Criminalizing policy differences


Goodbye Raul Ilustre Goco. I first met him in Dallas in the summer of 1967. We met some well-scrubbed All-American Yellow Roses of Texas – ain’t they purty! One of them howled when wife Marietta came. “Raowuuuul, I didn’t know you were married!!” Raul and Marietta (Tita) had traveled partly because they wanted to get over the poignant loss of a child who had drowned in the family swimming pool, if my memory is true.

With us in Southern Methodist U seminar that long cool summer (dry, not humid at all) was General Rene Ecarma, Judge Larry Jarencio and Efrain Treñas, and the latter’s missus, who, like Marietta seemed to believe in tight Jawo-man-to-man guarding. I had not been spoken for so Mrs. Trenas encouraged me to woo the daughter of the City Attorney, to improve our race (“mezclar,” she said). But, I have always been shy and torpe, which comes to mind cuz we have a bachelor Prez. So unlike his reported Kamandag Pop, who his Bedan classmates would tell me, was muy pillo con las mujeres. Urban legend? No wonder, Ninoy and Joker hit it famously.

Anyway, contrary to the obsession of PNoy’s ill-wishers, I don’t see him spending a single day in jail because while he may have committed mistakes of the mind—we all do—it is not of the heart. We do not criminalize policy differences when not a single singkong duling lined anyone’s private pocket.

I am incredulous that tough ranking Department of Justice prosecutor Dong Fadullon’s and Usec Toti Baraan’s pockets had allegedly been so lined in the Ampatuan case. I find the accounts in their defense convincing. The truth shall set them free, but welcome to public life. I am still looking for the manses I supposedly accumulated in my Senate stint.

What I find less convincing is the seeming loss of moral stamina in going after the Marcoses, in the malevolent obsession to go after PNoy, Butch Abad, Dong and Toti. Illegitimi non carborundum! Don’t let the bastards grind you down.

The thieving Marcoses were ordered to return billions of ill-gotten wealth on July 15, 2003 by the Supreme Court—SC (Republic v. Sandiganbayan, Ferdinand Marcos, Imelda R. Marcos, Imee Marcos, Ferdinand, Jr.). Done. So we have money for the human rights victims, among other purposes. Are the Marcoses in jail? Not even being probed, which the SC quaintly did not order, unlike in other cases. One ill-gottener is in the Senate, another in the House (Imelda was once convicted by a Division in the PGH case but exonerated en banc) and another in a Guv’s manse. Weird. Have we seen their SALNs? I recall that once, Rep. Imelda had a negative net worth! Ha, ha, ha. Comic page stuff, as is the case with many filings.

On SALN’s, we need to see the filings of anybody, not only of the Prez, the Veep, the Cabinet and the Senators. The press reported that students of mine, among others, had been furnished SALNs of the Justices. But, why even calendar the request in a full-court session with all the SC has to do? It has better things to do, like understanding limitations. And we need to see movements in fortunes and detect possible conflicts of interests.

I have just read again the edifying July 10, 1986 Con-Com debates on Grave Abuse of Discretion (GAD), beginning at page 484. Our Supreme Court is the most powerful, and therefore, the Most Dangerous Branch, because it has managed to interpret itself to be far more powerful than the US model. There, the SC may rule what anyone has done as illegal or unconstitutional (beginning with Marbury v. Madison in 1803 – which we studied in extenso in Harvard Law in 1967); however, I doubt that it has ever said Mr. Prez or Congress, “you have abused you discretion, and gravely at that.” I would just want our SC again on the same level as that of the US paradigm. Co-equal, and agreeing with Malcolm, “to doubt is to sustain,”

Chief Justice (CJ) Concepcion, as a ConCom Commissioner simply wanted no repeat of the abuses of martial law when Macoy was super-exec, super-court, super-legislature and a one-man continuing constitutional convention. We all need to read the record of the July 10, 1986 session of the ConCom for enlightenment and edification. But, I understand the unelected SC’s expansionary appetite; it was not the intent though of the 1986 Original Understanding, from where I sit.

Admittedly, or arguably, PD No. 1949 creating the Judiciary Development Fund was a good one and I’d simply like it amended but only to increase the Fund, given the fine intent to improve personnel benefits and infrastructure, where collected. The House has the power of the purse and the Supreme Court is not autonomous from the people, who the House represents. Sec. 3 of it was arguably meant by Macoy to control the CJ so responsibility should be defused, maybe the top three senior Justices plus a House rep. Far more democratic and harder to manipulate. Today, the SC and the Commission on Audit fail in their legal duty to provide ALL executive judges of JDF quarterly reports. Scofflaws, they are. And one who spoke for the SC even said P.D. No. 1949 is an irrepealable law! For crying out loud!

But, I like the cross-border practice of wealthy government units aiding local courts, via allowances, vehicles and other perks. Blending of power is a desideratum in the context of giving our people better service and a better life. Not always making sabong.

Amending the Consti may be overdue but on term limits, no clause should be effective during Pnoy’s term. I want him to retire in 2016, to plant a tree, write a book and father a child.

Knowing when to leave is as important as knowing when to arrive. And we should leave the stage when the audience is still applauding. And there’s a lot to applaud PNoy for, I believe.

New SC Justice Francis Jardeleza, if my memory is true, I met in the wake last April of Lex Carao, my partner, who used to head ACCRA Law’s litigation department. Francis was not my fave nominee but since he was picked constitutionally, we congratulate and wish him well. Meilou Sereno was not my pick as CJ either but I support her as her elevation was in accord with the institutional arrangement.

Do we now have 15 scorpions in a bottle? Creative tension in the broad public interest, not narrow personal pique, is not unhelpful.


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  1. Ill-gotten? Where was it got and how? Unexplained, yes. Unexplained therefore ill-gotten, check your logic. You lovingly invoke an SC decision when it fits your agenda, then mock it otherwise.

    Human rights victims? Who are they? 9,530 members of Selda, a communist leaning front org plus Joma Sison and some communist comrades, and your EDSA heroes which include Cardinal Sin, Cory and Ninoy Aquino…

  2. “…he may have committed mistakes of the mind—we all do—it is not of the heart.”

    How did you know, Atty Saguisag, it is not a mistake of the heart? Only the Divine Providence could know what is inside us, right?

    Ahh, but if you like someone, a mistake is not out of malice. In our enemies, everything is out of wickedness; even beneficial outcomes are accidental to an evil agenda.

  3. Jose A. Oliveros on

    Continuing my discussion, during the time of US Pres. Franklin Delano Roosevelt, the US Supreme Court voided several major New Deal legislations all intended to improve the US economy following the Great Depression. In retaliation, FDR’s allies in the US Congress introduced a bill empowering the US President to appoint additional members of the Supreme Court, obviously for FDR to ensure that a majority of the SC justices would side with him.

    The whole point is unless a new definition or concept of what is JUDICIAL POWER is made or introduced, there is nothing to prevent the courts – specially the Supreme Court – from ruling that a presidential act or a law passed by Congress is unconstitutional or illegal even if the “grave of abuse discretion” clause is excised from Art. VIII, Sec. 1, 2nd paragraph of the 1987 Charter. That is the essence of JUDICIAL POWER.

  4. Jose A. Oliveros on

    Former Senator Rene Saguisag seemed perturbed or disconcerted that the 15 un-elected Justices of the Supreme Court can embarrass an elected President of the Philippines and/or the 230 or so elected members of both Houses of Congress by telling them on their faces that they have gravely abused their discretion, hence their actions are unconstitutional and illegal.

    The late Pres. Corazon Cojuangco-Aquino was not embarrassed when the Supreme Court, in Laurel versus Garcia, ruled against the proposed sale of the Roppongi property of the Philippines in Japan, purportedly to raise funds for her agrarian reform program. On the contrary, according to the late Senior Associate Justice Isagani A. Cruz, Pres. Cojuangco-Aquino had always accepted adverse Supreme Court decisions “with becoming grace” – at least publicly because as Justice Cruz himself once told me, after a series of powerful dissents or contrary ponencias in major cases of the Cojuangco-Administration, he no longer received birthday greetings or invitations to social functions from Malacanan as he used to early in his tenure at the Supreme Court (But that is an altogether different story).

    Mr. Saguisag wants our Supreme Court to be like the US Supreme Court. Well, just last June, the US Supreme Court – by a unanimous decision – voided three appointments made by Obama to the National Labor Relations Board without the “advise and consent” of the US Senate, as provided for in the US Constitution.

    During the time of George W. Bush, the US Supreme court ruled that the US President has no authority to enforce within the US a decision of the International Court of Justice absent an implementing legislation from the US Congress.

    Going further back into history, the US Supreme Court declared illegal an executive order of Pres. Harry S. Truman ordering the seizure of US steel mills to prevent a strike of steel mill workers and thus jeopardize US military operations at the height of the Korean War.

  5. egis totheend on

    There’s always in your words that offer enlightenment to the ordinary. I wish the Magistrates whom the vast powers have been so granted may do well and let themselves become instruments for the reform our people longed for. It is imperative therefore, that, P-Noy who is a reformer himself and the Magistrates may sit down once in a while for good reasons.