I have blogged a number of times here in FV criticizing the decision of the Supreme Court on the MoA-AD case arguing in the main that the development of the law on separation of powers could be heading further in the wrong direction as a consequence of the decision. Among others, I raised the following concerns:
1) The SC has breached its duty to exercise judicial self-restraint on a highly delicate matter that involves the exercise of executive prerogative. I hold that the President’s prerogative as commander in chief to negotiate for peace in Mindanao or to continue waging war is beyond the purview of judicial review. By failing or refusing to exercise self-restraint, the SC has once again consciously enhanced its judicial powers (as in those cases affecting the oversight power of Congress) at the expense of the powers of the Executive, a co-equal department in our tripartite system of government.
My argument on this point runs like this: If we grant that the SC can prevent a peace negotiation via a temporary or permanent injunction to forestall a perceived dismemberment of the national territory, doesn’t it follow that, in case of executive dillydallying, the Court can also issue an order or enjoin to the commander in chief to recover a lost ground or territory, inflict punitive action or conduct an all-out war to win peace?
2) The main contention in the SC decision is wrapped in the majority’s interpretation of the MoA-AD to the effect that the government peace panel “virtually guaranteed” in the agreement that the present constitutional setup will be amended to validate provisions in the MoA-AD not heretofore in conformity with the Constitution.
My argument on this second point is: The MoA-AD still contemplates of a “comprehensive peace pact” yet to be forged and to be adopted in accordance with the processes (the amending process in particular) under the existing legal framework, i.e., the Constitution, essentially. The MoA-AD is thus akin to the joint Senate resolution proposing the adoption of federalism, obviously a political arrangement “brazenly” not in accord with the present unitary system.
3) The case was mooted when the President unilaterally has gotten rid of the MoA-AD.
My argument on this point is: What would have happened had the SC ruled that the MoA-AD is constitutional? Won’t such a decision be anything but academic since the MoA-AD is already scrapped and the President as commander in chief might have in fact already decided to finish the fight until the rebellious forces are totally suppressed?
The foregoing concerns notwithstanding, should I still support the Complaint-in-Intervention filed by our colleague mlq3 et al in the pending impeachment proceeding against President Arroyo?
I certainly will if there is a “probable cause” as to the allegations contained in the Complaint that the President “chose to renegotiate with the MILF with the main objective of remedying her plummeting trust, approval, and popularity ratings” or only for “purely partisan, political, objectives such an agreement could help achieve, namely, amending the Constitution in furtherance of her political needs and those of her allies” or otherwise “undertaken with purely tactical political goals in mind.”
Popularity: 1% [?]
Abe,
And…? Is there a probable cause as to allegations contained in the Complaint that the President ….?
I would very much like to know what you think.
Abe,
Do you believe that peace can be achieved in Mindanao without changing the Philippine Constitution?
abe,
i have my some posts where I said that the SC should not be allowed untramelled incursions on unfamiliar domain not heretofore ventured by the court so it can save face and avoid a constitutional crisis.
and why would a branch of government which is not even accountable to the people, unlike the members of the two other branches who have to seek mandate from the people every 4 or 6 years, would impose its pontifical position on the two other branches of government?
why would a court like to be seen a “knight in shining armor” and make the executive look like “shit” when the members of the SC itself are another “horseshit?
these magistrates should read the dilemma of Justice Marshall in the case of Marury v. Madison case.
had GMA signed the MOA-AD and started implementing it and the Muslim separatists occupy their ancestral lands, how can the SC implement its decision that the MOA-AD is unconstitional and therefore the Muslims should be repelled from these ancestral lands?
to GMA’s credit, she had shown sensitivity towards public opinion and had decided not to sign the MOA-AD.
the court can simply say that the issue is mooted rather than bring itself in a collision path with the executive.
The GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) contained three items to be agreed upon: Security-Ceasefire Aspect, Humanitarian Rehabilitation Aspect, and Ancestral Domain Aspect. The ceasefire and rehab aspects were agreed upon in 2001 and 2002 respectively, but the Ancestral Domain aspect has only come up now. This is the Road Map to peace with the MILF that the Arroyo admin is following.
It is in this context that the MOA-AD should be viewed. Sooner or later, the GRP and MILF will address the 3rd strand of the Tripoli Agreement. When they do, all the issues attendant upon this present MOA-AD will naturally arise again.
Now in considering the Constitutional merits of the MOA-AD, the Court unfortunately found NONE, therefore it is rightfully concerned that when the GRP and MILF next get to that point again, they will need some nice reading material to figure out how to avoid yet another embarrassing TRO against dismembering the Republic or fomenting civil war.
There is no collision path between the Court and the Executive, but between the Executive and the Constitution. The President is still in charge navigating along the road map and setting the course, but the Court has just painted some lines on the map beyond which she really ought not to go because it’s not allowed by the Constitution.
But be aware, JCC, I fear that there are those who believe the Philippine Constitution must be sacrificed for the sake of peace. We are to give in to demands by those holding a gun to all our heads and are holding us hostage to a history we can no longer alter the course or consequences of.
AdB,
Probable cause exits when the complaint clearly states a cause of action supported by certain evidence on the basis of which the prosecution (the Lower House in the case of impeachment) will be able to form a judgment that the indictment of an impeachable offense it intends to pursue is winnable.
DJB,
I believe peace in Mindanao is achievable in our lifetime, with or without changing the Constitution, if the Christian majority starts treating the Moros as their Christian brothers and the Moros in turn embracing the Christians as their Muslim brothers.
jcc,
I credit GMA for her Marcosian instincts.
djb,
you parsed my position wrong. i myself is against the MOA-AD as far as it will dismember the Philippine Archipelago to address the turbulent Muslim issue.
I did not fault the SC for adhering to the principles of the constitution. it can adhere to it without putting itself in the collision course of the executive. luckily, it was the executive that buckle down not from the SC’s pontification but from the sheer weight of public opinion when the executive decided not to pursue the MOA-AD deal.
public opinion has already achieved what the court seeks to achieve, but it seems that the court would like to put itself in the political affray and makes itself appear as a branch of the government that is above the other two branches.
again, you have not addressed the issue that why would we look at the SCORP with more reverence than the other two branches when the former is not even accountable to the people?
“had GMA signed the MOA-AD and started implementing it and the Muslim separatists occupy their ancestral lands, how can the SC implement its decision that the MOA-AD is unconstitional and therefore the Muslims should be repelled from these ancestral lands?
the above quote from my previous thread had something to do with the dilemma of Justice Marshall in the case of Marbury v. Madison.
Part of that dilemma: What if despite our decision the Executive would not follow our decision? Are we not creating a constitutional crisis in this regard? Will this not cause embarassment on the part of the Court?
So in the course of time the US Courts have evolved different abstention doctrines whenever it is confronted with the prospect of being in the warpath of the executive or the legislative branch of the government. the traditional doctines are : political question/justiciability, ripreness, mootness, and standing.
later, as an adjunct of political question doctrine, the court has evolved the doctrines of “judicial manageability” or “judicial supervision”. the latter two doctrines look at the pragmatic aspect of the court not being equipped with administrative tools by which to monitor or make its decision carried out in its full splendor, and therefore would not venture on those areas where its pronouncement would become a useless piece of paper.
thus my question, had GMA go ahead with the MOA-AD and the muslims separatists had started exercising jurisdiction over these ancestral domains, how will the court implement its decision describing the agreement unconstitutional and therefore it should order the Army to repel the Muslim incursions?
jcc,
our “reverence” for the Supreme Court has nothing to do with it. Indeed if you are at all familiar with my writing you will find little of that. On the issues of mootness, ripeness, jurisdiction, etc. the Court was not unaware of the standard incantations when it offered specific reasons why those did not apply. I was pleasantly surprised at the result and the reasoning behind not mooting the issue. It simply makes sense though: the peace process is ongoing (under full control of the Executive) and “ancestral domain” is an unfinished strand. It must be and will be taken up again, whoever the President is! But what we want the people to learn is that in fully and freely pursuing the full range of an official’s discretion, there is NEVER license to violate the Constitution.
ABE,
Hahaha. You fudged your answer. “Peace can be had With or without the Constitution”
But I can’t let you go that easily. I want a categorical answer or are you afraid to admit what you really think? Here it is again, no cheating this time okay):
Do you believe that it is necessary and sufficient to change the Philippine Constitution in order to achieve peace in Mindanao? (Explain please.)
Congress represents the most powerful check and balance granted to the Legislative Branch. Impeachment is very difficult to implement especially against the presidency. 2/3 must approve it or maybe 2/3 do not find Noli as a better replacement for the presidency. It slows down policymaking. Instead of focusing on real issues such as employment and livelihood, the time spent for the president to deal with impeachment will not help our country as a whole.
djb,
you still cannot grasp the nuances of judicial review.
i suggest you read Marbury v. Madison and look at the concept of tripartie government where one branch is supreme within its own sphere.
does not the court violate the concept when it tries to pontificate in the political sphere and declares unconstitutional a non-binding MOA-AD because it has already bee abandoned?
when this strand is revived, then and only then that the court is justified to rule on it but not when it is not.
JCC,
Your appeal to nuances is unavailing. No one is contesting the generalities of Separation of Powers. But let me get something straight. You do admit, do you not, that the substantive conclusions reached by the Court about the Constitutionality and legality of the MOA-AD, are correct? You are only questioning the wisdom of their ruling on the Constitutional merits of the MOA-AD–that they should have ruled the issue moot and academic?
Or do you believe the Supreme Court is wrong on the merits as well as unwise in their decision to rule on those merits?
DJB,
My answer fudged? I don’t think so, Dean. You can check one of my explanations here.
i don’t particularly respect corono nor do i agree with the francisco decision but a good start as any to see where we’ve gone since marbury v. madison and the innovation in our constitution that puts us on a different evolutionary path from the americans is here:
http://www.supremecourt.gov.ph/jurisprudence/2003/nov2003/160261_corona.htm
JURISDICTION AND JUSTICIABILITY VS.
THE POLITICAL QUESTION DOCTRINE
The Court is vested power by the Constitution to rule on the constitutionality or legality of an act, even of a co-equal branch.
Article VIII, Section 4(2) of the Constitution states:
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
The Constitution is the basic and paramount law to which all laws, rules and regulations must conform and to which all persons, including the highest officials of the land, must defer. Any act conflicting with the Constitution must be stricken down as all must bow to the mandate of this law. Expediency is not allowed to sap its strength nor greed for power permitted to debase its rectitude. Right or wrong, the Constitution must be upheld as long as it has not been changed by the sovereign people lest its disregard result in the usurpation of the majesty of law by the pretenders to illegitimate power.[7]
While it is the judiciary which sees to it that the constitutional distribution of powers among the three departments of the government is respected and observed, by no means does this mean that it is superior to the other departments. The correct view is that, when the Court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it is upholding is not its own supremacy but the supremacy of the Constitution.[8]
The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act, whether of the highest official or the lowest functionary, is a cornerstone of our democratic system. This is the rule of law. The three departments of government, each discharging the specific functions with which it has been entrusted, have no choice but to comply completely with it. Whatever limitations are imposed must be observed to the letter. Congress, whether the enactment of statutes or its internal rules of procedure, is not exempt from the restrictions on its authority. And the Court should be ready – not to overpower or subdue – but simply to remind the legislative or even the executive branch about what it can or cannot do under the Constitution. The power of judicial review is a logical corollary of the supremacy of the Constitution. It overrides any government measure that fails to live up to its mandate. Thereby there is a recognition of its being the supreme law.[9]
Article VIII, Section 1 of the Constitution provides:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
Both the 1935 and the 1973 Constitutions did not have a similar provision with this unique character and magnitude of application. This expanded provision was introduced by Chief Justice Roberto C. Concepcion in the 1986 Constitutional Commission to preclude the Court from using the political question doctrine as a means to avoid having to make decisions simply because they may be too controversial, displeasing to the President or Congress, or inordinately unpopular. The framers of the 1987 Constitution believed that the unrestricted use of the political question doctrine allowed the Court during the Marcos years to conveniently steer clear of issues involving conflicts of governmental power or even cases where it could have been forced to examine and strike down the exercise of authoritarian control.
Accordingly, with the needed amendment, the Court is now enjoined by its mandate from refusing to invalidate an unauthorized assumption of power by invoking the political question doctrine. Judicial inquiry today covers matters which the Court, under previous Constitutions, would have normally left to the political departments to decide. In the case of Bondoc vs. Pineda,[10] the Court stressed:
But where the political departments exceed the parameters of their authority, then the Judiciary cannot simply bury its head ostrich-like in the sands of political question doctrine.
In fact, even political questions do not prohibit the exercise of the power of judicial review for we have already ruled that our responsibility to interpret the Constitution takes primacy over the political question doctrine. In this connection, we held in Coseteng vs. Mitra[11] that:
Even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1, of the Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government.
The Court is never concerned with policy matters which, without doubt, are within the exclusive province of the political arms of government. The Court settles no policy issues and declares only what the law is and not what the law ought to be. Under our system of government, policy belongs to the domain of the political branches of government and of the people themselves as the repository of all state power.[12]
In the landmark case of Marbury vs. Madison,[13] penned by Chief Justice John Marshall, the U.S. Supreme Court explained the concept of judicial power and justiciable issues:
So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
And on the importance of our duty to interpret the Constitution, Marbury was emphatic:
Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the court must close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.[14]
The Court has the obligation to decide on the issues before us to preserve the hierarchy of laws and to maintain the supremacy of the rule of the Constitution over the rule of men.
In Calderon vs. Carale,[15] we held:
If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental principles of our constitutional system of government, particularly those governing the separation of powers.
Under the new definition of judicial power embodied in Article VIII, Section 1, courts of justice have not only the authority but also the duty to “settle actual controversies involving rights which are legally demandable and enforceable” and “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”
The Court can therefore, in certain situations provided in the Constitution itself, inquire into the acts of Congress and the President, though with great hesitation and prudence owing to mutual respect and comity. Among these situations, in so far as the pending petitions are concerned, are (1) issues involving constitutionality and (2) grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of any branch of the government. These are the strongest reasons for the Court to exercise its jurisdiction over the pending cases before us.
jcc, let me point to abe’s own thoughts on francisco, too:
http://redsherring.blogspot.com/2005/08/gang-hails-chief.html
ABE,
You sent me to a post at Red Herring where my accusation is confirmed: you refuse to say one way or another whether you think a change in the Philippine Constitution is necessary and sufficient to bring peace to Mindanao.
But you do say this at the end of that post:
I generally sympathize with these sentiments. But I can definitely say that changes to the Philippine Constitution as found in the MOA-AD are neither necessary nor sufficient to achieve our shared noble aims as you have stated them so eloquently.
The Constitution already upholds the principles on which you and I are apparently in complete agreement.
EVEN IF the MOA-AD had been signed, we would be no closer to these goals, indeed I believe they would be impossible under the state of apartheid that would then endure…
an interesting question i’d like to ask the lawyerly-inclined, since there are now parameters established by the supreme court.
if a president decided there were only two real solutions to the mindanao problem:
1. outright partition and independence for muslim mindanao or
2. commonwealth status for muslim mindanao reserving only foreign affairs, defense, and currency to the republic
how could a president go about proposing and achieving it?
MLQ3,
The discussion really goes beyond the issue of the MOA-AD’s constitutionality and certainly way beyond whether the Supreme Court exercised its power of judicial review properly with respect to the question of mootness. “Ancestral Domain” is unfinished business left over from the 2001 Tripoli Agreement between the MILF and GRP. How can its formalization in the form of a MOA or any other instrument be moot? The TRO prevented an act by the Executive, which act, had it been consummated, would’ve constituted an undeniably culpable violation of the Constitution. There was grave abuse of discretion.
The threshold question that is begged by the Intervenors then is this, in my opinion. Was this attempted violation of the Constitution an impeachable act, even if the Supreme Court’s action prevented its commission and even caused the Executive to “back off” with alacrity and a bad conscience? Are the consequencces of a policy fraught with ultra vires acts and plans grave enough to warrant removal from office?
yes, thats what were asking, djb.
DJB, MLQ3,
You have been citing authorities penned by legal midgets and dwarfs masquerading as legal luminaries.
Here is a political and legal giant when it comes to constitutional law, Thomas Jefferson.
Read and savor his genius:
The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. This will lay all things at their feet . . . We shall see if they are bold enough to take the daring stride their five lawyers have lately taken. If they do, then . . . I will say, that “against this every man should raise his voice,” and more, should uplift his arm . . .
Having found, from experience that impeachment is an impracticable thing, a mere scarecrow, they consider themselves secure for life; they sculk from responsibility to public opinion . . . An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning . . .
A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.
A usurping judiciary will become a despotism
—– To Jarvis, 1820
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is “boni judicis est ainpliare jurisdictionem,” and their power the more dangerous as they are in once for life . . . The constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.
If the Federal judiciary is not checked, it will destroy democracy.
—– To C. Hammond, 1821
It has long, however, been my opinion, and I have never shrunk from its expression (although I do not choose to put it into a newspaper, nor, like a Priam in armor, offer myself its champion), that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government or another, and will become as venal and oppressive as the government from which we separated. It will be as in Europe, where every man must be either pike or gudgeon, hammer or anvil. Our functionaries and theirs are wares from the same workshop; made of the same materials, and by the same hand. If the States look with apathy on this silent descent of their government into the gulf which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron, and the blasphemers of man, as incapable of self-government, become his true historians.
Sinister procedure of the Supreme Court
—– To Pleasants, 1821
Another most condemnable practice of the Supreme Court to be corrected is that of cooking up a decision in caucus and delivering it by one of their members as the opinion of the court, without the possibility of our knowing how many, who, and for what reasons each member concurred. This completely defeats the possibility of impeachment by smothering evidence. A regard for character in each being now the only hold we can have of them, we should hold fast to it. They would, were they to give their opinions seriatim and publicly, endeavor to justify themselves to the world by explaining the reasons which led to their opinion.
DJB, MLQ3, THIS IS MY IS MY FAVORITE:
To curb Federal judges, they should be appointed every six years
—– To Pleasants, 1821
[For the] difficult task in curbing the Judiciary in their enterprises on the Constitution . . . the best [remedy] I can devise would be to give future commissions to judges for six years [the Senatorial term] with a re-appointmentability by the president with the approbation of both houses. If this would not be independence enough, I know not what would be . . .
The Judiciary perversions of the Constitution will forever be protected under the pretext of errors of judgment, which by principle are exempt from punishment. Impeachment therefore is a bugbear which they fear not at all. But they would be under some awe of the canvas of their conduct which would be open to both houses regularly every sixth year. It is a misnomer to call a government republican, in which a branch of the supreme power is independent of the nation.
DJB, mlq3,
Like what’s transpiring in the USA today (the American people have chosen a son of a Kenyan Muslim to lead them in a very trying time), what I think we really need most in the Philippines is a collective change of attitude rather than a change of formal structure (which is the message too of utol kita, mahal kita).
But should we decide to tinker with the form of our government to address various concerns growing out of a highly centralized system, such concerns as the long-standing Mindanao conflict (or specifically the “ancestral domain” strand of the Tripoli Agreement of 2001), genuine local autonomy, a vastly bureaucratized educational organization, etc, I actually prefer the federalism approach to the BJE model.
The “associative relationship” in the BJE proposal, while recognizing a “central government,” will probably ultimately lead to independence for Bangsamoro. Some diehards are even unabashed in their pronouncements they are Moros, not Filipinos (as if they would rather adulate Omar Sharif than FPJ or cheer for Oscar de la Hoya on December 6) forgetting that certain aspects of our way of life may be different but we are one nation.)
Yes, I can hear that again – “There’s not a blue America or a red America, there is the United States of America.”
If we are to live up to our penchant for self-deprecation, then so be it. Let’s be copycats: There’s no Ilokandia, Bikolandia, Bangsamoro, etc. just the United States of the Philippines. Diverse, multi-ethnic, autonomous but one.
mlq3, jcc
On the potential for judicial despotism in the Philippines, let me repost the ff:
. . . Section 1, Article VIII is the realization of a singular mission of Mr. Chief Justice Roberto Concepcion (“Mr. Rule of Law” himself). The former Chief Justice’s hope, grown out of his unfortunate experience as chief justice, was to obviate another Javellana scenario wherein his brethren in robes conveniently have chosen to evade, on “political question” pretense, their judicial “duty” to rule on transcendental constitutional matters such as the adoption of a constitution.
Today, instead of a prescription for judicial duty, Section1, Article VIII is emerging as an alarming source of seemingly unlimited judicial powers, with the Supreme Court effectively transforming itself as a branch of government more equal among co-equals.
The Court had brandished a couple of times before this self-branded expanded certiorari authority, but in the most recent Neri v. Senate Committee decision, it brought the monster out of the cave to cripple a coordinate branch of the government, even encroaching upon textually committed constitutional functions of the Senate or three of its committees.
_________
It seems the monster has raised havoc again in the MoA-AD case.
Abe,
Judicial despotism, you say? If Puno suddenly swears in Noli de Castro as President before a hooting throng of nuns and the CBCP bishops –while all are watched over by Gen. Alexander Yano–now that would be a people power revolution. Only later, if and when the Supreme Court blesses it all as “constitutional throughout” would it be “judicial despotism”–of the constructive type, hehe.
I don’t believe that a change in the form of government such as to a federal republic, is going to produce that “collective change of attitude” you speak of and which I would also encourage.
The BJE idea actually creates two states by dismembering one state and calling the pair a Federation in an “associative relationship”. More “associated States” are to be carved out of the original unitary State.
I don’t think federalism means the States can choose to be mini-theocracies, for example, and certainly not BJE-like fundamentalist Islamic states, or Christian or Wiccan or Opus Dei. So though switching to a federal system might provide some temporary relief, eventually the “hardliners” as you call them will run up against the quintessences of democracy that are confronting them today. They will chafe at freedom of religion as they see other nearby Islamic States in the Southeast Asian region and envy their theocracies which have laws against apostasy (but only from Islam!). But all these Islamic fundamentalist arrangements would most likely still be strenuously incompatible even with a new Federal Constitution of the Philippines.
Even federalism would not allow state level theocracy or state level BJE arrangements.
jcc, but as a lawyer you know full well you haven’t answered my question.
djb, mini-theocracies is what federalism in malaysia permits, and in orientation our political class pines for the cozy comforts of the mahathir-era UNMO.
djb, mlq3,
i have all answered your questions if they are relevant, but i do not answer irrelevant question.
stick to the issue.
1. are you in favor of judicial adventurism or not?
2. do you consider the judiciary more equal than its co-equal branch of the government as posited by Abe?
3. Do you agree with the position of T. Jefferson that the Court must be accountable to the sovereign people and that the machinery of impeachment is a mere scarecrow?
4. Do you accept the position of T. Jefferson that the Court is capable of perverting the Constitution?
If your answers to 1 and 2 are Yes and NO on 3 and 4., then we can end all these discussion. Your position is not my concern, I respect your position and I hope that you respect mine. :)
“Judicial despotism, you say? If Puno suddenly swears in Noli de Castro as President before a hooting throng of nuns and the CBCP bishops –while all are watched over by Gen. Alexander Yano–now that would be a people power revolution. Only later, if and when the Supreme Court blesses it all as “constitutional throughout” would it be “judicial despotism”–of the constructive type, hehe”. DJB..
Typically clueless of the higher ideals of the kilometic threads above.
Swearing in a pretender to the Presidency before a hooting crowd of nuns and bishops would still be judicial putschim, despotsim and anarchy. That the newly-installed President were supported by the nuns and bishops does not make the swearing in “judicial despotism of the constructive type”.
The duty to swear-in a President elect by a Chief Justice is supposed to be purely ceremonial in nature, but when the swearing was made under the conditions of EDSA 2, the swearing in had assumed a political color, and the Chief Justice has prostituted the dignity of the Court, it it has one, and the Chief according to T. Jefferson like any other “has the same passion for party, power and privilege of their corps”.
Thus, Jefferson would do away with the “impeachment machinery” because it is a bugbear that they fear not. (how prophetic) and had proposed instead that Justices be appointed for six years so their performance can be read like canvass and their penchant for errors and adventures be curtailed and minized.
JCC,
Come back AFTER you have read the decision please. (You can bring Tom J. back, even).
jacc, that’s weasly lawyering. i asked you a question. typical moving target argumentation beloved of administration-oriented types.
MLQ3, DJB,
Why don’t you just leave lawyering to lawyers? When laymen try to read into the laws, decisions and jurisprudence their laymen concept of the those materials confusion may arise and the fine nuances of the law could really be that frustrating experience. :)
MLQ3,
Central to Cotabato v. GRP is the fact that the state within a state proposed under the MOA-AD would’ve been for all intents and purposes, a mini theocracy, and that is why the “associative relationship” discerned by the court was doubly ultra vires–not only procedurally since it said the President was usurping constituent powers, but from the point of view of the Bill of Rights itself.
Whatever the intentions are now, it was an “attempted murder” of the constitution that was prevented from being accomplished murder, by the Supreme Court’s TRO itself.
In other climes, sepuku would the honorable way for GMA to go.
Lighten up a bite, dudes.
Your legal and para-legal pissing contest is impressive but a wee bit tiring.
Can we KISS it and just tell the Filipino on the street in the grip of poverty and oppression: should GMA BE IMPEACHED or will they just have to resort to extra-legal remedies to end their collective misery as a people?
Di ba kayo napapagod?
Ginoong Ding, yan ang pinakamagandang tanong “Di ba kayo napapagod?
sa katatatype ng malalim na English na hindi naman naiintindihan ng maraming Pilipino kung ipapablish itong mga pinagsasabi ninyo sa dyaryong Malaya o Abante?
kayong may mga pinag-aralan, pasimulan ninyo ang pag babago, hindi panay dak dak, wala namang gawa. pumunta kayo sa mga kolehiyo at mag gawa kayo ng mga rally para mabuo ninyo kasama ng mga kabataan ang pagbabago sa lipunan
ding,
you think you can end the misery of the people by impeaching GMA?. Do you have a ready patron that is ready to replace her?
lcm,
mayroon ka rin bang ginagawa para mabago ang lipunan? Ano naman ang basehan mo na ang “blogging” dito ( in my case) ay may intensyon na hikayatin ang tao para umalsa? gagamitin lang ng mga kapwa lintang pulitiko ang masa at kabataan para maluloklok sila sa kapangyarihan at pagsamantalahn din ang taong bayan. :)
Do you think it’s FAIR if we turn a blind eye to the fact that she violated the constitution? Whatever happens to this intervention is immaterial. The act, in itself, is already monumental…and as Abe aptly put it, historic.
JCC:
Pardon the comment, but the reason why GMA should be impeached is not a matter of ending the misery of the people. GMA violated the law; it doesn’t matter if she has two years or two days in office, but she has to answer for those violations and/or allegations. That’s why a non-lawyer-type kid like me signed that intervention: because it’s the right thing to do. It’s not because we’re looking for replacements, but because GMA should answer and pay for those violations should she be held guilty of those violations.
If we focus on the issue of replacements and not the issue of GMA violating the law and tainting the institution that is the Presidency, we stick with a tradition of personality-oriented politics. GMA is not above the law.
JCC,
Why not leave the upright citizenship to the Filipino citizens?
You’re in the US. You can say what you want to say but you’re shielded from whatever consequences we, the Filipino citizens who live here and suffer from the ill-effects of corruption.
In response to the question above-quoted by Jen:
Do you think keeping an illegitimate and corrupt president in power will end the people’s suffering?
If yes, then it only shows that you are part of what’s plaguing this nation.
On the other hand if it’s a no and you ask, “Then what would be the point since it’ll be the same either way?” then wouldn’t it be better to do the right thing that to let inequity continue? Remember: all it takes for evil to triumph is for good men to do nothing.
With all due respect Sir, while I have the utmost regard for lawyers, it is also the arrogance of lawyers like you who make me want to believe in the saying that “ang mga abogado ay taga baluktot ng mga tuwid at tagatuwid ng mga baluktot.”
don’t debate too much with jcc
he might charge you a talent fee.
he is after all an extortionist.
so leave the lawyering to him.
“You have been citing authorities penned by legal midgets and dwarfs masquerading as legal luminaries.” – jcc
ang galeng! galeng
and this comes from someone who does not know what technical extortion and conflict of interest are! (let us not forget that keeping your neighbour’s super kalan is not ‘borrowing’)
Jefferson a legal luminary? He probably was but then he said ‘free the slaves’ and yet kept slaves of his own, Kaya naman idol yan ni JCC dahil pareho silang may conflict of interest.
anyways, back to the issue at hand….
i do apologies, i just hate scum lawyers. negative contribution na nga sila sa gdp, mayabang pa. pwe.
“Leave the lawyering to lawyers”??? Hell no. Remember Marcos and his “constitutional authoritarianism”? Ano kayo masaya? Samantalang ang mga abugadong mersenaryo ang pangunahing tagapagbaluktot ng katotohan?
At sa kasalukuyang gobyerno, what is legal is what they can get away with!!!. Sa MoA-AD, nang sablay, na bigla silang nagmaniobra para gawing moot ang ginawa nilang tangkang pagwasak sa Republika. “Leave the lawyering to lawyers”… ano kayo sinuswerte?
We need more “blawgers” who can patiently and convincingly explain stuff and not feel threatened when “bloggers” disagree with them.
I must confess, like JCC, I’ve disagreed so vehemently at times with the SCORP that I have easily forgotten that the Justices are more than mere lawyers, most of whom are to the former as auto repair mechanics are to the designers and engineers of internal combustion engines.
Still, Separation of Powers in this jurisdiction is a crucial issue, and I think that the power of impeachment is at the center of the current problem.
The House and Senate have been thoroughly cuckolded by the Supreme Court and the Presidency that impeachment is basically assault with a dead weapon.
I think there is something fundamentally flawed with that silly one third minority rule to impeach.
It’s undemocratic and queer in a Davide sort of way. In the annals of the 1986 ConCom, turns out he wanted it to be a one fifth minority rule to impeach!
ding, i have to disagree with you on this. the day we refuse to debate and the day we become impatient with mere words is the day we’re utterly like cruella’s people, who have no respect for words or the written word.
its funny that all those who wanted to argue like lawyers are people whose ambition to become one has not materialzed and would rather have this blog as forum to show their lawyerly skills and others with failed ambition would have the skill to hide their “sour graping” that lawyers are corrupt and scum of the earth anyway. ride on people!! ! :) :) :)
jon_limjap,
my wife sends money regulary to her sick mother. and i send money to my sister taking care of our house in quezon city.
the purchasing power of the peso has gone so low that we have to increase our dollar remittance so they can survive this bad economy. do not lecture me on uprightness and patriotism sir. it is because of the collective dollar remittances of people like us which makes your economy afloat and allows you the privilge of still blogging in this website instead of rummaging your next meal in the garbage like most other Filipinos do.
marocharim;
by this time you should realize that the impeachment machinery enshrined in the constitition by parity of argument with TJefferson is a bugbear, a scarecrow which would not dislodge the erring official in power. (i.e. Davide impeachment, Erap impeachment, GMA prior impeachment). The machinery has been so battered that it can no longer act as an escape valve to recall an official of the government the way it was envisioned by the framers of the constitution.
if the country goes with the process, it will fan further dissension among Filipinos and heats up an already charge political atmosphere in the country. possible scenario: military coup, NPA Coup, MILF coup, Church Coup. Result: international business confidence is lost, blood will spill the street.
analyze the political cost, economic cost and human losses of that scenario with less than 2 years GMA will be in power.
Ask your patron to join in the political process comes 2010. From my perspective, this is a saner approach than impeachment, that is if you believe that we can change within the system, but if your agenda is something else, i agree with you to rock the boat now so our political patrons who believe that a power-grab is a better option than the 2010 elections.
may topak talaga itong si jcc insisting that only lawyers can argue.
puleezz, if he were such a good lawyer, he would not have been suspended by the IBP for ignorance of the law.
jcc,
I’m so sorry, my family never *ever* depended on OFW money for sustenance, nor edcuation, nor medicine, nor luxury. Whatever privileges I enjoy in my fine and dandy life are brought about by the hard work of my parents and I, all of which were done *here*.
You sending your money here is not out of your own volition: it is merely a chore necessitated by your mother’s medical condition. Do not speak as if you would contribute to the Philippines if you were able to bring your mother and sister there in the US.
I shouldn’t speak to you about patriotism? Then don’t speak to us about what’s right or wrong.