Category: supreme court

marcos burial, duterte, history

There are certain things that are better left for history—not this Court—to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must move on and let this issue rest.”

that’s from the SC ponencia dismissing the petitions against the burial of marcos in the libingan ng mga bayani.  and here’s president duterte in the wake of that:

“Now the question about the dictatorship of Marcos is something which cannot be determined at this time. It has to have history. Kasi ho, ‘yung nasaktan, and it was a contention really of a political fight initially that turned sour because of the power struggle of the ruling political families in this country, and almost it deteriorated into something almost like a revolution. That part of the sins of Marcos has yet to be proven by a competent court. ‘Yung sabihin lang ‘yan nawala ‘yung pera that is altogether another different issue. As far as the right or the privilege to be buried sa Libingan ng mga Bayani, I simply followed the law. Wala tayong magawa diyan. … He was a president and he was a soldier. I am limited to that issue.”

clearly we have a president and nine supreme court justices who think we’re still in the dark ages and history can be written only after some fifty years, when the participants in a life-changing event or period are either dead or suffering from alzheimers or dementia, that is, with faulty or no memories at all, and by then bongbong or imee or one of their kids would be back in the palace and martial law would be celebrated as a golden age and the four days of EDSA ’86 would come down as a 9/11 kind of disaster for nation, as in, you know, a false flag kind of ugly thingy that unjustly interrupted marcos rule.

in fact, martial law pa lang, the martial law story, the unfolding, was already being documented by amnesty international and other human rights groups, and foreign observers were monitoring developments and taking notes, and soon after EDSA, testimonies of the tortured and the families of the salvaged were put on record, and then the books started coming out: primitivo mijares’s The Conjugal Dictatorship written in ’75, cecilio arillo’s Breakaway (1986), james fenton’s Snap Revolution (1986), raymond bonner’s Waltzing with a Dictator (1987), ninotchka rosca’s Endgame: The Fall of Marcos (1987), lewis simon’s Worth Dying For (1987), Dictatorship and Revolution: Roots of People Power edited by aurora javate de dios, petronilo bn. daroy, and lorna kalaw-tirol (1988), sterling seagrave’s The Marcos Dynasty (1988), stanley karnow’s In Our Image (1989), among many many publications into the ’90s, ricardo manapat’s Some Are Smarter Than Others (1991), mark thompson’s The Anti-Marcos Struggle (1996), paul hutchcroft’s Booty Capitalism (1998), alfred mccoy’s Closer Than Brothers (1999), to name a few, tracking not only the stories and numbers of human rights violations but also of the “rise” and fall of the economy, the ballooning of the foreign debt, the crony capitalism, the institutionalized looting, imelda’s jewels and mansions, the swiss accounts, atbpang kahindikhindik at kalunuslunos na mga kaganapan.

never has the marcos camp issued any categorical denials, issue by issue, with supporting documents — just a finger pointed at ver as the culprit in human rights violations, and another at the fabled yamashita treasure as the source of the marcos wealth.  deafening is the silence of FVR, honasan, and lacson on the stories of torture, murder, and disappearances.

president duterte insists that he is only following the law that imelda invokes, the one qualifying marcos, as former president and soldier, for burial in the libingan ng mga bayani, even as he and imelda et al. willfully ignore the exceptions laid down by the very same law.  read associate sc justice antonio carpio’s dissenting opinion:

AFPR G 161-375, which respondents rest on to justify the interment of Marcos at the LNMB, specifically provides that “personnel who were dishonorably separated / reverted/ discharged from the service” are not qualified to the interred at the LNMB. Marcos, who was forcibly ousted form the Presidency by the sovereign act of the Filipino people, falls under this disqualification.

In Marcos v. Manglapus (1989), the Court described Marcos as “a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country.” In short he was ousted by the Filipino people. Marcos was forcibly removed from the Presidency by what is now referred to as the People Power Revolution This is the strongest form of dishonorable discharge from office since it is meted out by the direct act of the sovereign people.

The fact of Marcos’ ouster is beyond judicial review. This Court has no power to review the legitimacy of the People Power Revolution as it was successfully carried out by the sovereign people who installed the revolutionary government of Corazon C. Aquino. The people have spoken by ratifying the 1987 Constitution, which was drafted under the Aquino government installed by the People Power Revolution. The Court has been steadfast in dismissing challenges to the legitimacy of the Aquino government, and has declared that its legitimacy is not a justiciable matter that can be acted upon by the Court.

As the removal of Marcos from the Presidency is no longer within the purview of judicial review, we must accept this as an incontrovertible fact which has become part of the history of the Philippines. This ouster, which was directly carried out by the sovereign act of the Filipino people, constitutes dishonorable removal from the service. Marcos was forcibly removed from the position as President and Commander-in-Chief by the Filipino people. In Estrada v. Desierto (2001), the Court reiterated the legitimacy of the removal of Marcos and the establishment of the Aquino government:

“No less than the Freedom Constitution declared that the Aquino government was installed through a direct exercise of the power of the Filipino people in defiance of the provisions of the 1973 Consyitution, as amended. It is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop.”

The removal of Marcos from the Presidency, therefore, was a direct exercise of the sovereign act of the Fiipino people that is “beyond judicial scrutiny.” It cannot be said that this removal was an “honorable” one. Truly, there is nothing more dishonorable for a President than being forcibly removed from office by the direct sovereign act of the people. (pp3-4)

the cruelest and most condemnable cut of all is the way president duterte shrugs off EDSA ’86 as simply the culmination of a political fight between two families and nothing more, when in fact ninoy was mostly helplessly in jail, and then in exile, and then dead on the tarmac, while marcos’s people were mostly committing gross human rights violations with impunity, among other morally turpid stuff.  read marcos, kleptocracy, moral turpitude.

According to Amnesty International, 3,249 were killed; 34,000 were tortured and 70,000 were imprisoned during the Marcos dictatorship. The Human Rights Victims Claims Board, meanwhile, has already received more than 75,000 applications for compensation. http://bulatlat.com/main/2016/11/10/led-political-comeback-marcoses/

and someone please tell the prez that the “something like a revolution” that successfully ousted marcos was not even endorsed by cory until the third day of EDSA, feb 24, when she finally made a brief appearance in front of the POEA, and only because the sovereign people who were in the throes of revolution gave her no choice but to reconcile and join hands with ninoy’s jailer enrile vs. marcos.

it bears repeating, too, as often as i have to, that also on day three, the dictator marcos ordered the bombing of camp crame where FVR and enrile were holed up.  fortunately for nation, the marines (who did not join the rebel forces and were poised to fire from camp aguinaldo) refused to follow marcos’s orders because hosts of unarmed civilians inside and outside the camp would have been hit, too.  please read my first chronology (1996) here and/or EDSA Uno the book (2013), both fully documented, the latter available at the UP press bookshop in diliman and f. sionil jose’s solidaridad in malate.  or i could send the president a hundred copies for family and friends, cabinet officials and other allies, FYI lang, in the spirit of FOI, just say the word.

i concede that marcos did some good, particularly when he got the U.S. to pay rent for the military bases in subic and clark in ’76, even if it was less than (just half of) the $1B kissinger first offered (that he foolishly turned down) for a period of 5 years.  but land reform?  it was selective, to put it mildly.  infrastructure?  that’s par for the course, isn’t it.  though imelda’s babies — the CCP, the heart, lung, and kidney centers — were / are winners, and so too was imee’s short-lived ECP.

i draw the line though at rice self-sufficiency which was also short-lived.

Davao City Mayor Rodrigo Duterte during his presidential campaign kick off rally in Tondo, Manila on Tuesday said the late Ferdinand E. Marcos is the best president the country ever had. He said Marcos was a good president before he became a dictator, praising his Biyaya ng Dagat and Masagana 99 programs.

“On hindsight, kung balikan ko ang panahon, noon at ngayon, kung hindi lang siya tumagal ng pagka-presidente, kung hindi lang siya naging diktador na matagal, pinaka the best na presidente na dumaan, Marcos,” he said while the crowd cheered.

thing is, both masagana 99 and biyayang dagat were credit programs that failed, according to this article on AIM’s website:

In the early 1970s, the main challenge was providing credit to the poor; there were market imperfections most experts concluded. If the private service, particularly private banks, didn’t want to provide credit to the poor, could the government do it then? Thus, the government implemented many credit programs for the poor. Even government agencies that were not financial institutions were implementing credit programs to address what was perceived as market imperfections: there was Masagana 99 (Bountiful Harvest 99) which provided loans to help farmers harvest 99 canvas of rice per hectare; there was Biyayang Dagat (Ocean’s Gift), a credit program for the fisherfolks, and Tulong sa Tao (Help for the People), loans for livelihood projects. But all these government-managed credit programs experienced very low repayment rate among the borrowers, even if government agencies were offering subsidized credit programs with minimal or no interest rates. There was also the mindset among those borrowers that what the government agencies were offering were dole-outs. Government credit programs failed. Director Almario teased, “Masagana 99 became Masamang 99, and Biyayang Dagat became Buwayang Dagat.” 

and both were programs launched during martial law, not before.  i have praised president duterte for his sense of history, declaring the little lectures priceless, but only about the moro story and american imperialism.  about marcos, martial law, and EDSA, i dare say the president needs to read up, rethink, and reboot, and so do the nine justices of the supreme court.

it’s not too late, mr. president.  it doesn’t take rocket science, or a crystal ball, to see that a marcos burial in the libingan ng mga bayani will not bring healing, rather it is certain to deepen worsen exacerbate the wounds and divisions that already afflict nation.

i would address the same appeal to the marcos family, but a mutual friend, leslie bocobo, who cheered the SC decision of nov 8, has done me better with this facebook status of nov 12.

It is my personal opinion that after the Marcos family, led by former First Lady Imelda Romualdez Marcos, VP Bongbong Marcos, Gov. Imee Marcos and Irene Marcos Araneta, acknowledge and thank the Supreme Court for finally giving its affirmative decision to allow a controversial remains a befitting final resting place in the LNMB, that the Marcoses, as a family, decide thereafter to bury FM in Ilocos Norte. There, a park-like shrine may rise so that the Filipino people may visit him without being interrupted by occasional vandals and rabid Marcos haters that I foresee may happen at the LNMB. The affirmative decision of the SC is enough. That makes it official and a sort of burying the issue (pun unintended) once and for all, thus granting Marcos the accolades and honors for a Filipino soldier. Burying him instead in Ilocos raises him to a higher level. After all, most of our past presidents are buried elsewhere. Rizal stands majestically alone in Bagumbayan. Let Marcos lie in peace in his hometown, but with a monument erected to perpetuate his memory where he too can stand alone – far away from those who hate him, but closest to all those who acknowledge him as a great leader.

Betrayed

The Supreme Court’s 9-5 decision rejecting the petitions to stop the burial of the late dictator Ferdinand Marcos in the Libingan ng Mga Bayani is a betrayal of both the Court’s noblest traditions and of the animating spirit of the Constitution. We share the view that the majority’s version of judicial restraint in the face of presidential prerogatives has allowed evil to slip through the thicket of technicalities—and triumph.

Read on…

HAIL TO THE CHIEF

Raffy Aquino

During her interpellation in yesterday’s oral arguments on the Marcos burial at the Libingan, Chief Justice Sereno suddenly mentioned the case of “Galman vs. Sandiganbayan”. Not a few lawyers, myself included, looked up in surprise. While it was one of the 18 decisions where the Supreme Court called Marcos “authoritarian,” it had no substantial connection to the legal issues being argued.

But as she read part of the decision in that case into the record, it became apparent she was addressing herself not to the petitioners but to her brethren and to the institution they collectively represented. Through Galman, she was reminding the Court that the judiciary should never again bend the knee before an overbearing and belligerent executive; she was rallying the High Tribunal to the great constitutional standard of judicial independence and warning that such independence could rest only upon the extraordinary moral courage of each of the magistrates seated around her.

Maria Lourdes Sereno was appointed Chief Justice in 2012. Yesterday, she became the Chief.

SATURNINA GALMAN, et al. vs. SANDIGANBAYAN, FIRST DIVISION, et al. G.R. No. 72670 September 12, 1986

“…There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President.

“As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, “In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation.”

“Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this Court’s judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed.

“The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only, by the Constitution and their own conscience and honour.”

The Supreme Court and the Poe disqualification case

Raul V. Fabella

The Philippine public has been treated to many erudite and well-reasoned treatises on how the Supreme Court (SC) should decide on Senator Grace Poe’s disqualification case. The legal issues are either involved and lengthy or simple and open-and-shut depending on who is making the case. Should the SC display judicial restraint, follow precedents, and hew closely to the letter of the law? Or should it display judicial activism and blaze a new judicial trail in pursuit of some perhaps new principle of jurisprudence? The SC did display a considerable capacity for judicial activism in allowing Juan Ponce Enrile to post bail though the charge against him is legally and constitutionally non-bailable. The new principle of jurisprudence, “humanitarian grounds,” which law students now have to learn has no accepted definition and one can drive an oil tanker through its portals. Be that as it may, not being a lawyer myself, I’d rather leave that to the legal eagles.

The purpose of this piece is not how the SC “should have decided” on the Poe case but what could be expected from revealed SC decision making in general.

Three theories on the decision making of the SC are salient and competing (see, e.g., Pacelle, Curry, and Marshall, 2011): (a) the legal theory — that what governs SC decision making are no more and no less than legal precedents and the Constitution; (b) the attitudinal theory — that what governs the SC decision making are the substantive prior preferences and ideologies of the justices; (c) the strategic theory — that SC decision making is governed by strategic considerations, especially in relation to outside forces, say, the other branches, especially elected branches of government. The President, the Senate, and Lower House have the power to retaliate (as, for example, through the budget allocation) in case of open display of contempt. Granting Juan Ponce Enrile the right to post bail on an unbailable charge clearly violates the legal theory. It may be understood as flowing from ingrained preferences (or biases as sometimes it is called) or from strategic considerations (or future payoffs as sometime it is called).

Pacelle, Curry, and Marshall (2011) tried to compare how these three theories perform as explanatory (proxied) variables in actual decisions of the US Supreme Court. Their logit regressions showed that none of the three theories can be rejected as correlates of SC decisions. I prefer to dwell on the strategic motives for decision making.

What appears to be a salient instance of strategic decision making by the US Supreme Court occurred during the New Deal Era. Then-US President Franklin D. Roosevelt — frustrated by repeated rebuffs by the US Supreme Court of New Deal legislations — threatened in 1937 to emasculate the SC with his Court Reorganization Plan. Known also as Roosevelt’s court packing plan, it came in the form of the Judicial Procedures Reform Bill of 1937.

It sought to grant the President the power to appoint an additional justice of the Supreme Court for every member of the Supreme Court over the age of 70 and 6 months and up to a maximum of six new associate justices.

Since it was Congress — not the Constitution — that established the composition of the SC, it can recompose it. Soon after Roosevelt won a sweeping victory in November 1936, the SC decided 5-4 upholding a Washington minimum wage law which the New Deal (in keeping with the Keynesian view of putting purchasing power in the pockets of the poor) favored. The tie was broken by, of all people, Justice Owen Richards who had previously opposed New Deal legislations.

In 1938, Justice Harlan Fiske Stone opined in the US vs Carolene Products that the SC should show deference to the elected branches in matters involving economic policy though not in matters of civil rights and civil liberties. The SC seemed to have acted to ease the political pressure and protect its identity (exemplified by the court packing plan).

Although the Judicial Procedures Reform Bill never became law, the message seemed to have been heard loud and clear in the halls of the US SC. But that is the US SC. We are in the land of “only in the Philippines.”

The question is what strategic considerations bore on the SC’s decision on the Poe disqualification case? We may never know.

But consider that candidate Rodrigo R. Duterte has said he will cure every ill in three months. Although that is mostly campaign bluster, to accomplish within his term what he promises implies realistically that he becomes a dictator, which calls for a clash with — and eventual dismantling of — the Supreme Court.

If Poe was disqualified, it is likely that Duterte is the only alternative to Vice-President Jejomar C. Binay, Sr. whose own defense being “No court has found me guilty” fools nobody, let alone the SC justices. If Poe was not disqualified, she will likely win (she was still leading the polls as of March 6 despite the case hanging over her campaign) and the Supreme Court should feel safer in her hands than in either Duterte’s who will not stand judicial obstacle or Binay’s who will need to judicially extricate himself. That is one possible strategic motive bearing on the SC decision. There may be others.

And, of course, their own beliefs about the suitability of the candidates for president should be factored in. One thing is sure: Poe being allowed to run is nowhere near the judicial activism displayed in the doctrine of “humanitarian considerations.”

Raul V. Fabella the chairman of the Institute for Development and Econometric Analysis, a professor at the UP School of Economics, and a member of the National Academy of Science and Technology.