Affirming a tyrannical rule --Isagani Cruz ; Effectively 100% anti-coup? --W.Monsod

Separate Opinion : Affirming a tyrannical rule

First posted 01:40am (Mla time) Mar 18, 2006
By Isagani Cruz
Inquirer



Editor's Note: Published on Page A12 of the March 18, 2006 issue of the Philippine Daily Inquirer


ONE of the worst decisions rendered by the martial law Supreme Court was Garcia-Padilla vs. Enrile, 122 SCRA 472, written by a cherished friend of mine whose identity I will not reveal here for old times' sake. Only six of his colleagues fully agreed with him, with another five concurring only in the result, meaning they agreed with the conclusion but not with the arguments. One was on official leave, and Justice Claudio Teehankee dissented.

The "ponencia" [written decision] was in my view slavish in nature, stodgy in language and deficient in logic, but it was the law of the land during that regimented period and, unfortunately, is still so even now in this supposedly freer time.

Shorn of its lengthy obsequiousness, it ruled (to dispense with all its whereases and wherefores) that rebellion was a continuing crime and so did not need a judicial warrant to justify the arrest at any time of persons suspected of the offense or any connected crime. The flimsy but pretentious reason was that the suspected rebels are deemed in the actual commission of the continuing offense, or as we lawyers say, "in flagrante delicto," whatever they might be doing at the time of their arrest.

The decision also held that suspected rebels and associated subversives should not be treated as ordinary criminals but as enemy combatants in armed conflict with the government as in a state of war. As such, they were not entitled to the usual guarantees embodied in the Bill of Rights.

I had expected that the totally indefensible doctrine would be among the first abuses to be expunged after Edsa People Power I, but this was not to be. In fact, it was expressly affirmed and applied in the leading case of Umil v. Ramos, 187 SCRA 311, decided in 1990, after the Freedom Constitution had earlier called for the eradication of "all iniquitous vestiges of the previous regime."

The Umil Case, resolving several habeas corpus proceedings filed by suspected insurgents, justified their warrantless arrests on the same shallow ground sustained in the Garcia-Padilla Case. The reorganized Supreme Court repeated with approval that rebellion was a continuing offense that did not require the prior obtention of a warrant for the apprehension of any person suspected of the crime.

The new decision was rendered "per curiam" [by the court] to spare the "ponente" [decision writer] from possible reprisals from the subversive groups. It was concurred in by 13 members of the Court, with only Justice Abraham Sarmiento and me dissenting. When it was received with widespread dissatisfaction, four other justices changed their minds and joined us in supporting the motion for reconsideration, I think more for self-levitation than juristic persuasions. The motion was denied just the same and the public remained unconvinced.

In my dissent, I focused on the reaffirmation of the Garcia-Padilla doctrine that our Court had quoted extensively although it was acknowledged-somewhat stealthily, I thought-only in an unobtrusive footnote. I said:

"I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent of acts, as when he is only washing his hands or taking his supper, or even when he is sleeping, on the ground that he is committing the 'continuing' offense of subversion.

"Libertarians were appalled when that doctrine was applied during the [Ferdinand] Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the new freedom.

"Even if it be argued that the military should be given every support in our fight against subversion, I maintain that the fight should be waged honorably in accordance with the Bill of Rights. I do not believe that in fighting the enemy, we must adopt the ways of the enemy that are precisely what we are fighting against. I submit that our more important motivation should be what we are fighting for."

I added on the motion for reconsideration that the suspected rebels subjected to the doctrine had not been recognized as belligerents under the laws of war and so should remain under the jurisdiction of our municipal laws and not be treated as enemy combatants.

As usual, I spoke in vain. And now Gloria Macapagal-Arroyo's soldiers are making warrantless arrests against suspected rebels as permitted under the oppressive Garcia-Padilla vs. Enrile doctrine that was affirmed and applied in Umil vs. Ramos by the succeeding supposedly liberated Supreme Court. "Tuloy ang ligaya!" [The fun continues!]





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Get Real : Effectively 100% anti-coup?

First posted 01:55am (Mla time) Mar 18, 2006
By Solita Collas-Monsod
Inquirer



Editor's Note: Published on Page A12 of the March 18, 2006 issue of the Philippine Daily Inquirer


IN the latest Pulse Asia nationwide survey, the question was asked (roughly translated): In your opinion, which of the following scenarios will best serve the national interest? Ten separate scenarios were then presented -- five on President Gloria Macapagal-Arroyo's resignation; two on her continuation in office; two on a coup; and one on intervention of a foreign government.

Based on the responses, Pulse Asia reported that 59 percent of Filipinos (those who chose any of the five scenarios involving her resignation) opine that the most beneficial political scenario would be President Arroyo's resignation. For good measure, it was also suggested that the percentage of those who want Ms Arroyo out goes up to 65 percent if one adds the percentage of those who want her removed from office, through a coup (4 percent) or intervention of a foreign government (2 percent). Evidently, the analysts did not consider the possibility that the foreign government could intervene to keep Ms Arroyo in power.

That is one way of looking at the responses. But one can also take those responses as a basis for the following analysis:

The 10 possible "most beneficial" scenarios presented in the survey, and the percentage of those who chose them (totaling 99 percent of respondents, probably due to rounding-off errors) are as follows:

(1) Arroyo resigns, and a special presidential election is held -- 16 percent;

(2) Arroyo resigns and Vice President Noli De Castro becomes president -- 14 percent;

(3) Both Arroyo and De Castro resign, and the Senate president takes over until special elections are held -- 12 percent;

(4) Arroyo resigns and is replaced by a "junta" until the election of a new president or prime minister -- 10 percent;

(5) Arroyo resigns and De Castro temporarily leads while preparing for a new government under a new Constitution -- 7 percent;

(6) Arroyo completes her term -- 23 percent;

(7) Arroyo continues until the Constitution is changed and a parliamentary government is established before 2010 -- 11 percent;

(8) a coup takes place, and military and police decide who will govern -- 3 percent;

(9) a coup takes place, and the military and police themselves take over -- 1 percent; and

(10) a foreign government gets involved and installs in power its Filipino allies -- 2 percent.

From the above, one can as well say none of the 10 possibilities got a majority vote. This shows there's no clear consensus. However, scenario 6 -- in which the President continues in office until 2010 -- was chosen by a significantly (statistically) higher percentage of the respondents than the other possibilities. The five next highest choices at 16, 14, 12, 11 and 10 percent respectively, were, by the way, not significantly different from one another.

Those who persist in saying that there is a "clamor" for the constitutional change should note that scenario 5, in which a new constitution will bring in a new government, is considered as best by only 7 percent of the respondents; and even with the added enticement that a parliamentary government takes over before 2010 -- scenario 7 -- constitutional change still gets only an additional 4 percentage points, or a total of 11 percent.

There is also a message for those who are pushing for a 1,000-day provisional government or junta. The scenario closest to that is scenario 4, in which a junta takes over only for the purpose of immediately electing a new president or prime minister. That gets only 10 percent of the vote -- but what is interesting is that an equal percentage of respondents (9 percent, which is not significantly different) thinks that the scenario is the most inimical political scenario!

Another important message from the Pulse Asia survey results has to do with the two coup scenarios. For those in the military/police who want to be powerbrokers, and those in the political opposition and civil society (including businessmen) who have been playing footsies with them, if not actively encouraging them, please take note: the percentage of respondents who think a coup of this kind is the most beneficial is all of 3 percent -- which is, because the survey's margin of error is also 3 percent; this is like saying that the percentage of respondents in favor of the so-called "withdrawal of support" could be a big fat zero.

And for the more ambitious soldiers -- those who want to wield the power themselves -- the message is at least as stark: the percentage of Filipinos who are in favor of it is effectively zilch (1 percent). One, who is not aware of the margin of error, may be tempted to point out that more Filipinos prefer a foreign government getting involved in the country's affairs than a military/police takeover.

Let me summarize the alternative analysis thus:

(1) there may be 59 percent of Filipinos who want Arroyo to resign, but until they can agree on one -- instead of four or five -- post-Arroyo scenarios, they can kiss a successful resignation move goodbye. Their different choices get trumped by the scenario that has a significant plurality of the votes: the Arroyo-stay scenario.

(2) Even if all 59 percent agree on a post-Arroyo scenario, effectively 100 percent of Filipinos do not want her to be removed through military intervention. (It amazes me how the anti-Arroyo groups criticize her use of the military, but do not seem to think anything of their own attempts to do the same).

You want her out? Do your homework toward an impeachment. And toward ensuring that the 2007 elections take place under a reformed Commission on Elections.





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