May the President remove Deputy Ombudsman and Special Ombudsman?

source:   Gonzales vs OP, G.R. No. 196231 (January 28, 2014) En banc

BRION, J.:

We resolve the Office of the President's (OP 's) motion for reconsideration of our September 4, 2012 Decision1 which ruled on the petitions filed by Deputy Ombudsman Emilio Gonzales III and Special Prosecutor Wendell Barreras-Sulit. Their petitions challenged the constitutionality of Section 8(2) of Republic Act (RA) No. 6770.2

In the challenged Decision, the Court upheld the constitutionality of Section 8(2) of RA No. 6770 and ruled that the President has disciplinary jurisdiction over a Deputy Ombudsman and a Special Prosecutor. The Court, however, reversed the OP ruling that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust; and (ii) imposed on him the penalty of dismissal.

I. ANTECEDENTS
II. COURT’S RULING

On motion for reconsideration and further reflection, the Court votes to grant Gonzales’ petition and to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman. (As the full explanation of the Court’s vote describes below, this conclusion does not apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the Constitution. The prevailing ruling on this latter point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor Leonen).

A. Preliminary considerations:
B. The Deputy Ombudsman: Constitutional Issue

a. The Philippine Ombudsman
b. "Independence" of constitutional bodies vis-a-vis the Ombudsman’s independence

Notably, the independence enjoyed by the Office of the Ombudsman and by the Constitutional Commissions shares certain characteristics – they do not owe their existence to any act of Congress, but are created by the Constitution itself; additionally, they all enjoy fiscal autonomy. In general terms, the framers of the Constitution intended that these "independent" bodies be insulated from political pressure to the extent that the absence of "independence" would result in the impairment of their core functions.

xxx xxx xxx

The kind of independence enjoyed by the Office of the Ombudsman certainly cannot be inferior – but is similar in degree and kind – to the independence similarly guaranteed by the Constitution to the Constitutional Commissions since all these offices fill the political interstices of a republican democracy that are crucial to its existence and proper functioning.

c. Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus unconstitutional

Our discussions, particularly the Court’s expressed caution against presidential interference with the constitutional commissions, on one hand, and those expressed by the framers of the 1987 Constitution, on the other, in protecting the independence of the Constitutional Commissions, speak for themselves as overwhelming reasons to invalidate Section 8(2) of RA No. 6770 for violating the independence of the Office of the Ombudsman.

In more concrete terms, we rule that subjecting the Deputy Ombudsman to discipline and removal by the President, whose own alter egos and officials in the Executive Department are subject to the Ombudsman’s disciplinary authority, cannot but seriously place at risk the independence of the Office of the Ombudsman itself. The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.

What is true for the Ombudsman must be equally and necessarily true for her Deputies who act as agents of the Ombudsman in the performance of their duties. The Ombudsman can hardly be expected to place her complete trust in her subordinate officials who are not as independent as she is, if only because they are subject to pressures and controls external to her Office. This need for complete trust is true in an ideal setting and truer still in a young democracy like the Philippines where graft and corruption is still a major problem for the government. For these reasons, Section 8(2) of RA No. 6770 (providing that the President may remove a Deputy Ombudsman) should be declared void.

d. The mutual-protection argument for crafting Section 8(2)of RA No. 6770

In crafting Section 8(2) of RA No. 6770, Congress apparently addressed the concern that a lack of an external check against the Deputy Ombudsman would result in mutual protection between the Ombudsman and her Deputies.

While the preceding discussion already suffices to address this concern, it should be added that this concern stands on shaky grounds since it ignores the existing checks and balances already in place. On the one hand, the Ombudsman’s Deputies cannot protect the Ombudsman because she is subject to the impeachment power of Congress. On the other hand, the Ombudsman’s attempt to cover up the misdeeds of her Deputies can be questioned before the Court on appeal or certiorari. The same attempt can likewise subject her to impeachment.

The judicial recourse available is only consistent with the nature of the Supreme Court as a non-political independent body mandated by the Constitution to settle judicial and quasi-judicial disputes, whose judges and employees are not subject to the disciplinary authority of the Ombudsman and whose neutrality would be less questionable. The Members of the Court themselves may be subjected to the impeachment power of Congress.

In these lights, the appeal, if any, of the mutual protection argument becomes distinctly implausible. At the same time, the Court remains consistent with its established rulings - that the independence granted to the Constitutional Commissions bars any undue interference from either the Executive or Congress – and is in full accord with constitutional intent.

e. Congress’ power determines the manner and causes for the removal of non-impeachable officers is not a carte blanch authority

C. The Deputy Ombudsman: The Dismissal Issue
D. The Special Prosecutor: The Constitutional Issue

a. The Office of the President’s finding of gross negligence has no legal and factual leg to stand on

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the time83 became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in jurisprudence.

Congress recognized the importance of the Special Prosecutor as a necessary adjunct of the Ombudsman, aside from his or her deputies, by making the Office of the Special Prosecutor an organic component of the Office of the Ombudsman and by granting the Ombudsman control and supervision over that office.105 This power of control and supervision includes vesting the Office of the Ombudsman with the power to assign duties to the Special Prosecutor as he/she may deem fit.1âwphi1 Thus, by constitutional design, the Special Prosecutor is by no means an ordinary subordinate but one who effectively and directly aids the Ombudsman in the exercise of his/her duties, which include investigation and prosecution of officials in the Executive Department.

 xxx xxx xxx

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the Ombudsman's deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence under the Constitution.

III. SUMMARY OF VOTING

In the voting held on January 28, 2014, by a vote of 8-7,108 the Court resolved to reverse its September 4, 2012 Decision insofar as petitioner Gonzales is concerned (G.R. No. 196231). We declared Section 8(2) of RA No. 6770 unconstitutional by granting disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the independence of the Office of the Ombudsman.

However, by another vote of 8-7,109 the Court resolved to maintain the validity of Section 8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did not consider the Office of the Special Prosecutor to be constitutionally within the Office of the Ombudsman and is, hence, not entitled to the independence the latter enjoys under the Constitution.

 

WHEREFORE, premises considered, the Court resolves to declare Section 8(2) UNCONSTITUTIONAL.


source:   Gonzales vs OP, G.R. No. 196231 (September 4, 2012) En banc

The Court's Ruling

Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate that the President has no disciplinary jurisdiction over them considering that the Office of the Ombudsman to which they belong is clothed with constitutional independence and that they, as Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of said office.

The Court is not convinced.

 The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prose-cutor is not exclusive.

By granting express statutory power to the President to remove a Deputy Ombudsman and a
Special Prosecutor, Congress merely filled an obvious gap in the law.

The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is
Implied from his Power to Appoint.

Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the
Independence of the Office of the Ombudsman.

Petitioner Gonzales may not be removed from office where the questioned acts, falling short of
constitutional standards, do not constitute betrayal of public trust.

The Long View: The North remembers

That was the title of a newspaper ad that appeared in the papers when Gov. Imee Marcos was scheduled for her showdown with Majority Leader Rodolfo Fariñas. Designed in the unique title font of the cable show “Game of Thrones,” it thanked the governor “for RA 7171 projects!” on behalf of “tobacco farmers, vegetable associations, Ilocos Norte zanjeras.” Predictably, the ad drove fans of the show crazy, but proved Governor Marcos’ shrewd ability to use pop culture for her purposes. Who can forget the video of her brother, dressed in Jedi Knight robes, waving around a lightsaber on the famous sand dunes of Paoay?

The Fariñas vs. Marcos showdown has engrossed political observers for months. The intricacies of Ilocos Norte provincial politics aside, something bigger was read into the conflict beyond it being merely the breakdown of the old division of territory between the two families: Laoag is supposed to be the Fariñas bailiwick while the province is the Marcos’.

That bigger thing was whether Rudy going after Imee had the blessings of the President or not. While the Majority Leader has always someone all administrations are keen to have on their side, he has become particularly essential at present, helping to smooth relations and crack the whip when required (which seems to be often considering the slender bonafides of the Speaker). This suggested to observers that Fariñas was in a position to act with relative impunity against the Marcoses, because the Palace needs him quite badly indeed. Another point of view suggested that the President’s enthusiasm for the Marcoses had waned, as he warmed to the job and stopped viewing his own presidency as a transitional one in place merely to pave the way for a Marcos restoration. There is no greater tonic for self-confidence than wielding the powers of the presidency. This view suggested that having discovered himself an essential man, the President would neither relinquish his office ahead of the expiration of his term, or be so imprudent as to actively promote the replacement of the current Vice President after he had quickly, and thoroughly, taken her measure and found her utterly non-threatening. Besides which, any political debt he owed to the Marcoses could be deemed paid off with the burial of the Great Dictator in the Libingan ng mga Bayani.

On the other hand, as Onofre Corpuz once observed in his Roots of the Filipino Nation, “[I]t is still a truism in modern-day Philippine politics that no President of the Republic gains anything by interfering in contests between provincial political ‘chieftains’.” Better to keep not just both sides guessing as to whose side he was on, but everyone else wondering what, exactly, might be up his sleeves—even if it might be nothing. Perception is King, and keeping everyone guessing is as good a way to prop up the throne as any.

For a time it seemed Fariñas, too, had taken the measure of the Marcoses and found them weak. The zeal—and zest—with which he made his case, corralled low-ranking provincial bureaucrats, conducted hearings with the requisite combination of verbal fireworks and skillful use of subpoenas and detention orders for contempt, and had the Speaker and his fellow representatives tag-teaming to take on all comers, whether in the form of possible relief in the courts (hence the Speaker’s fight with the Court of Appeals) or at the hands of the Marcoses (hence the threat to declare her in contempt if she not only failed to appear at the House proceedings, but refused to answer the committee’s questions), all these were signs of a man on the up-and-up, doing victory laps.

But he failed. Many wondered why, instead of say, Estelito Mendoza, Mother and Daughter Marcos brought Juan Ponce Enrile with them to the showdown in the House. You only have to remember the impeachment of Renato Corona and how Fariñas would genuflect, almost daily, before Enrile, to know that here was a man who, for whatever reason, the fearsome Fariñas held in awe. His presence was enough to put the Majority Leader on his best behavior; his strategic whisperings to the governor were enough to attribute the governor’s answers—so sorry, we meant well, do you hear the people sing, singing the songs of grateful men?—to his legal wisdom and deny Fariñas grounds to further detain the bureaucrats or continue tormenting Imee.

In the end, without a case, only face-saving rhetoric was left for Fariñas. The main point had been made: Marcoses do not lose. They do not undergo detention. They take on all comers. Their arsenal may be antique, but it works.

 

source:  Philippine Daily Inquirer By: Manuel L. Quezon III

The Long View: The North remembers

That was the title of a newspaper ad that appeared in the papers when Gov. Imee Marcos was scheduled for her showdown with Majority Leader Rodolfo Fariñas. Designed in the unique title font of the cable show “Game of Thrones,” it thanked the governor “for RA 7171 projects!” on behalf of “tobacco farmers, vegetable associations, Ilocos Norte zanjeras.” Predictably, the ad drove fans of the show crazy, but proved Governor Marcos’ shrewd ability to use pop culture for her purposes. Who can forget the video of her brother, dressed in Jedi Knight robes, waving around a lightsaber on the famous sand dunes of Paoay?

The Fariñas vs. Marcos showdown has engrossed political observers for months. The intricacies of Ilocos Norte provincial politics aside, something bigger was read into the conflict beyond it being merely the breakdown of the old division of territory between the two families: Laoag is supposed to be the Fariñas bailiwick while the province is the Marcos’.

That bigger thing was whether Rudy going after Imee had the blessings of the President or not. While the Majority Leader has always someone all administrations are keen to have on their side, he has become particularly essential at present, helping to smooth relations and crack the whip when required (which seems to be often considering the slender bonafides of the Speaker). This suggested to observers that Fariñas was in a position to act with relative impunity against the Marcoses, because the Palace needs him quite badly indeed. Another point of view suggested that the President’s enthusiasm for the Marcoses had waned, as he warmed to the job and stopped viewing his own presidency as a transitional one in place merely to pave the way for a Marcos restoration. There is no greater tonic for self-confidence than wielding the powers of the presidency. This view suggested that having discovered himself an essential man, the President would neither relinquish his office ahead of the expiration of his term, or be so imprudent as to actively promote the replacement of the current Vice President after he had quickly, and thoroughly, taken her measure and found her utterly non-threatening. Besides which, any political debt he owed to the Marcoses could be deemed paid off with the burial of the Great Dictator in the Libingan ng mga Bayani.

On the other hand, as Onofre Corpuz once observed in his Roots of the Filipino Nation, “[I]t is still a truism in modern-day Philippine politics that no President of the Republic gains anything by interfering in contests between provincial political ‘chieftains’.” Better to keep not just both sides guessing as to whose side he was on, but everyone else wondering what, exactly, might be up his sleeves—even if it might be nothing. Perception is King, and keeping everyone guessing is as good a way to prop up the throne as any.

For a time it seemed Fariñas, too, had taken the measure of the Marcoses and found them weak. The zeal—and zest—with which he made his case, corralled low-ranking provincial bureaucrats, conducted hearings with the requisite combination of verbal fireworks and skillful use of subpoenas and detention orders for contempt, and had the Speaker and his fellow representatives tag-teaming to take on all comers, whether in the form of possible relief in the courts (hence the Speaker’s fight with the Court of Appeals) or at the hands of the Marcoses (hence the threat to declare her in contempt if she not only failed to appear at the House proceedings, but refused to answer the committee’s questions), all these were signs of a man on the up-and-up, doing victory laps.

But he failed. Many wondered why, instead of say, Estelito Mendoza, Mother and Daughter Marcos brought Juan Ponce Enrile with them to the showdown in the House. You only have to remember the impeachment of Renato Corona and how Fariñas would genuflect, almost daily, before Enrile, to know that here was a man who, for whatever reason, the fearsome Fariñas held in awe. His presence was enough to put the Majority Leader on his best behavior; his strategic whisperings to the governor were enough to attribute the governor’s answers—so sorry, we meant well, do you hear the people sing, singing the songs of grateful men?—to his legal wisdom and deny Fariñas grounds to further detain the bureaucrats or continue tormenting Imee.

In the end, without a case, only face-saving rhetoric was left for Fariñas. The main point had been made: Marcoses do not lose. They do not undergo detention. They take on all comers. Their arsenal may be antique, but it works.

 

source:  Philippine Daily Inquirer By: Manuel L. Quezon III

The Long View: The North remembers

That was the title of a newspaper ad that appeared in the papers when Gov. Imee Marcos was scheduled for her showdown with Majority Leader Rodolfo Fariñas. Designed in the unique title font of the cable show “Game of Thrones,” it thanked the governor “for RA 7171 projects!” on behalf of “tobacco farmers, vegetable associations, Ilocos Norte zanjeras.” Predictably, the ad drove fans of the show crazy, but proved Governor Marcos’ shrewd ability to use pop culture for her purposes. Who can forget the video of her brother, dressed in Jedi Knight robes, waving around a lightsaber on the famous sand dunes of Paoay?

The Fariñas vs. Marcos showdown has engrossed political observers for months. The intricacies of Ilocos Norte provincial politics aside, something bigger was read into the conflict beyond it being merely the breakdown of the old division of territory between the two families: Laoag is supposed to be the Fariñas bailiwick while the province is the Marcos’.

That bigger thing was whether Rudy going after Imee had the blessings of the President or not. While the Majority Leader has always someone all administrations are keen to have on their side, he has become particularly essential at present, helping to smooth relations and crack the whip when required (which seems to be often considering the slender bonafides of the Speaker). This suggested to observers that Fariñas was in a position to act with relative impunity against the Marcoses, because the Palace needs him quite badly indeed. Another point of view suggested that the President’s enthusiasm for the Marcoses had waned, as he warmed to the job and stopped viewing his own presidency as a transitional one in place merely to pave the way for a Marcos restoration. There is no greater tonic for self-confidence than wielding the powers of the presidency. This view suggested that having discovered himself an essential man, the President would neither relinquish his office ahead of the expiration of his term, or be so imprudent as to actively promote the replacement of the current Vice President after he had quickly, and thoroughly, taken her measure and found her utterly non-threatening. Besides which, any political debt he owed to the Marcoses could be deemed paid off with the burial of the Great Dictator in the Libingan ng mga Bayani.

On the other hand, as Onofre Corpuz once observed in his Roots of the Filipino Nation, “[I]t is still a truism in modern-day Philippine politics that no President of the Republic gains anything by interfering in contests between provincial political ‘chieftains’.” Better to keep not just both sides guessing as to whose side he was on, but everyone else wondering what, exactly, might be up his sleeves—even if it might be nothing. Perception is King, and keeping everyone guessing is as good a way to prop up the throne as any.

For a time it seemed Fariñas, too, had taken the measure of the Marcoses and found them weak. The zeal—and zest—with which he made his case, corralled low-ranking provincial bureaucrats, conducted hearings with the requisite combination of verbal fireworks and skillful use of subpoenas and detention orders for contempt, and had the Speaker and his fellow representatives tag-teaming to take on all comers, whether in the form of possible relief in the courts (hence the Speaker’s fight with the Court of Appeals) or at the hands of the Marcoses (hence the threat to declare her in contempt if she not only failed to appear at the House proceedings, but refused to answer the committee’s questions), all these were signs of a man on the up-and-up, doing victory laps.

But he failed. Many wondered why, instead of say, Estelito Mendoza, Mother and Daughter Marcos brought Juan Ponce Enrile with them to the showdown in the House. You only have to remember the impeachment of Renato Corona and how Fariñas would genuflect, almost daily, before Enrile, to know that here was a man who, for whatever reason, the fearsome Fariñas held in awe. His presence was enough to put the Majority Leader on his best behavior; his strategic whisperings to the governor were enough to attribute the governor’s answers—so sorry, we meant well, do you hear the people sing, singing the songs of grateful men?—to his legal wisdom and deny Fariñas grounds to further detain the bureaucrats or continue tormenting Imee.

In the end, without a case, only face-saving rhetoric was left for Fariñas. The main point had been made: Marcoses do not lose. They do not undergo detention. They take on all comers. Their arsenal may be antique, but it works.

 

source:  Philippine Daily Inquirer By: Manuel L. Quezon III

The Long View: The North remembers

That was the title of a newspaper ad that appeared in the papers when Gov. Imee Marcos was scheduled for her showdown with Majority Leader Rodolfo Fariñas. Designed in the unique title font of the cable show “Game of Thrones,” it thanked the governor “for RA 7171 projects!” on behalf of “tobacco farmers, vegetable associations, Ilocos Norte zanjeras.” Predictably, the ad drove fans of the show crazy, but proved Governor Marcos’ shrewd ability to use pop culture for her purposes. Who can forget the video of her brother, dressed in Jedi Knight robes, waving around a lightsaber on the famous sand dunes of Paoay?

The Fariñas vs. Marcos showdown has engrossed political observers for months. The intricacies of Ilocos Norte provincial politics aside, something bigger was read into the conflict beyond it being merely the breakdown of the old division of territory between the two families: Laoag is supposed to be the Fariñas bailiwick while the province is the Marcos’.

That bigger thing was whether Rudy going after Imee had the blessings of the President or not. While the Majority Leader has always someone all administrations are keen to have on their side, he has become particularly essential at present, helping to smooth relations and crack the whip when required (which seems to be often considering the slender bonafides of the Speaker). This suggested to observers that Fariñas was in a position to act with relative impunity against the Marcoses, because the Palace needs him quite badly indeed. Another point of view suggested that the President’s enthusiasm for the Marcoses had waned, as he warmed to the job and stopped viewing his own presidency as a transitional one in place merely to pave the way for a Marcos restoration. There is no greater tonic for self-confidence than wielding the powers of the presidency. This view suggested that having discovered himself an essential man, the President would neither relinquish his office ahead of the expiration of his term, or be so imprudent as to actively promote the replacement of the current Vice President after he had quickly, and thoroughly, taken her measure and found her utterly non-threatening. Besides which, any political debt he owed to the Marcoses could be deemed paid off with the burial of the Great Dictator in the Libingan ng mga Bayani.

On the other hand, as Onofre Corpuz once observed in his Roots of the Filipino Nation, “[I]t is still a truism in modern-day Philippine politics that no President of the Republic gains anything by interfering in contests between provincial political ‘chieftains’.” Better to keep not just both sides guessing as to whose side he was on, but everyone else wondering what, exactly, might be up his sleeves—even if it might be nothing. Perception is King, and keeping everyone guessing is as good a way to prop up the throne as any.

For a time it seemed Fariñas, too, had taken the measure of the Marcoses and found them weak. The zeal—and zest—with which he made his case, corralled low-ranking provincial bureaucrats, conducted hearings with the requisite combination of verbal fireworks and skillful use of subpoenas and detention orders for contempt, and had the Speaker and his fellow representatives tag-teaming to take on all comers, whether in the form of possible relief in the courts (hence the Speaker’s fight with the Court of Appeals) or at the hands of the Marcoses (hence the threat to declare her in contempt if she not only failed to appear at the House proceedings, but refused to answer the committee’s questions), all these were signs of a man on the up-and-up, doing victory laps.

But he failed. Many wondered why, instead of say, Estelito Mendoza, Mother and Daughter Marcos brought Juan Ponce Enrile with them to the showdown in the House. You only have to remember the impeachment of Renato Corona and how Fariñas would genuflect, almost daily, before Enrile, to know that here was a man who, for whatever reason, the fearsome Fariñas held in awe. His presence was enough to put the Majority Leader on his best behavior; his strategic whisperings to the governor were enough to attribute the governor’s answers—so sorry, we meant well, do you hear the people sing, singing the songs of grateful men?—to his legal wisdom and deny Fariñas grounds to further detain the bureaucrats or continue tormenting Imee.

In the end, without a case, only face-saving rhetoric was left for Fariñas. The main point had been made: Marcoses do not lose. They do not undergo detention. They take on all comers. Their arsenal may be antique, but it works.

 

source:  Philippine Daily Inquirer By: Manuel L. Quezon III

With Due Respect: Who’s still afraid of martial law?

Even after the Supreme Court upheld the constitutionality of Proclamation No. 216, the martial law (ML) edict, by a large majority (11-2-1-1); even after Congress, in joint session, extended it till the end of 2017 by a larger majority (261-18); and even after President Duterte, during his last State of the Nation Address (Sona), vowed no nationwide ML because he is “not stupid,” some people are still wary of it.

Marcos’ ML. They grimly recall the abuses and excesses of the ML instituted by Ferdinand Marcos in 1972.

They remember how he abruptly closed Congress and clothed himself with dictatorial powers, including lawmaking by presidential decrees and letters of instruction. And how he later forced the adoption of a new constitution in 1973 via an overwhelmed Constitutional Convention and a dubious raising of hands during barangay meetings, instead of a nationwide secret balloting.

On the day he proclaimed ML, Marcos caused the mass arrest and indefinite detention of his political enemies, the closure of newspapers, TV and radio networks (later allowing the operation only of those singing hosannas to his regime), and the deprivation of the rights to life, liberty and property without due process. Even the right to travel was restricted. Only a few favored ones were given “travel permits” to go abroad with a maximum of $200 for hotel and other expenses.

Mass actions, demonstrations and other forms of free speech were banned. Arrests and searches were indiscriminately conducted without judicial warrants. Judges were intimidated, defanged, or otherwise replaced with cronies and subalterns.

Duterte’s ML. In contrast, none of those has happened after President Duterte imposed martial rule and suspended the privilege of the writ of habeas corpus in Mindanao.

Congress, the local legislative assemblies and the courts are freely functioning. Even the local government unit in Marawi is open. No TV or radio station or newspaper has been forcibly closed.

No mass arrest and detention of political enemies has happened. The right to travel remains inviolable, except for Marawi residents who were forced to flee their homes due to the fierce fighting, not due to ML.

“[M]artial law does not suspend … the Constitution, neither does it supplant the operation of civil courts or legislative assemblies. Moreover … the Bill of Rights remain[s] in place … [and the suspension of the privilege] applies only to those judicially charged with rebellion” or invasion. (Lagman vs Medialdea, July 4, 2017)

Clearly, ML is not evil per se. If it were so, the 1987 Constitution should have abolished it instead of just restricting it. Indeed, it is a constitutional weapon against rebellion and invasion, when public safety requires its use.

Victory for Constitution. In a larger sense, what has happened and is still happening is a victory of our 1987 Constitution. It successfully removed the sting of the Marcos-style ML. Credit should also be given to the administrators of the Duterte–style ML, Defense Secretary Delfin Lorenzana and Armed Forces Chief of Staff Eduardo Año. They are conscious that history will ultimately judge them.

I think President Duterte is well aware of ML’s limitations. He has said more than once that if he wants to be a dictator, ML is no longer the way. To be that, all he needs is “to throw away that piece of paper called the Constitution” and to rely on the raw power of the military and the police. For indeed, when guns speak, laws are silent. Something, I think, he does not wish to happen.

Back to his Sona, the President explained that he turned to ML because it “is the fastest way to end the rebellion in Marawi and Mindanao.” If you ask me, he does not even need ML because, as Solicitor General Jose C. Calida told the Supreme Court, ML is just an “exclamation point.” It does not grant any new power (although the suspension of the privilege does).

But then, Rodrigo Duterte is the President. I am just a humble retired jurist. The discretion on whether to impose ML is solely his, not mine or anyone else’s. When done in accordance with the Constitution, the exercise of his sole discretion must be respected.

Comments to chiefjusticepanganiban@hotmail.com

source:  Philippine Daily Inquirer By: Artemio V. Panganiban

Public Lives: Duterte and the presidency

By now, people who have listened to President Duterte speak in public a couple of times may have learned to focus less on the information he “gives” than on the information he “gives off.” Not so much on the priorities of his administration, as on who the current objects of presidential ire are. Not so much on what he says as how he says it.

Some people can never get used to this style of public speaking. But, not his legion of admirers. They prefer authenticity over substance, and every speech of the President seems to affirm this for them. They like seeing him unbound and unchanged by the trappings of the presidency. To them, it is a comforting sign that he remains the individual that he is, the sole author of his actions — neither the aloof functionary of an anonymous entity called government, nor the tool of a despised oligarchy.

Mr. Duterte plays this role to the hilt. He manifests impatience and awkwardness, and, sometimes, even contempt, for the rituals that have become integral to the office of the President. The State of the Nation Address is a prime example of these rituals. Most presidents do their best to embrace the role assigned to them in these state functions. They try hard to sound and look as though they were not reading from a teleprompter, that they understand and mean every word they speak. Mr. Duterte is different. Indeed, he not only deviates from his prepared speech; he also seems to draw satisfaction from mocking the artifice behind the entire event.

At several points in his second Sona, Mr. Duterte tells the operator of the teleprompter to stop rolling the text because his eyes were getting tired. Prior to this, he is seen dutifully reading the text as though it were something he wanted to quickly get done with. With the official text in suspension, he pauses, takes a deep breath, and squarely faces his audience. Then, like the common folk who identify with him, he proceeds to “speak from the heart.”  As though on cue, the audience sits up to listen intently to the authentic voice of the man who occupies the highest office of the land.

This is the magic behind Mr. Duterte’s speaking style. Although he often speaks in a kind of drone, he is never boring. And, it is not merely because of his colorful language; it is also because of the unrestrained and raw quality of his casual speech.

The image he projects is that of someone who talks with authority not because of the office he occupies but because of the person that he is. The Arcade Dictionary of Word Origins explains the origin of the word “authentic” thus: “Etymologically, something that is authentic is something that has the authority of its original creator.”

Certainly, Mr. Duterte would be interesting to listen to any time. He is folksy, friendly, and funny; he loves to crack outrageous jokes, and never runs out of stories to make a point. His reputation as an endearing thug also precedes him. But, if he were not president, I doubt if he would be able to command the same attention that he does when he addresses the public from the high perch of his office.

The public has always looked up to the office of the President as a source of direction in uncertain times, a beacon for a nation in need of orientation. Perhaps, in a complex society, it no longer serves this purpose for a lot of people, in the same way that politics itself has lost much of the aura that used to shroud it in traditional society.  Nowadays, it is not uncommon to hear people speak of politics and of politicians in purely negative terms.

In many ways, the rise of antiestablishment leaders like President Duterte is symptomatic of these antipolitical times. They represent, to the common folk, the antithesis of the polished statesman, the technocrat, and the professional politician. Thrust into the nerve center of the state by the same electoral exercise they distrust, such leaders invariably find themselves hemmed in by the sheer power of the formative routines of the modern political system.

Their charisma and their willfulness notwithstanding, they soon realize they have no choice but to bow to the authority of the systems in place if they are to get anything done.  Much as they wish to skirt them, they could not ignore the existing hierarchies of decision-making and accountability to which officials in the lower echelons of government are in thrall. At every turn, leaders like Mr. Duterte are reminded of the imperatives of due process, of the rule of law, of the inviolability of the principle of separation of powers, of the autonomy of constitutional bodies, and the sanctity of contracts, etc.  They have so much power over the lives of their citizens, but they soon discover that the economy is not under their command, nor are the educational, religious, and communication systems of society.

I think that if we want to know where the Duterte administration is headed, we would learn more from carefully scrutinizing the text and subtext of the written Sona (portions of which the President skipped) and the proposed national budget that accompanies it, than from attempting to decipher the deep impulses behind Mr. Duterte’s fulminations.

Like every politician before him, President Duterte has promised radical change under his administration. His fiery rhetoric conveys this in no uncertain terms. But, I think, unless they are specifically named, those whose fortunes are massively affected by the twists and turns of government policy might learn to listen to these off-the-cuff presidential speeches more for amusement than for policy guidance. Having said that, I cannot presume to know how these speeches shape the consciousness of the ordinary folk.

source:  Philippine Daily Inquirer By: Randy David public.lives@gmail.com