DERAILING THE CHECKS AND BALANCES

       

Early on in his term, President Bongbong Marcos is already antagonizing a co-equal branch of government, the legislature, by ordering his Executive Secretary Vic Dominguez to snub the invitation to attend a Senate inquiry on the sugar importation mess.

This does not bode well for a vibrant democratic system. Under our scheme of government, each of the three branches (executive, legislative and judicial) has the additional and important function of checking and balancing the exercise of powers by the other in what is known as “checks and balances.”   

The Constitution enumerates the several ways each branch exercises this function. For example, the president as head of the executive branch has the power to veto any law passed by Congress; the legislative branch, through the Senate, must ratify a treaty negotiated and signed by the president with another country before it becomes binding; the judicial branch, particularly the Supreme Court, has the power to invalidate the actions of both the executive and legislative branches by declaring them unlawful.

The conduct of legislative inquiries is one of the powers of Congress to aid it in crafting legislations. Legislative inquiries help Congress pass new laws or amend existing ones to address a particular problem, such as the current sugar shortage. To be sure, this function has been abused several times by scheming legislators to drag before them and publicly flail public officials they deride or to grandstand on a particular issue without the least intention of crafting a law from the exercise.

Given the importance of the sugar shortage crisis, however, the executive must cooperate with Congress in getting into the bottom of the problem so that a solution can be found. Bongbong’s directive to Secretary Dominguez not to attend the Senate inquiry is an alarming indication of his disrespect to a co-equal branch of government, which forebodes an authoritarian tendency on his part.

We all know what happened under Ferdinand Marcos, Sr.’s rule when he started acting as the executive and legislative at the same time and controlled the judiciary. Hopefully Marcos, Jr. is not trying to follow this playbook in snubbing the Senate.

THE SUPREME COURT MUST UPHOLD THE RULE OF LAW

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.

IS NOYNOY LIABLE FOR THE MAMASAPANO MASSACRE?

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NOYNOY IS WRONG TO SAY THERE ARE NO EJKs

Former President Noynoy Aquino.

On the occasion of Sen. Ninoy Aquino’s 34^th 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. 

FALSE EQUIVALENCY

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. 

We still speak not with bated breath

Source: dailyopinioninternational.com

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 28^th 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.