, 2014

We still speak not with bated breath

When the Supreme Court decided to uphold the anti-cybercrime law, netizens were fast to decry the decision as an erosion of our fundamental right to free speech and paving the way for online martial rule.  This issue assumes much relevance at a time when we celebrate the 28th year anniversary of the EDSA People Power Revolution that toppled the Marcos dictatorship.

Those who lived through the Martial Law years know that they could only criticize Marcos and the government in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search and Seizure Order) by the state’s security forces.  This could mean being incarcerated without charges or worse, joining the ranks of the desaparecidos or those who disappeared and never to be heard from again.

The 1986 People Power revolution ended this garrison state and with it came the restoration of our cherished freedoms, particularly our freedom of speech and expression which is now enshrined in Article 3, Section 4 of the Constitution.  It prohibits Congress from making any law abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 

The advent of modern technology even expanded the exercise of this freedom by providing us the medium of the cyberspace where we can vent our frustrations with the government and its officials or cast our criticisms and disgusts.  Imagine if tweeter or facebook were already existing during the time of Marcos. The authorities would probably be spending countless hours tracking emails, tweets and status updates adverse to Marcos and his cohorts.

One only needs to read the papers, listen to the radio, watch the TV, surf the internet, browse facebook or read tweets to see that our freedom of speech is still very much intact – and we no longer have to criticize the government in bated breath.  28 years later we can still speak freely against the government and our public officials without fear of punishment.

And what about the anti-cybercrime law that punishes online libel?  Did it not remove or downgrade our free speech right with the connivance of the Supreme Court?  There is so much misinformation circulating the web about this.  Freedom of speech is not absolute.  The state can legitimately prohibit speech that is libelous, obscene, incites lawlessness, or is in the nature of fighting words (those that by their very utterance inflict injury, incite lawlessness, hatred or violence).  These are unprotected speeches that the state may validly regulate.

Libel, which is the utterance of defamatory words that destroy or injure another’s character or reputation, has always been punished even before the enactment of the anti-cybercrime law.  What the anti-cybercrime law merely did is recognize the internet as a means by which libel may be committed or as a medium where defamatory words can be published.  If a statement is libelous when made on a newspaper, radio or television or when uttered orally, it does not become less libelous when made on the internet.

The anti-cybercrime law does not punish protected speech.  By importing the definition of libel under the Revised Penal Code, the jurisprudence outlining the acts punishable when the defamatory remarks are made against a private individual and when made against a public official or figure are also imported.  Thus, speech critical of a public official or figure, even if defamatory, remains protected if made without malice and, therefore, cannot be punished as libel.

Those who say that the anti-cybercrime law will stifle free speech are clearly making false and misleading statements.  The criticism of official conduct, condemnation of malfeasance in public office or denunciation of any wrongdoing by our public officials  remain part of our protected speech and nowhere under the anti-cybercrime law, or in the Supreme Court’s decision, has this been made a punishable act.   

Monday, December 23, 2013

The Magic that is Christmas

The Star of Bethlehem .
In a recent Pew Survey in the U.S., it found that only about half of those who celebrate Christmas see it as a religious celebration while the rest see it as a cultural non-religious event.  But whatever belief one has about Christmas, the fact of the matter is that Christmas is a celebration that is based and rooted on the birth of Jesus Christ; in fact, the name with which this globally celebrated event is known is derived from the name of Christ himself. 

Every time Christmas comes, I am in awe of the far-reaching influence and legacy that this humble carpenter from Nazareth has left in this world.  His ministry is brief (a little over three years) and confined in and around the area of his birthplace (biblical accounts show that he never traveled more than 200 miles from Bethlehem), and yet Jesus left an enduring and worldwide teaching of love, peace, generosity and humility that no being who has set foot on the face of the earth has ever done.  He is truly the savior of the world!

Commercialism aside, what with all the merchandise being pedaled to us by merchants, there is no other season of the year where gift-giving is so pervasive and the air is filled with the ambience of kindness and forgiveness.  It is this time of the year where people are more tolerant and forgiving, letting go of offenses against them with the usual remark, “forget about it, it’s Christmas anyway”;  it is this time of the year where goodwill among men pervades and you see people with happy countenance everywhere.

There is no other event where even fighting men dropped their rifles and muted their canons and crossed enemy lines to engage in Christmas greetings and songs and even exchanged gifts, as was done by German and British soldiers around Christmas time during World War I. 

Whether you are a believer or not, the song is right. Christmas is “the most wonderful time of the year.”

Merry Christmas to you all and let us keep the spirit of kindness and giving alive!