The "Wayward Judiciary"

MANILA

SENATOR FRANCIS "Kiko" Pangilinan makes a call on the legislative and executive branches of government to "stand and oppose" the Supreme Court, which he considers a "wayward judiciary."

"No, this is not anarchy," he said on Monday, November 21. "This is democracy at work. This is checks and balances at work. It is the sworn duty of the executive and the legislative departments to act as a check on a wayward judiciary." 

Reflecting the minds of many, if not most, Filipinos, Pangilinan noted how the high court has failed to restore the public confidence of the judiciary, failed to support the government effort to strike down graft and corruption and government, and "courted insubordination and disrespect for its almost-whimsical and arbitrary exercise of judicial authority in a number of recent cases."

Many Filipinos cannot remember a time when the Supreme Court has so lost the confidence of Filipinos for any show of wisdom in its many decisions, not even during the time of the Marcos dictatorship.

Today, the Supreme Court under the leadership of CJ Renato Corona has shown nothing but symptoms of a bastion of high justice that lost its way. Its actuations tinged of politicism; its decisions display its favorable hands towards those powers that put most of its associate justices in position. The blind lady liberty has lost the blinders in her eyes, and now has brandished its powers not to serve true justice and the Filipino people but what political patronage dictates.

In a time when fight for graft and corruption becomes the byword of government, the executive and legislative branches have awakened and grew in their task of joining the fight. And the branch expected to support the fight now puts its political weight to obstruct this fight.

It seems to be that, in order for the fight against graft and corruption succeed, the present Supreme Court must be "destroyed" in the hope that, like the fabled phoenix of old, it will rise again from the ashes into a new creature that sees nothing but to serve the Filipino people, the genuine cause for justice, and free from the contaminants of corrupt values coming from the Old Politics.

The Controversial Province of Dinagat

SURIGAO DEL NORTE

Background

In 2006, less than a year before the 2007 election, President Gloria Macapagal-Arroyo signed into law Republic Act 9355, creating the new province of Dinagat Island to comprise the entire Dinagat Island. It is composed of four 4th class and three 5th class districts. It is one of the two provinces that the Arroyo administration as, according to a Newsbreak report, to her political allies in the island--the Ecleos.

The new law expressly stated that the Province "contains an approximate land area of 80,212 has or 802.12 sq. kms, R.A. No. 9355, therefore, failed to comply with the land area requirement of 2,000 sq. kilometers."

From these facts, the Supreme Court (SC) ruled in February 2010 that the creation of the Province of Dinagat Island was unconstitutional because it failed to comply with the requirements of the Local Government Code, Section 461, which states demands that a province may only be created when it has an average annual income of not less than P20 million and a population of 250,000 or a contiguous territory of 2,000 square meters.

Based on the 2000 Census of Population from the National Statistics Office available at that time, Dinagat Island had only 106,951 inhabitants. Even by 2007, it had only a population of 120,812.

Associate Justice Diosdado Peralta penned the 2010 SC decision.

Later on, the Office of the Solicitor General and Dinagat Island Governor Geraldine Ecleo Villaroman separately filed a motion for consideration, which SC denied, affirming its decision on the case with finality.

SC Flip-flapped Anew

On 29 March 2011 (Tuesday), the present SC issued a ruling reversing the 2010 SC decision. This time Associate Justice Antonio Eduardo Nachura penned the decision. According to Newsbreak, "It is unclear why the SC reopened the case."

Source

____: "Ecleos of Dinagat win in new SC flip-flop," Newsbreak 29 March 2011

House Justice Committee Voted Probable Cause on Merci Impeachment

The Justice Committee of the House of Representatives voted on 8 March 2011 (Tuesday) in favor of finding probable cause to impeach Ombudsman Merceditas Gutierrez. Thirty-nine members voted in favor, nine voted against, and one abstained.

The voting came after the Supreme Court issued a ruling today junking Merci's appeal to stop the House from proceeding with her impeachment. House Speaker Feliciano Belmonte Jr. texted Ilocos Norte Representative Rodolfo Fariñas to report the ruling while the voting was ongoing.

SC Voting

Five justices voted to let the House panel continute with its hearings. Five ruled in favor of Gutierrez. Two partially concurred with the majority. And one inhibited from the court deliberations.

Not in favor. Those who maintained that the House be allowed to continue the impeachment hearings are Senior Associate Justice Antonio Carpio, Associate Justice Conchita Carpio-Morales, Associate Justice Ma. Lourdes Sereno, Associate Justice Roberto Abad, Associate Justice Jose Catral Mendoza, Associate Justice Eduardo Nachura, and Associate Justice Martin Villarama Jr.

In favor. Those favored the Gutierrez petition are Chief Justice Renato Corona, Associate Justice Arturo Brion, Associate Justice Lucas Bersamin, Associate Justice Leonardo-De Castro, and Associate Justice Diosdado Peralta.

Partially Not in favor. Those who partiallo supported the position of the majority are Associate Justice Mariano Del Castillo and Associate Justice Jose Perez.

Inhibited. Associate Justice Presbitero Velasco Jr. did not attend the deliberation as his son, Marinduque Representative Lord Allan Velasco, belongs to the House justice committee.

UPDATE

The Senate Blue Ribbon Committee headed by Senator Teofisto Guingona III recommended in its 65-page report that Gutierrez "be held accountable for non-feasance." It also recommended to the House of Representative "to submit to the Senate the articles of impeachment against Gutierrez the soonest time possible," The Philippine Star reported on 10 March 2011. 

(Photo courtesy of Newsbreak)

Sources

Christina Mendez: "Senate committee wants special prosecutor fired," The Philippine Star 10 March 2011
Sophia Dedace: "SC junks Merci's appeal vs. House impeach bid," GMA News 8 March 2011

VP Binay Obtained Stay of Execution

Vice President Jejomar Binay succeeded in obtaining a stay of execution on three drug mules sentenced to death on 20 and 21 February (Monday and Tuesday) after a 36-hour visit to China as he made last-ditch appeals to the Chinense officials in Beijing, including its supreme court chief justice.

After the meetings, China's Supreme Court informed the Philippines that it has decided to postpone the execution, "within the scope of Chinese law," indefinitely. The stay on the execution was the first time in the legal history of China, not even for its own citizen a stay had been made before.

Sources

DJ Yap: "Binay returns after obtaining stay of Filipinos' execution," The Philippine Daily Inquirer 19 February 2011

Motives and Greed: Darkness Descends on the Judiciary

Darkness descended in the Philippine judicial system.

After the Supreme Court succumbed to making decisions rich with questionable motives ["We should question the Supreme Court's motive." Deputy Speaker Lorenzo Tañada III], certain court justices that the high court apparently sanctioned gave in to the call of salary greed.

Jess Diaz of The Philippine Star reported on 8 December 2010 that "SC spokesperson Midas Marquez was in touch with SC Deputy Administrator Raul Villanueva and Manila Regional Trial Court Judge Antonio Eugenio for the judges’ appropriate action against the supposed budget cut." This activity occurred amidst the SC public denial of their involvement in said plan to protest against alleged "cut" in judiciary budget.

However, Rep. Rolando Andaya Jr. (Camarines Sur), who chairs a subcommittee in charge of the judiciary budget, said that "contrary to claims that the appropriations for the judicial branch has been reduced, the P14.3 billion represents an increase of P1 billion over this year’s funding of P13.3 billion."

Andaya also disputed the "claims of judges that they have not been getting their salary increases since 2007 or 2008." He said they received increases taken from their allowances, part of which was added to their basic pay. “It is the amount of allowances, which should be equivalent to 100 percent of their basic salary, that they now want restored,” he said. The allowances came from internal fees that the courts collected, while salaries came from the national budget. 

Justices of the Supreme Court, despite their clamor for more funds for their allowances, are actually receiving compensation higher than President Aquino’s salary, Andaya clarified.

Now we have a court that play politics to satisfy their greed, and is willing to bend the law to justify their interests. This year marks the dark night in the Philippine judicial system.

RULING ON EXECUTIVE ORDER NUMBER 1

Senior Associate Justice J Carpio wrote:
"This Court, in striking down EO 1 creating the Truth Commission, overrules the manifest will of the Filipino people to start the difficult task of putting an end to graft and corruption in government, denies the President his basic constitutional power to determine the facts in his faithful execution of the law, and suppresses whatever truth may come out in the purely fact-finding investigation of the Truth Commission. This Court, in invoking the equal protection clause to strike down a purely fact-finding investigation, grants immunity to those who violate anti-corruption laws and other penal laws, renders meaningless the constitutional principle that public office is a public trust, and makes public officials unaccountable to the people at any time...
"History will record the ruling today of the Court’s majority as a severe case of judicial overreach that made the incumbent President a diminished Executive in an affront to a co-equal branch of government, crippled our already challenged justice system, and crushed the hopes of the long suffering Filipino people for an end to graft and corruption in government."

RULING ON MIKEY ARROYO REPRESENTATION OF SECURITY GUARDS PARTYLIST

Senator Francisco Pangilinan said:

"How on earth can we legally and morally say that a son of a former President represent a party-list organization for security guards? He does not represent security guards. Even a third grader can tell you that. He (Mikey Arroyo) represents his mother and their family and their personal and political interests, and the Supreme Court expects us to accept and respect its decision saying it isn't so and he truly represents the marginalized security guards sector?

"Herein lines the highest court of the land... But when the Supreme Court decides, doubts are immediately cast. For how long can you trust a Supreme Court with a spate of bad decisions, such as allowing a marginalized sector to be represented by a marginalized?

"How can future generations find wisdom from the whims of a few magistrates? The Supreme Court, to be above all, must rise beyond personal dictates." [Mario B. Casayuran: "High Court asked to rise beyond personal dictates," Manila Bulletin, 18 December 2010]


This article also appears in Kuro-Kuro on 22 December 2010.

Truth Under Attack?

In the Philippine laws and juriprudence, if you look for legal loopholes you are expected to find one. And if you have a Supreme Court that justifies an associate justice's verbatim lift up of statements from other authors without attribution, truth becomes a commodity that the high court may have shamelessly abused.

On 07 December 2010 (Tuesday), the Supreme Court has declared the Aquino Executive Order No. 1 as "unconstitutional," ruling that the Truth Commission "violates the equal protection clause of the Constitution as it singles out of graft and corrupt practices in the previous administration" of former president Gloria Macapagal-Arroyo.

Petitioners Louis Biraogo (businessman), Edcel Lagman (Albay), Rodolfo Albano Jr. (chairman, Energy Regulatory Commission), Simeon Datumanong (Maguindanao), and Orlando Fua Sr. (Siquijor) argued that commissions like the Feliciano Commission, Melo Commission and Zenarosa Commission, while created by executive issuance, did not have full quasi-judicial powers that were given to the Truth Commission.

Of the 10-5 vote, those who composed the majority (see story) were Chief Justice Renato Corona, Associate Justices Teresita Leonardo-de Castro, Arturo Brion, Presbitero Velasco Jr., Diosdado Peralta (2009), Lucas Bersamin (2009), Mariano del Castillo (2009), Martin Villarama Jr. (2009), Jose Perez (2009), and Jose Mendoza (2010). Mendoza authored the decision.

Associate justices who desented were Antonio Eduardo Nachura (2007), Senior Associate Justice Antonio Carpio (2001), Conchita Carpio Morales (2002), Maria Lourdes Sereno (2010), and Roberto Abad (2009). Sereno was the sole appointee of current president Benigno Simeon C. Aquino III. The rest were appointed during the administration of Arroyo. 

The present Supreme Court has been known lately for making very controversial rulings that can be perceived as a play with the letters of the law while not necessarily being faithful to its spirit. These rulings include the "midnight appointment" of Chief Justice Corona himself (which the majority of associate justices ruled not covered in the Constitutional provision against midnight appointments), and the justification (accidental deletion of attribution is so convenient to be believable as we are talking here of lawyers not ordinary clerks) of Del Castillo's proven (the accidental deletion of attribution defense is in itself an admission) lifting up of other author's opinion without attribution when writing his own opinion in the case on Japanese comfort women ["The Supreme Court's Plagiarism Scandal," Newsbreak]. And this present ruling against the creation of the Philippine Truth Commission may as well be one of these highly head-shaking decisions.

Premeditation to Oppose EO 1

In her dissenting opinion, associate justice Maria Lourdes Sereño intimated that there was already an intention to subvert EO1 in the part of the majority SC justices. According to Frank Malilong ("Supreme Court's red herring," SunStar Cebu, 9 Dec 2010), "she described the majority's suggestion that 'there was a way to tweek EO 1' as a 'red herring.'" Red herring, according to wikipedia, is "a rhetorical tactic of diverting attention away from an item of significance," in this case, the search for truth of graft and corruption committed in the previous administration.

And the majority simply waited for any hint that a priority be given on seeking the truth in relation to the Arroyo administration. The reality, she said, is that “there is no way that it can be done without loss of dignity to the incumbent presidency” since the Court is in fact ready to strike down the EO “the moment the prioritization hints on focusing on the Arroyo administration.”

This information confirms that the majority of the SC justices already held a bias towards protecting the Arroyo administration and against EO1.

The Issue of Violating Equal Protection Right

Associate justice Sereño disputes the ruling that EO 1 violated the equal protection right based simply on an earlier but worse precedence in Arroyo's Administrative Order No. 78. AO 78, according to Sereño even singled out a group of people for investigation. She wrote, AO 78 “zeroed in on the investigation of ‘the rebellion of misguided military officers last July (2003)’ in order ‘to investigate the roots of the rebellion and the provocations that inspired it,’ and concludes that ‘this rebellion is deplorable.’”

This gives us an idea on how SC twisted law in order to protect the Arroyo administration using a very twisted logic, the same kind of logic used in exempting the appointment of Chief Justice Coloma from the Constitutional prohibition against midnight appointments as well as its subscription to the very convenient "accidentally deleted attribution" defense against the plagiarization offense that associate justice Del Castillo committed in his "Japanese comfort women" ruling, in order to protect the associate justice.

I can only say that the current Supreme Court has lost its moral ascendency to discharge blind justice on issues relating to the Arroyo administration because of these immoral maneuvers of the majority of justices.

Dissenting Opinions

ANTONIO CARPIO, Senior Associate Justice: "The majority opinion’s reasoning is specious, illogical, impractical, impossible to comply, and contrary to the Constitution and well-settled jurisprudence. To require that “earlier past administrations” must also be included in the investigation of the Truth Commission, with the Truth Commission expressly empowered “to investigate all past administrations,” before there can be a valid investigation of the Arroyo administration under the equal protection clause, is to prevent absolutely the investigation of the Arroyo administration under any circumstance...
"Here, petitioners do not claim to be adversely affected by the alleged selective prosecution under EO 1. Even in the absence of such a claim by the proper party, the majority opinion strikes down EO 1 as discriminatory and thus violative of the equal protection clause. This is a gratuitous act to those who are not before this Court, a discriminatory exception to the rule that only those “adversely affected” by an alleged selective prosecution can invoke the equal protection clause. Ironically, such discriminatory exception is a violation of the equal protection clause. In short, the ruling of the majority is in itself a violation of the equal protection clause, the very constitutional guarantee that it seeks to enforce.
"The majority opinion’s requirement that “earlier past administrations” in the last 111 years should be included in the investigation of the Truth Commission to comply with the equal protection clause is a recipe for all criminals to escape prosecution. This requirement is like saying that before a person can be charged with estafa, the prosecution must also charge all persons who in the past may have committed estafa in the country. Since it is impossible for the prosecution to charge all those who in the past may have committed estafa in the country, then it becomes impossible to prosecute anyone for estafa...
"A person investigated or prosecuted for a possible crime cannot raise the defense that he is being singled out because others who may have committed the same crime are not being investigated or prosecuted. Such person cannot even raise the defense that after several decades he is the first and only one being investigated or prosecuted for a specific crime." (Source)

CONCHITA CARPIO-MORALES, Associate Justice: (to be added)

MARIA LOURDES SEREÑO, Associate Justice: (to be added)

ROBERTO ABAD, Associate Justice: (to be added)

What Ordinary People Said [Source 1]

ROBERT REYES, activist priest: “By declaring the truth commission unconstitutional, the Supreme Court has declared (Arroyo) untouchable.It’s like saying that you can’t do anything with Arroyo as long as majority of the SC is with her.”

RODOLFO “Jun” LOZADA, whistle blower [$329-million NBN-ZTE deal]: “GMA (Arroyo) was clever enough and until now she’s still clever to make sure that her back will be protected by leaving so many cohorts and allies behind to the extent of creating laws that guarantee them tenure."

AMADO VALDEZ, dean of law [University of the East]: “How can there be a violation of equal protection when she is in a class by herself? How could she claim she will be isolated? I don’t think the Truth Commission can be invalidated on that ground.”

RENATO REYES, secretary-general [Bayan]: “The Truth Commission decision was preceded by other decisions involving Arroyo’s midnight appointments and a status quo order on the impeachment case vs. the Ombudsman. If this trend continues, and extends to the Ombudsman impeachment case also pending before the SC, there will be fewer avenues to make Arroyo accountable."

What Senators Said

FRANCIS PANGILINAN: “The Supreme Court might have unwittingly sent a message that abuses and corruption under the Arroyo (administration) should not be investigated. Its effect on the public mind is that it absolves Mrs. Arroyo from the scandals and her involvement in anomalies and abuses in government. The last time I checked, GMA was no longer President and the practice of suppressing the truth as state policy ended with her. The Supreme Court ruling preventing the government from investigating the former president makes me stop to pause and think."

JUAN PONCE ENRILE, Senate President: "The President can’t create an office like that, in my opinion, and then appropriate money for it. I also entertained some doubts about the validity of the creation of the Truth Commission.” (read report)

FRANKLIN DRILON: “Clearly, this decision is one of the many legal obstacles laid down by the Arroyo administration to prevent the former administration from being made to answer to the Filipino people for its abuses and and excesses. Its putting in place nearly 1,000 midnight appointees to key government positions is another example of that attempt to suppress public accountability.” (Source) "Gloria Arroyo on April 16, 2001 signed EO 12 creating the Philippine Anti-Graft Commission (PAGC)." (Source)

What Congressmen Said

LORENZO TAÑADA III, depute speaker: “Frankly, this is disastrous. We should question the Supreme Court’s motives. What’s the difference between this and the Melo Commission, which was also created by executive order?”

WINSTON CASTELO (Quezon City): “Unfortunately, the SC misread the intention (of the Aquino administration) and found more legal technicalities than ferreting out the truth.” (Source)

TEODORO CASIÑO, Bayan Muna party-list: “The Arroyo court is playing its role to the hilt in protecting the ex-President.”

NIEL TUPAS JR (Iloilo), Chairperson (Committee on Justice): "The Truth Commission was basically set up for the purpose of investigating because the body tasked by the Constitution to investigate and prosecute graft and corruption seems to have lost credibility... I don't think the Ombudsman is the right person to handle those cases." (Source)