Rule of law 26, RIP Sen. Jovito Salonga

Yesterday, a great statesman, former Senator Jovito Salonga died. I am reposting two comments from two friends, Ted Te, Supreme Court Spokesman, and Adora Navarro, an economist. Posting with their permission. The third paper is a portion the late Senator's lecture in UP some 52 years ago. He spoke like those classical  liberal thinkers several centuries ago, consistent with his being a Liberal Party leader. His focus was on having rule of law in the country, not welfarism, unlike current breed of politicians and legislators.

Rest in peace, Sen. Jovy.
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(1) Salonga: The last of the greats enters immortality

by Ted Te, Thursday, March 10, 2016

…. Bar topnotcher in 1944 (95.3%, tied with his friend and ally Jose W. Diokno) with a law degree from the University of the Philippines, a Masters in Law from Harvard Law School, and a Doctorate in Law from Yale University with a Doctor of Laws Honoris Causa from the U.P. Topnotcher in three senate races, pre-Martial law (1965), post-Plaza Miranda (1971) and post-EDSA (1987). First PCGG Chair. Former Senate President. Principal author of the Code of Conduct and Ethical Standards for Government Workers, the law definining coup d’etat as a felony, and the law defining plunder as a crime, and many others. One of the magnificent 12 who voted to kick out the U.S. bases in 1991 (unforgettable image: Ka Jovy intoning “The treaty is defeated.”)

I am privileged to have met and worked with Jovito R. Salonga in my lifetime…. He wanted to meet to discuss his latest brainchild, Bantay Katarungan, a judiciary watchdog that would screen nominations for the judiciary; this was the concrete expression of his belief that judiciary aspirants must be a cut above the rest in terms of competence, professionalism and integrity, especially on integrity. I and the Robin-to-his-Batman Emil Capulong would meet for many hours discussing his thoughts on how to realize this dream. Much later, this dream would be realized; I would join him for some training sessions involving law students who would serve as monitors. He would later make me an offer to work full-time for Bantay but because I was then neck deep in my advocacy against the death penalty and was handling so many death penalty appeals, I had to decline the offer. I gave him some names and he did consider them, inviting some of them to work for Bantay in the days and years to come….

His human body, ravaged by injuries from the Plaza Miranda bombing and later by illness, kept him from participating for many years in public life; for practically a generation, his name drew no recall. But for those of us fortunate enough to have witnessed this giant among us, his name would always summon memories of a time when a life was a light and that light shone brightly. His passing diminishes us all.  He was the last of the greats. Today, he enters immortality.

Paalam, Ka Jovy. Mabuhay ka!

(2) Adora Navarro

RIP, ex-Senate president Jovito Salonga. A man of courage and integrity, my idol. Born of poor parents, he worked his way to get the best education possible given his circumstances, was imprisoned and tortured by the Japanese during World War II for helping his compatriots, exposed Marcos' abuses and the start of cronyism in the late 1960s, survived the Plaza Miranda bombing in 1971, survived Martial Law, ran after Marcos' ill-gotten wealth as first head of the PCGG, steered the first post-EDSA Senate through several coup attempts, and publicly opposed Cory Aquino on the US military bases issue. I remember how we rallyists danced in the rain after his last vote locked in the decision to kick out the US military bases in 1991. 

For the younger generation, if you want to know more about him and his contributions to nation-building, I suggest you read his memoir "A Journey of Struggle and Hope." Pay close attention to Chapter VIII-The Start of the Marcos Era, Chapter IX-Militarization and the Amassing of Hidden Wealth, and the tragic Chapter XI-The Plaza Miranda Bombing.

I join a grateful nation in celebrating your life, sir. May we and the succeeding generations of Filipinos always remember your words: "Independence, like freedom, is never granted; it is always asserted and affirmed. Its defense is an everyday endeavor--sometimes in the field of battle, oftentimes in the contest of conflicting wills and ideas. It is a daily struggle that may never end--for as long as we live."

(3) Jovito Salonga lecture at UP Diliman, “Good Government”, July 3, 1962.

What is a good government? Is it necessarily a government where the mass of public servants are honest and efficient? To my mind, this is not enough for in Italy and Germany during the war years, the great many were honest and efficient. In fact, during the tragic days of Mussolini, the trains in Italy ran on time as never before. The Nazi concentration camp system in Germany was a model of hideous efficiency, It may well be that in Soviet Russia today, the bulk of public servants are honest, dedicated and efficient— even more so than in many places in the free world.

And so, when we talk about Good Government, we should be careful when we discuss it in the context of a free society of free men. In such a society, the law is more than just a set of rules and decrees; it is a system of ordered liberty.

Now, that would involve us, it would seem, in some kind of internal contradiction. Order and liberty are concepts that are apparently inconsistent, when vou have nothing but order, you have the makings of a garrison state and may eventually achieve what has been correctly phrased as "the unanimity of the graveyard.” When you have nothing but liberty, so that everyone is free to do what he pleases, you have no more and no less than anarchy and chaos. The eventual result is the rule of the strong over the weak— which means loss of liberty itself. One is just as bad as the other....

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See also: 

Rule of Law 23: RoL Index 2014 by the World Justice Project, July 02, 2014 
Rule of Law 24: Policemen as Violators of Traffic Rules, September 15, 2014

Rule of Law 25: Corruption in Europe, December 21, 2015

BWorld 37, World rule of law index and the Philippines, January 11,  2016

Rule of Law 16: On the New SC Chief Justice Ma. Lourdes Sereno

From so many lawyers in the Philippines, among them whom I highly respect is Atty. Theodore "Ted" Te. Not only that he was a friend way back in our undergrad days in UP Diliman in the mid-80s, I like the way he speaks frankly on many issues.

After the announcement of the new Supreme Court (SC) Chief Justice, UP Law Professor Ma. Lourdes Sereno, Ted posted these in his facebook wall. I like his opinions, so I am reposting them here.
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"For such a time as this": It is a landmark appointment in two ways--Chief Justice Sereno is the first female to sit as such and, unless sooner removed or resigned, she will also serve for the equivalent of the terms of three Presidents. It is also a nod to the past, specifically to the "deep selection" that the first President Aquino favored, with the Chief Justice bypassing all of her colleagues who were nominated for the same Office.

Chief Justice Sereno was my professor and colleague at the faculty of the University of the Philippines. A deeply prayerful person wont to quote scripture together with legal provisions, her biggest challenge right now is to transform--(a) herself from the Court's dissenter to the Court's leader and consensus builder by showing that she can do more than write courageous and stinging dissents, and (b) her image as the current President's favored one (being the first to be appointed as Associate and the first to be appointed as Chief Justice under his watch) by displaying, if necessary and where appropriate, an unexpected ingratitude to the appointing power. In doing so, she will thereby transform the Court that she now leads.

As I did when I learned of her appointment as Associate Justice (which was the last time I texted her), I offer her now my congratulations for the appointment and my prayers for courage, wisdom,strength and protection in the years ahead. Perhaps the call for her, as Chief Justice, is to not remain silent and hold her peace lest relief and deliverance rise from another place but to appreciate that she has been gifted with high office "for such a time as this." (Esther 4:14)

Corona Trial 2: Impeachment for Beginners

(Note: the original title of this paper was "Rule of Law 14: Impeachment for Beginners")

Here is a good reading material for people who want to understand about impeachment -- removing a high official in the Executive or Judiciary branches of government via Constitutional and legal process, not by street demonstrations and "people power revolution." I got this from facebook and it has been forwarded and shared by several dozen people already via facebook Notes and other blogs.

The author is a friend in the university way back in the 80s. Atty. Theodore "Ted" Te is a small (he's probably less than 5 feet tall) and boyish looking lawyer with a huge brain; he's frank and articulate. In my post yesterday, Rule of Law 4: Impeaching the SC Chief Justice, Ted wrote,"betrayal of public trust is another question (betrayal of my trust? no, I never trusted him at all, nothing to betray)", and that's what I meant of Ted being frank.

The subject of impeachment is the Supreme Court (SC) Chief Justice Renato Corona; the one who instigated the impeachment -- through his partymates and political allies in the House of Representatives is the President of the country, Benigno "Noynoy" Aquino; and the ultimate judge will be the Senate, to be headed by the Senate President, Juan Ponce Enrile.

This is an interesting photo. From left: CJ Corona, Senate President Enrile, and President Aquino. In the hierarchy of political leadership in the country, they are ranked numbers 5, 3 and 1, respectively. Numbers 2 and 4 are the Vice President and the Speaker of the House of Representatives.

Ted explains here the following:
1. the process of impeachment,
2. the options for the accused, in this case, CJ Corona,
3. implications for the accusers, in this case the House of Representatives and indirectly, President Aquino,
4. the eight (8) charges hurled against the accused,
5. the burdens (evidence and tactics) for the accusers, and
6. pursuing accountability and rule of law.

That is why I consider Ted's paper a brief but good reading material for non-lawyers like me and many other citizens.

On a side note, I checked wikipedia's definition of "rule of law" just a few minutes ago and I was disappointed. Wiki (or the last person who edited and defined the term) wrote,

Rule of law is a legal maxim that suggests that governmental decisions be made by applying known principles.

For me this is wrong. Rule of law applies not only to government but also to non-government contracts and decisions. An example: I borrowed XX thousand pesos from a friend with a promise that I will pay him the full amount within one month, with or without interest. A month has passed and I did not pay him, partially or fully, I broke the law or contract with my friend. I can talk to him and ask for an extension in payment timetable, or he can pressure me through various means (peer and friends' pressure, going to court, etc.) so that I will pay as stipulated in our contract.

Now to Ted's paper.
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Hell to the Chief

By Theodore Te
December 14, 2011

In the movie “Gladiator,” Maximus, before leading the armies of Marcus Aurelius to battle, looks to Quintus, his adjutant and gives a simple order, “at my signal, unleash hell.”

On Monday, Dec. 5, 2011, the President gave the signal—when he publicly shamed the Chief Justice raising issues that went to the legality of his appointment as well as the nature of his character at a National Criminal Justice Summit—and his loyal army unleashed hell on the Chief Justice.

One week after, in a stunning demonstration of “all deliberate speed,” 188 members of the House of Representatives, summoned by the Speaker, literally lined up to sign an impeachment complaint which, for many of them, they had yet to read, let alone comprehend.

Corona Trial 1: Impeaching the SC Chief Justice

(Note: original title of this paper was "Rule of Law 13: Impeaching the SC Chief Justice")

I am not a lawyer but being an advocate of the rule of law (the law applies to all, no exception; the law applies equally to unequal people) and highly detesting the rule of men (the law and prohibitions exempt the rulers, apply only to ordinary mortals and enemies of the rulers), I got interested in following the conflict between the heads of two big institutions in the Philippine government. They are the President of the country and head of the Executive Branch, President Noynoy Aquino, and the Chief Justice of the Supreme Court and head of the Judiciary Branch, CJ Renato Corona.

While there was a conflict between the two personalities before, things erupted when the SC granted a temporary restraining order (TRO) on the travel ban imposed by the Department of Justice (DOJ) against former President Gloria Macapagal Arroyo (GMA) who wanted to go abroad for "medical treatment" even if she was properly and efficiently treated at St. Luke's Hospital here in Manila. The main issue or fear of the DOJ and the PNoy Aquino government, is that GMA will not come back once they go out of the country knowing the multiple political and electoral scandals that they got involved, all unresolved.

There are many other recent SC decisions that the PNoy government said were mainly favorable to GMA or were hurtful to the current administration.

Also, the issue of "midnight appointment" of CJ Renato Corona, appointed only about 1 or 2 weeks before the term of GMA expired by end-June 2010, when the rules -- I think it's stated in the Constitution, or in certain laws -- say that such and similar appointments should be done within two months (or more) before the end of term of the departing President. This is one of the political baggages that CJ Corona has to contend with while he is sitting at the SC.

I have several friends in facebook, friends while I was still at the University of the Philippines (UP) way back in the 80s, who are bright minds in the legal profession now. I turn to them to get bright legal opinions on issues like this. Such free legal opinions, interactive, thanks to facebook (and twitter too) :-)

1. Marvic Leonen, Dean, UP College of Law:

A. Tweets:

the power of finality given to the SC justices is different from the idea of infallibility. Impeachment is a consti process proving this.

there is a difference between an institution and its incumbent. incumbents must account: do their acts benefit their institution?

B. Facebook:

Imoeachment is a process that allows accountability. When it is used against an incumbent, it should never be mistaken as an affront against the institution where he belongs. Rather, it should be viewed as a way of strengthening that institution. We weaken public institutions whenever we suffer in silence, keep our genuine criticisms private and non-threatening to those in power. Inaction against abuse by incumbents of their power as judges or justices reconstitutes wrongs as rights.

The ability of our courts to determine what is law does not certainly make it the weakest branch of government. Because it has the capacity to officially declare what is legal, determine which hierarchies survive, and suggest what modes of reasoning can be privileged by our legal order; it may well be our most dangerous branch of government.

The legitimacy of a court is usually fostered by the idea that it is a collective body, i.e. that wise men and women check each other's idiosyncrasies. However, when the process of selection of justices become flawed or imbued with too much politics, this assumption fails. Hence the need for external processes to come in, like impeachment.

I like Marvic's opinion here. What was impeached by the House of Representatives (HOR) yesterday where 188 of 284 members signed the impeachment complaint was the head of the SC, not the SC itself. It was the person, not the institution. Besides, HOR impeachment is only part 1 of the 2-steps process. The next battleground will be the decision of the Senate whether they will uphold the decision of the HOR or not.

This is indeed a very divisive act but I think it's worth the effort. The impeachment proceeding vs the SC CJ, perhaps the first in the Philippines, would be a good lesson for those wanting to change the Constitution and correct the current practice that ALL members of the SC including the Chief Justice, are appointed by the President. To me, this already defeats the "Judiciary independece from the Executive" principle.

2. Atty. Theodore "Ted" Te:, faculty member, UP College of Law:

Don't get me wrong. I agree that the CJ can only be removed by impeachment and not by "parinig." He's not the resigning type, if he were, he'd have done it before at the height of the "name and shame" before and after his midnight appointment. I have read the complaint and many of the issues raised in the impeachment complaint are real and are serious wrongs. I seriously believe that the CJ failed to exercise leadership and seriously damaged the Court during the plagiarism investigation--whether that constitutes betrayal of public trust is another question (betrayal of my trust? no, I never trusted him at all, nothing to betray) and one that is addressed to the Senators, 3/4 of them.

My questions go to process, timing and agenda. An impeachment trial should bring enough evidence to convince enough senators to remove not just any public officer but the Chief Justice, head of a separate branch of government; while not proof beyond reasonable doubt, it should be substantial enough to convince presumably independent-minded senators to convict on at least one count. I hope that this complaint is not based on the premise that the CJ will resign to avoid the embarrassment of a trial, like Gutierrez. There's too much riding on this to be working on that premise. Because ultimately, if the complaint is not proven and the CJ is not removed, then the admin will have further weakened an already diluted impeachment mechanism (cf. Oliver Lozano and the mad rush to file preclusive impeachment complaints v. Gloria).

Why now? Before the last session dates of SC? So that no appeal can be made? Doing exactly what it is accusing the SC of doing in the Gloria TRO? If the cases are strong enough to convict, they should be strong enough to withstand parliamentary debate. Its like watching kids quarrel--you sucker punched me, so I'll sucker punch you back. And what's the ultimate agenda? Transform an antagonistic SC into a pliable and "friendly" SC? So, Mr. Kettle, meet Mr. Pot. If that is so, then there's really no difference. Ultimately, this goes back to the "original sin of omission or failure"--they did not prepare the cases against Gloria well ahead of time and so they now need to scramble to prevent what appears to be a junking of the charges hastily filed by the COMELEC-DOJ panel. If this is what the admin is trying to head off, then it will be no better than what Marcos did to the SC.

Dang, I like Ted's opinion too. The PNoy government simply made a big mistake of not filing a single case against GMA since it assumed power in June 30, 2010, until the SC TRO on GMA travel ban was issued, then the current administration scrambled on various political and legal measures.

Back to the rule of law. The law applies to all, no one is exempted and no one can grant exemption. Impeachment is in the Philippine Constitution. The impeachment trial in the Senate next year will be more transparent and more accountable, compared to press releases or acerbic political sound bites issued by the Executive, and sometimes by the Judiciary. The HOR will present evidences and proof to their impeachment case, the SC'S CJ will provide evidences and proof negating the complaints filed by the House, and the Senate must be as objective as possible, not 100 percent of course as legislators belong to political parties and those parties have taken a stand already, explicit or implicit, on the impeachment case.

Supporters of GMA, like two of her sons who are Congressmen, can equally file an impeachment complaint against President Aquino. That is possible but not viable since the ruling political party and its allied parties are affiliated with the President.

This is a big fight between two leaders of two branches of a BIG government. There is danger that both or all three branches will suffer more credibility problems with the people, us ordinary mortals. But by making the process as transparent as possible, any or all of the three branches can gain credibility.

There is too much political and economic power in the hands of the government and its three branches -- the power to regulate and impose various prohibitions and taxation in the lives of the people. It is that big power to regulate and impose prohibitions and restrictions, that attract many of the most shrewd, most clever among us to be in government, in any or all of the three branches.

I believe that a society that really promulgates the rule of law will ultimately have a very lean, minimal and limited government. A government that expands, not restricts, individual freedom. Like strictly imposing the laws against killing, murder, robbery, rape, extortion, land grabbing, kidnapping, and other crimes against persons and their private properties. This way, the government rewards the industrious and hard working (by removing many or all restrictions to entrepreneurship) while it penalizes the lazy, the envious and the criminals.
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See also: 
Rule of Law 8: Purpose and Supremacy of the Law, June 15, 2010
Rule of Law 9: Laws, Prohibitions and Corruption, June 30, 2010
Rule of Law 10: On Wang-wang and Government Laws, July 04, 2010
Rule of Law 11: RoL Index, October 15, 2010
Rule of Law 12: Gloria Arroyo, Travel Abroad and the SC, November 16, 2011