Very Afraid

Since the word came out that Miriam might be Chief Justice, people have been asking if that is at all possible.  In a word: Yes.

There is no rule or law that limits the choice of Chief Justice to those who are already on the Court.  The appointment of the Chief Justice from among the incumbents is tradition but not law.  So too is the appointment of the most Senior Associate Justice to succeed the Chief Justice; this was notably not followed by Marcos when he bypassed former Chief Justice Claudio Teehankee twice.  

In the United States, Chief Justice Earl Warren was appointed directly as Chief Justice without sitting on the Bench;  so too the current Chief Justice of the United States Supreme Court John Roberts.

Perhaps the question about Miriam in relation to the prospect of being Chief Justice is not whether it is possible but how probable it is.  Again, in a word:  Quite.  Probable, that is.

The last question that should be asked about Miriam being Chief Justice is, “should we be afraid? “ In a word:  No.  We should be VERY AFRAID.

A Win?

It’s not exactly a win; in fact the dispositive portion of the Decision says all the Petitions are granted only in part and dismissed as to all other respects.  But at least something came out of it.

I’m referring to the Supreme Court’s Decision in the  CPR case, which I argued before the Supreme Court En Banc on April 4, promulgated yesterday.

The Court upheld the law, Batas Pambansa Blg. 880, which is Marcos vintage, but struck down the press release, i.e., CPR.  For me, it was a foregone conclusion that CPR would be struck down but I was more interested in striking down Batas Pambansa Blg. 880.  Unfortunately the Court did not see it my way.

What is interesting about the CPR Decision is this part:

“In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly.  In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity.  He said that “in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak.  Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity.  These laws and actions are subjected to heightened scrutiny.”

For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom.  It merely confuses our people and is used by some police agents to justify abuses.  On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies.  Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government.  The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880.  If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein.  The only requirement will be written notices to the police and the mayor’s office to allow proper coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law.  Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance.  The petitions are DISMISSED in all other respects, and the CONSTITUTIONALITY of Batas Pambansa No. 880 is SUSTAINED.”

What the Court essentially ordered is that all local governments all over the country must designate freedom parks within 30 days, otherwise the “no permit, no rally” provision in the law, sec. 4, becomes inoperative.  Essentially, the right to freedom of assembly has become subject to a “resolutory” condition of sorts.

That’s why it’s a weird decision, from where I sit.  

Also, the Court said the law was not vague nor overbroad and that it was not a content-based restriction to freedom of assembly and expression.  Of course, I disagreed with this in my Memorandum to the Court but, hey, you lose some and then you lose some more.

It’s the latest thing nowadays—a “win-win” formula for cases of transcendental public importance; for example the recent EO 464 case.  I’m not sure I like this trend of decision-making of the Court right now—I’d rather lose and know why I lost rather than  lose and not be able to figure out why I lost, which is what these “win-win” cases actually are not able to tell me.

In the meantime, the CPR Decision, particularly that part on Freedom Parks, is going to raise more questions than answers, particularly for May 1—where rallies are traditional and expected.  I would not be exaggerating if I say that this won’t be the last we will hear of BP 880 being challenged in the Court;  hopefully,  the next time the Court sees the light.




     

Orals

The Resolution reads, in part:

“For PETITIONERS, Atty. Theodore Te will argue for a maximum of twenty five (25) minutes and he will decide on how to share his time with the other counsel/s for petitioners.”

Its not my first oral argument before the Supreme Court En Banc—its my fifth (previously on the Death Penalty [People v. Malabago], Oil Deregulation [Edcel Lagman, Joker Arroyo et al. v. Executive Secretary], Visiting Forces Agreement [Jovito Salonga, Wigberto R. Tanada, et al. v. Executive Secretary, Electricity rates [Freedom from Debt Coalition et al. v. ERC and MERALCO]) but the thrill—and the anxiety—is still there.  

Today, the Court set orals for the Calibrated Pre-emptive Response (CPR) issue (Del Prado et al. v. Ermita et al.) and at 1 pm, I will stand before the 15-member Court and once again start with that over-used opening, “May it please this Court. . .”

I’ve been preparing for this for what seems like ages and to speak only for 25 minutes.  In an oral argument, however, 25 minutes is like the last two minutes of a basketball game—it can last for hours.  In the  Meralco orals, I started at 10 in the morning with my presentation and ended my presentation at  4 in the afternoon straight (without lunchbreak, coffeebreak or bathroom break);  the orals for that case ended eventually at 9 in the evening.

I pray not only for wisdom, guidance, inspiration but also that I won’t need a bathroom break for hours.

Rising higher than the source

Ever since I started teaching law (in 96), this time of year has always been special.  It’s the time of the year that the Bar results come out.

For the civilians (read: non-lawyers) out there, this is going be totally difficult to understand because you just have to experience it to know what I am talking about.  The Bar, that is, and the seemingly interminable wait for the results.

When the results of my bar exams came out, I and a classmate (now my law partner) were outside the Supreme Court well into the early hours of the April morning;  we had commandeered a public pay phone and, with the help of classmates and batchmates inside the Court, were listing as many names of classmates and batchmates we could remember.  I remember whooping out loud when I finally heard that my name was on the list (because of my initials, my name would appear on the last few pages).  And suddenly, the four years of studying suddenly took on some meaning.

Now that I am teaching law, this time of year takes on special significance—it’s the time of the year that I remember those whom I’ve taught and are now officially members of the legal profession.  As I was scanning the list on the net earlier this morning, I started conjuring up faces and even seating positions in the various classes they took under me.  Funny (for me) and tragic (for them) moments of inane recitation came back unbidden—sometimes, I even remember what I said as riposte to particular gems of “how not to recite in law school.”

I remember all of these even as I hope that they will become better lawyers than I am for otherwise, all I did then was to mold mediocrity.  Unlike the saying, I believe that the stream must rise higher than its source for it is only then that there can be change, for the better.

The Bar is a rite of passage, of sorts.  But now the real test starts:  you join a profession that is far from perfect and far from noble, you will soon be among the ranks of men and women who, in their all too human moments , will succumb to the temptation to use the law for reasons other than to do justice and to transform society and its inhabitants. Your passage from onlooker and bystander to actor and participant in the stage of Philippine life and society is at hand.   The choice is always yours.

May you make a choice to make this far from perfect and far from noble profession one that will truly live up to its calling to do justice to every person and to transform society.

Until then, congratulations Batch 2005!  See you in court!

Short memories

What we are seeing now is the clearest sign that in any upheaval, to the victor go the spoils.

When Gloria launched her own coup d’etat against Erap in 2001, she had her own left and right “tactical alliance”—this much is already part of history.  Dinky Soliman, the first member of her cabinet to be announced, was most probably already thinking up and doing the many gimmicks she is doing now, as part of the so-called “civil society.”  When her coup d’etat succeeded, the criminals took over government.

In law, there is a theory of non-liability that is premised on the existence of a crime but no criminal;  it is called an exempting circumstance.  In a coup d’etat, it appears that success is an exempting circumstance;  for certainly, no one will prosecute the successful coup stagers as they would have taken over the government already.  There is a crime but no criminal—well, at least none that can be prosecuted, during their tenure.

Gloria should remember her history and she should stop being so hypocritical, if this is not a genetic trait on her part (if it is, then she should try very hard to not be so hypocritical).  The left and right tactical alliance she is decrying now is taken from her own playbook.

Those who do not remember the lessons of history are doomed to repeat them.  

     

Good man gone

His “resignation” letter gave the end date as “April 1, 2006 or until my replacement is appointed, whichever is earlier.”  Thus ended the public life of Solicitor General Alfredo Benipayo, Tribune of the People.

He is a good man in a rotten government; a good lawyer in a lawless reign.  

Thrust into the thankless defense of an indefensible government and an illegitimate ruler, this good man became the public face of a government that deserved to be publicly humiliated.  Before his peers in a Court he had served long and faithfully, the Tribune of the People simply could not provide the reasons for something that was totally beyond reason.  And when that public humiliation did come—within the halls of the Court and in the bar of public opinion—it was all he could do to put a brave smile on his face and pretend that nothing was wrong.

Yet, it is in the character of the man who would not simply allow that brave smile and feeble pretense to be his legacy.

That he “resigned” yesterday, pending the submission of a Memorandum that would rationalize the dictator’s rule, betrayed the turmoil behind that brave smile.  That an “equal” in the Secretary of Justice (I use this loosely in relation to the current Secretary of Justice because he is far from being Benipayo’s equal--in erudition, in integrity, in character) would “accept” or even “demand” his resignation is the unkindest cut of all.

Someday, perhaps, when there is no longer a reason for that  brave smile and the feeble pretense, Benipayo may tell us the reasons why he would abandon the dictator at the most crucial point in its legal battle for legitimacy.  As he belts Sinatra and Bennett, one day, Benipayo may tell us what everyone now “knows”—that he was fired because he could not defend the indefensible and could not legitimize the illegitimate.  

In the meantime, the Tribune of the People is gone;  long may he live!  

Going beyond mootness

Now that the dictator’s decree is lifted, is it over?  Not by a long shot.

Things are not back to normal—media is still chilled, despite their denials;  censorship by the police will still continue; warrantless arrests and the threat thereof will still continue;  E.O. 464 is still in effect; CPR is still in force.

The Filipino people have said, “Never Again!”  It’s time the Supreme Court says it too.

I urge the Supreme Court not to hide behind the seeming mootness of the petitions challenging 1017 and to decide them on the merits.  Do not dismiss them simply because they are moot—in that way, you will legitimize a dictator.  Instead, use the power of the pen—be once again the “conscience of government”—and say to the dictator and anyone else who would follow after her:  “never again.”

Certainly, the Supreme Court cannot—and must not--turn a blind eye on the assault on truth, the attack on press freedom.  So, hide not behind mootness, rule instead that Proclamation 1017 and General Order No. 5 are patently unconstitutional.  In Salonga v. Cruz Pano and Evelio Javier v. COMELEC, the Supreme Court ruled despite mootness.  

So I say to the Supreme Court:  decide in favor of democracy, not dictatorship.  Say in one voice, with the people, “never again!”  Do not hold your peace, speak out now.

You can't do that

Gloria Arroyo effectively declared martial law without calling it such under Proclamation No. 1017 today.She just declared a “state of  emergency” (see Constitution, art. XII, sec. 17 which deals with national emergency that confers extraordinary economic powers on the Chief Executive), which does not entitle her to call out the armed forces (art. VII, sec. 18).  Yet, I just heard her do exactly that—by leaving it to the military and police to take care of things.As they say in Nickleodeon, “you can’t do that.”

"I read the news today, oh boy"

Woke up to news of arrests of military men supposedly involved in a coup attempt.  A few hours after, Gloria’s Chief of Staff Mike Defensor would announce that arrests of military men and civilians would be made;  he also announced that Gloria would make an announcement in a few minutes (30 minutes ago, as of this writing).  Many are speculating that Gloria will declare a state of rebellion, a state of emergency or even martial law.

Here’s what the Constitution provides on martial law:

     Article VII, sec. 18.  The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.  In case of invasion or rebellion.  In case of invasion or rebellion, when the public safety requires it, he may, for a period  not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.  Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.  The Congress, voting jointly,* by a vote of  at least a  majority of all its members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.  Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

     The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

     The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

     A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

     The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

     During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.


On the other hand, here’s what the Constitution provides on state of emergency:

     Article XII, sec. 17.  In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

     Article XII, sec. 18.  The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.

Given that the military has already announced that what supposedly transpired this morning was a coup attempt, it is highly unlikely that Gloria would declare only a state of emergency as the powers that would be conferred by such a declaration would be only economic in nature.  It becomes more probable that a state of rebellion or a proclamation of martial law would be declared.

The Great Escape

Two of my clients escaped last week.  Apparently, they were helped by their fellow officers. I won’t dwell on the legalities and technicalities but on the experience of having someone who has trusted you with their lives escape before their cases can be terminated.

I went to the taping of Debate last week and met a particularly repulsive Congressman (I would have wanted to say, “is there any other kind?”  but my friends Erin Tanada and Risa Hontiveros-Baraquel are members of Congress and they’re not repulsive and among the nicest persons you will ever meet) who greeted me by asking, “aren’t you offended that your clients escaped, that means they don’t trust you?  You should feel betrayed.”

Because he is particularly repulsive, I actually just smiled and said nothing;  but on-air, Winnie Monsod also asked me practically the same question.

That got me thinking.

After having witnessed two of my clients killed before my very eyes, I’ve now experienced something new again—to have two clients escape.

Honestly, I don’t know what to think.

Blind and toothless

“An eye for an eye and a tooth for a tooth will leave the world blind and toothless.”  
                                                                           -  Tevye, Fiddler on the Roof

For once, I agree with Raul Gonzales—arming judges will not stop the killing of judges.

It is difficult to agree with the utterly illogical statement of Chief Justice Artemio Panganiban reminding judges that they can arm themselves.  This, in the wake of the killing of Judge Henrick Gingoyon, a former FLAG lawyer from cebu who had to relocate to Manila after his and his family’s safety and security were threatened by the military for his uncompromising stand against human rights abuses.

Giving a judge a gun is not the answer to the violence that sweeps the country now.   That it is the Chief Justice of the Philippines saying this bodes ill for all of us.

Neither is the reimposition of the death penalty the solution.  The il-logic behind this is that had the State continued to execute people, Henrick Gingoyon would still be alive today.  The il-logic behind this is that had the State continued to kill people after January 4, 2000, many of the victims of rape, kidnapping, drugs, murders would not have been victimized.  

Really?

When Leo Echegaray was executed on February 5, 1999 and Bobby Andan on October 26, 1999,  crime did not grind to a halt thereafter.  After the last execution (so far) on  January 4, 2000, crime was not wiped off the face of the Philippines (I write this on the 6th year since the de facto moratorium the Philippines has imposed on executions.

The death penalty is not a silver bullet for criminality.  Neither is arming judges a wonder pill for violence against judges.

What we will be doing, if we join the rabble for more guns and for more death, is consign each of us—our generation and the generations to come—to the mindless, heartless, hopeless cycle of violence and insanity that we are in.    We will be creating what Tevye prophesied—a country that is blind and toothless.

Deeply offended

I blogged about this a few weeks back—the supposed three-way race for Chief Justice.  Now, it has come to pass.  The race really was a rout.  The front-runner had no chance—none at all because Gloria Arroyo is starting to show her true colors:  Marcosian.

I have also said this before, she is worse than Marcos and  this shows it.

This might get me into a lot of trouble because:  1.  I am a lawyer with cases pending before the Supreme Court and I am blogging about Gloria Arroyo’s choice for Chief Justice of the Philippines;  2.  I have nothing against Justice Panganiban (I have some of his books because he sends them to me;  apparently, I am on his mailing list);  3.  I am subject to the discipline of the Supreme Court;  and 4.  I have friends on Justice Panganiban’s chambers, who might feel bad about  my blogging about their boss  in this way.

Because lawyering is the only way I know how to put butter  on my bread,  I will say this:  this is not about Justice Panganiban, this is about Gloria Arroyo and the damage she has inflicted on the court and the judicial system because of her senseless and totally trapo (shorthand for “traditional politician” but also very aptly vernacular for “dirty rag”, good only for throwing away) “revolving door” policy.  

But because lawyering is also the only way I know how to serve, I will say this:  this is also about the Court and the way it’s independence will be determined in the future.  

I write about this not because I do not like Justice Panganiban (I have no basis to “not like him” as I do not know him that well personally) or because I do not like Gloria Arroyo but because I am a member of the Bar, an officer of the Court, and a Filipino.  And I am offended, deeply offended, that Gloria Arroyo would insult everyone by foisting this appointment on us.

I stated before that I am not a rabid fan of Mr. Justice Puno but I do admire his judicial philosophy.  We are, if I may be so bold to claim, kindred spirits in espousing greater protection for civil rights and human freedoms.  Often, his pen--wielded mightily and consistently--and wit-- manifesting itself very often acerbically--have cut through layers of government-sponsored balderdash to expose and lay bare to the people what is most important to them:  the truth.  I often do not agree with his decisions but I have yet to find occasion to disrespect him.  Of the three who were in the “race”, he was, in my opinion, the best qualified—coincidentally also, the most senior.

What offends me about Gloria Arroyo’s appointment of Justice Panganiban as Chief Justice of the Philippines is that she cheapens the Judiciary by making the highest post open to the simple expediency of accommodation.  What offends me about Gloria Arroyo’s appointment of Justice Panganiban as Chief Justice of the Philippines is that she would choose not the best qualified and also the most  senior but that she would choose based on a policy of appeasement.  What offends me about this appointment is not that Justice Panganiban was chosen over Justice Puno but that Gloria Arroyo thinks that the rule of law should be made subject to a simplistic and “simpletonic” (my own word;  don’t bother looking it up) policy of “giving everyone a chance.”

The direction of the Supreme Court and the Judicial Branch should be determined by a vision, not by political accommodation and expediency.  It should be charted by someone who has a clear grasp of where the Court should go and how it should get there;  it should be led by one who has a firm and long view of how law may help change and shape society.  

It should not be charted by one who is, effective from the date of his appointment, a lame duck.  This, unfortunately, is the situation that Gloria Arroyo has placed Justice Panganiban in.  By not putting a premium on seniority as well as vision but instead stressing accommodation and by highlighting that Justice Puno would still have another chance to be Chief Justice when Justice Panganiban retires in 2006, Gloria Arroyo has put a lame duck in the Supreme Court.  Starting today, everyone knows the clock is ticking and that Justice Panganiban is a seat warmer--that is an insult Justice Panganiban does not deserve, that is an insult the Court does not deserve, that is another offense by Gloria Arroyo against the Filipino people for which she should not be forgiven.

I have been a lawyer for 15 years and a law professor for almost 10 and I love the law and the rule of law.  Thus, Gloria Arroyo’s insult, I take personally.  She is singlehandedly destroying all the democratic institutions that generations of martyrs had shed blood for.  There are no two ways about it:   she must go.

I end this blog entry with my Congratulations to Mr. Justice, now Chief Justice, Panganiban.  May his one year as Chief Justice be fruitful and may he strive mightily, with God’s help, to do what is right, not only what is popular or what is expected of him by Gloria Arroyo.  May he, in his one year as Chief Justice, rise above the unfair label that Gloria Arroyo has pinned on him and prove me—and all the others who believe Justice Puno should have gotten the appointment—wrong.  I would be the happiest Filipino in one year’s time should this happen.

In the meantime, sic Gloria transit mundi;  this too, will pass.  So will Gloria Arroyo.

Retroactive 5.0 for Miriam in Evidence

As one who has been teaching Evidence for some time, I am ashamed of myself.  

I must apologize to all my students, present and past, for failing to tell them that triple hearsay is not only admissible but is also impressed with high probative weight.  I must confess that since I never had the “brilliant” Miriam Defensor-Santiago as my professor for Evidence, I really missed that particular legal principle.  I feel that I must commit the academic equivalent of hara kiri by turning in my teaching license, as it were, and make a public apology to all my students, present and past, for misleading them.

Hah, she wishes.

Miriam is the one who is a monumental embarrassment to the name of U.P. and particularly the College of Law.   She’s not even funny anymore—even when she goes from her “lucid intervals” to her “normal state”—she’s tiresome and tiring; a total waste of taxpayer’s money.  

She should be given a retroactive 5.0 for Evidence and her diploma as a UP graduate should be withdrawn.

A gag order by any other name . . .

MALACAÑANG

Manila

BY THE PRESIDENT OF THE PHILIPPINES

EXECUTIVE ORDER NO. 464

ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF POWER, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE COSTITUTION, AND FOR OTHER PURPOSES

WHEREAS, the Constitution guarantees the separation of powers of the Executive, Legislative and Judicial branches of the government;

WHEREAS, Article VI, Section 22 of the Constitution provides that heads of departments may, with the prior consent of the President, appear before and be heard by either House of Congress on any matter pertaining to their departments and, when the security of the State or the public interest so requires and the president so states in writing, such appearance shall be conducted in executive session;

WHEREAS, pursuant to the rule of executive privilege, the President and those who assist her must be free to explore alternatives in the process of shaping policies and making decisions since this is fundamental to the operation of the government and is rooted in the separation of powers under the Constitution;

WHEREAS, Article VI, Section 21 of the Constitution mandates that the rights of persons appearing in or affected by inquiries in aid of legislation by the Senate or House of Representatives shall be respected;

WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of persons appearing in such inquiries in aid of legislation and due regard to constitutional mandate;

WHEREAS, there is a need to prevent such inquiries in aid of legislation from being used for partisan political purposes, disrupting diplomatic relations with foreign governments, and weakening the stability of the State, thereby impeding the efforts of the government to generate and attract foreign investments;

WHEREAS, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that public officials and employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest;

WHEREAS, Article 229 of the Revised Penal Code prohibits any public officer from revealing any secret known to him by reason of his official capacity or wrongfully delivering papers or copies thereof which he may have charge and which should not be published;

WHEREAS, the 1987 Constitution and the Administrative Code of 1987 provide that the President shall have control of all government departments, bureaus and offices and shall ensure that all the laws be faithfully executed.

NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of the Republic of the Philippines, by the powers vested I me by law, do hereby order:

Section 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions o separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

Section 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. – The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separations of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that public officials and employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the public officials covered by this executive order (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez vs. Public Estates Authority, G.R. No. 133250, 9 July 2002);
2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
4. Matters affecting national security and public order (Chavez vs. Public Estates Authority, G.R. No. 133250, 9 July 2002).
   

(b) Who are covered. - The following are covered by this executive order:

1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
2. Generals ad flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
3. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.

Section 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.

Section 4. Repealing Clause. – All executive issuances, orders, rules and regulations or parts thereof inconsistent with the provisions of this Executive Order are hereby repealed or modified accordingly.

Section 5. Separability Clause. – If any section or provision of this executive order shall be declared unconstitutional or invalid, the other sections or provisions not affected thereby shall remain in full force and effect.

Section 6. Effectivity. – This Executive Order shall take effect immediately.

DONE in the City of Manila, this 28th day of September in the Year of our Lord, Two Thousand and Five.

(Signed) GLORIA MACAPAGAL-ARROYO

By the President:

(Signed)
EDUARDO R. ERMITA
Executive Secretary

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You may ask, why should I care--I'm not a member of Congress. You are a particle of sovereignty though--and, for this reason alone, you should care.

Tyrants creep in when apathy reigns. The greatest danger we face isn't from Gloria, it's from our own apathy, indifference, disillusionment and cynicism. Care enough to find out what's really going on, care enough to think about it, form an opinion about it and care enough to take a stand and defend it. That, and God's grace, is what is going to save this beautiful but benighted country.

Slaying Kingsfield

(A sort-of welcome for the entering class at Malcolm Hall, 2000)

Each of you has come to law school, fueled by the desire to become a lawyer. Most of you have been inspired by role models, culled from your own experiences. Perhaps your parents or relatives who are lawyers; or actual experience with real lawyers in actual cases; or perhaps from conversations with graduates of the U.P. College of Law; or even from fictional role models taken from such diverse fare as The Practice, Ally McBeal, John Grisham’s books or the real-life stories of the lives of Clarence Darrow or Oliver Wendell Holmes. Whatever or whoever has been your inspiration for taking this most important step in your young lives, you are now faced with one reality: you are now officially in law school; and one question: what do I do next?

The answer to that question may be answered by a scene from the prototypical film about law school, The Paper Chase (1973). This scene demonstrates how it is to study law.

In this scene, the antagonist of the film, the despotic Professor in Contracts, Mr. Kingsfield, is concluding his exercise of humiliating the law students in his class; on deck is the hero of the film, Mr. Hart, a first year law student at Harvard, who has failed to answer his questions. In a dull, flat monotone dripping with sarcasm, Kingsfield intones, “Mr. Hart, here is a penny, call your mother and tell her that her son will not become a lawyer.” Hart, who was just about to bolt the room and quit law school after being humiliated so publicly by Kingsfield, turns around, stares Kingsfield in the eye, and, in emphatic and plain language, tells Kingsfield, “You, Kingsfield, are a son of a bitch.” In the stunned silence that follows, Kingsfield very calmly tells Hart, “That, Mr. Hart, is the most intelligent thing you have ever said in this class. Sit down.”

During your first weeks in law school, you will find yourself, like the hapless Hart, confronting Kingsfield, in various guises, shapes and sizes. The challenge for you is to overcome your own Kingsfields for unless you do so, then you will just have to tell your father or mother that you will not become a lawyer. This early in your life as a law student, when you have yet to open your first case report or law book, you must ask yourself if, like Hart, you have–or are capable of obtaining–the values, skills, traits and character to slay the Kingsfields you will meet in law school. (Hart’s emphatic language to Kingsfield is not encouraged though, for all that it will most certainly get you are either : [1] a 5.0, [2] kicked out of the class and law school, [3] sued for libel and defamation or [4] possibly all three, in that order). Slaying your own Kingsfields will be the first skill you need to survive law school and become a lawyer.

To slay your own Kingsfields and become a lawyer will demand of you a great deal of sacrifice, commitment, skill and character; there is a need for a genuine self-appraisal on your part. It is easiest to judge others but most difficult to evaluate oneself. To help you in your self-appraisal, before you meet your Kingsfields, draw from the thoughts of one of the foremost criminal lawyers of his time, the late Senator Jose W. Diokno, the beloved Ka Pepe.

Answering Popoy, his eldest son who asked him whether he (Popoy) should study law, Ka Pepe wrote a deeply insightful, compelling, descriptive, and very moving letter; in his letter, he bares to Popoy his unique insights on what a lawyer is, how it is to study law and what kind of person you have to be or may have to become in order to be a great lawyer. It is an eloquent and inspiring testimonial to one man’s love for country, people, profession and family written in detention during the darkest days of martial law.

Allow me to share his letter with you:

Dear Popoy,

When you asked me about a month ago, for a list of books that you could read to start studying law, I was loathe to prepare the list because I felt that you would be wasting your time studying law in this “new society.”

I am still not sure that it would be worth your while to do so.

A few days ago, while chatting with a soldier, he asked, in all seriousness and sincerity, “Pero sir, kailangan pa ba ang mga abogado ngayon?” And in a way that perhaps he did not intend, he raised a perfectly valid question.

A lawyer lives in and by the law; and there is no law when society is ruled, not by reason, but by will–worse, by the will of one man.

A lawyer strives for justice; and there is no justice when men and women are imprisoned not only without guilt, but without trial.

A lawyer must work in freedom; and there is no freedom when conformity is extracted by fear and criticism silenced by force.

A lawyer builds on facts. He must seek truth; and there is no truth when facts are suppressed, news is manipulated and charges are fabricated.

Worse, when the Constitution is invoked to justify outrages against freedom, truth and justice, when democracy is destroyed under the pretext of saving it, law is not only denied–it is perverted.

And what need do our people have for men and women who would practice perversion?

Yet the truth remains true that never have our people had greater need than today for great lawyers, and for young men and women determined to be great lawyers.

Great lawyers–not brilliant lawyers. A scoundrel may be, and often is, brilliant; and the greater the scoundrel, the more brilliant the lawyer. But only a good man can become a great lawyer: for only a man who understands the weaknesses of men because he has conquered them in himself; who has the courage to pursue his ideals though he knows them to be unattainable; who tempers his conviction with respect for those of others because he realizes he may be mistaken; who deals honorably and fairly with all, because to do otherwise would diminish him as well as them–only such a man would so command respect that he could persuade and need never resort to force. Only such a man could become a great lawyer. Otherwise, “what you are speaks so loudly, cannot hear what you say.”

For men and women of this kind, our country will always have need–and now more than ever. True, there is little that men of goodwill can do now to end the madness that holds our nation in its grip. But we can,even now, scrutinize our past; try to pinpoint where we went wrong; determine what led to this madness and what nurtured it; and how, when it ends, we can make sure that it need never happen again.

For this madness must end–if not in my lifetime, at least in yours. We Filipinos are proverbially patient, but we are also infinitely tough and ingeniously resourceful. Our entire history as a people has been a quest for freedom and dignity; and we will not be denied our dreams.

So this madness will end; the rule of force will yield to the rule of law. Then the country will need its great lawyers, its great engineers,its great economists and managers, the best of its men and women to clear the shambles and restore the foundations of that noble and truly Filipino society for which our forefathers fought, bled and died.

So, there are two sides to the question of whether it is worth your while to study law; and, in the end, it is a question that only you can answer.

Just be sure, that, whatever be your decision, it is truly yours, that it is truly what you want, not a choice dictated by a sense of duty to follow in my footsteps.

To help you decide, I suggest that you read:

(a) The Attorney’s Oath, Form No, 28 appended to our Rules of Court; and the duties of an attorney, Rule 138, sec. 20 of the Rules of Court, which you can ask from my office;
(b) “The Five Functions of a Lawyer” in Arthur T. Vandervilt’s “Cases and Materials on Modern Procedure.”
(c) “The Chicago Lawyer’s Pledge” on p. 395, and “The Crafts of Law Re-valued” on pp. 316-322 of Karl Llewellyn’s “Jurisprudence.”
(d) “The Lawyer from Antiquity to Modern Times” by Roscoe Pound.
(e) “Men of Law” by William Seagle.

These should give you an idea of what a lawyer should be and what he has been in the past. What he is in our country, you have an idea;

(f) Martin Mayer’s “The Lawyers”, tells you what he is in the United States; and
(g) Brian Abel-Smith’s “Lawyers and Courts”, what he is in England.

Read either and compare with our practice. And for a critique of lawyers, of courts, and even of law, read,

(h) “Law against the People,” by Robert Lefcourt.

As you read, cultivate the habit I have never been able to school myself to do of taking notes of your reading–not only of the gist of what the author says, or quotations of thoughts he felicitously expresses, but also of your reactions to his work (where you agree or disagree or suspend judgment, and why) and of the thoughts he arouses in you. File your notes in orderly fashion. They will become invaluable to you as you mature.

After you have read enough to give you an idea of what a lawyer is and does, but before you firmly commit yourself, one way or the other, discuss the matter with your wife and your friends, always bearing these things in mind:

– That the law is a demanding profession, exacting a constant and unswerving devotion that is always a thinking obedience to its ideals, and that is much harder to give than blind obedience;

– That the rewards of the law as a profession are not in wealth or even in fame, but in the respect of your peers, in the excitement of the chase after justice, and in the satisfaction not only of service to your clients but of having somehow shaped the future by molding the law of today.

This has been a long letter on a short question–whether to study law–and is not an example to be emulated should you decide in favor of law. My excuse is that time lies heavy on my hands in these days of detention, and since we can talk only in snatches when you visit, I have written at length in the hope of anticipating some of your questions.

You may suspect that, by stressing the difficulties of the law profession and by suggesting that you read some eight books before making up your mind, I am trying to discourage you from studying law. I am not. In a rather heavy-handed way, I am trying to paint the lawyer’s role as accurately as I can and show you that, if you do decide to become a lawyer, you must prepare yourself for a lifetime of study,reading, weighing and deciding, while at the same time acting and doing. It sounds impossible–but every day it has been and is being done.

I have loved the law; and I have always been proud of being a lawyer. But I have never been prouder than the day, five Sundays ago, that you told me that you wanted to study law. Regardless of what you may finally decide, the fact that you even thought of becoming a lawyer, despite my arrest and detention, allows me to hope that I have not failed as a lawyer and as a father.

For that, son, thanks.

Your father,

PEPE

This was written in detention by Sen. Jose W. Diokno to his eldest son, Jose Ramon I. Diokno on 23 October 1972 almost one month after martial law was declared in the country.

Ka Pepe spoke of several things in his letter to Popoy that may prove valuable to your stay in the college of law.

First, he tells his son that “there are two sides to the question of whether it is worth your while to study law; and, in the end, it is a question that only you can answer. Just be sure, that, whatever be your decision, it is truly yours, that it is truly what you want, not a choice dictated by a sense of duty to follow in my footsteps.” This is especially important for those of you, in this room, who are here simply because you feel that it is your duty to continue a family tradition of producing lawyers. The study of law is such an exacting discipline that coming into the College half-heartedly will most certainly ensure that you will eventually leave the College without a degree. As he reminds Popoy in another part of his letter, “the law is a demanding profession, exacting a constant and unswerving devotion that is always a thinking obedience to its ideals, and that is much harder to give than blind obedience.” You have made a decision to study law; in order for you to succeed, you must ensure that it is a decision that is completely yours. Anything less than that will mean that you may not gather enough resolve to slay Kingsfield and will simply phone home to tell your parents that their son or daughter will not become a lawyer.

Second, Ka Pepe tells us what kind of a person would make a great lawyer:

"A scoundrel may be, and often is, brilliant; and the greater the scoundrel,the more brilliant the lawyer. But only a good man can become a great lawyer: for only a man who understands the weaknesses of men because he has conquered them in himself; who has the courage to pursue his ideals though he knows them to be unattainable; who tempers his conviction with respect for those of others because he realizes he may be mistaken; who deals honorably and fairly with all, because to do otherwise would diminish him as well as them–only such a man would so command respect that he could persuade and need never resort to force. Only such a man could become a great lawyer. Otherwise, 'what you are speaks so loudly, I cannot hear what you say.'"

Now that you have made your decision to study law, you must know yourself. Know your weaknesses and your strengths; work on your weaknesses as well as your strengths. Do not forsake or abandon your other interests–your life is not and should not only be the college of law (although, it will certainly feel like that)--read, dance, sing, watch movies, play Tekken, work out, play a sport, climb a rock, join a rally, march to Mendiola, raise your fist in protest, lift your hands in praise, join your hands in prayer. As in everything, there must be a balance in our life. The challenge for you is to try to incorporate all of these things that are integral and important to your life within your new chosen life as a law student. It is these traits and values that you develop from all the varied fields of interest that make you a complete and multi-dimensional person and will ensure that you become a great lawyer.

Third, Ka Pepe speaks of developing very good study habits and being organized. In his words,

"As you read, cultivate the habit . . .of taking notes of your reading–not only of the gist of what the author says, or quotations of thoughts he felicitously expresses, but also of your reactions to his work (where you agree or disagree or suspend judgment, and why) and of the thoughts he arouses in you. File your notes in orderly fashion. They will become invaluable to you as you mature."

Indeed, those who have passed through the portals of the College of Law and those who are still within its portals will tell you that the most important weapon you have in the College of Law is not your raw intelligence (because you are all disputably presumed to have that in abundance or you would not be here listening to me) but how you develop, hone, challenge and transform that intelligence into a discipline of critical, analytical, logical, organized and coherent thought. And without study habits–of any form–all your native intelligence will be for naught. Ka Pepe presents you with a way of studying law which is healthy to cultivate: not only should you read, with a view to reciting the cases or the law verbatim, but you should read with a view to understanding and thinking about what you read.

It is in this context that Ka Pepe speaks of the study and the practice of law as being “demanding”; and, indeed, the discipline is demanding. For it is not enough that you should know the law and practice it well but that you should also know why the law is what it is, how to question the law, if necessary, and to move for changes in the law to make the law what it should be. Thus, your study of the law should not only be rote learning but critical learning. As he reminded Popoy, “the law is a demanding profession, exacting a constant and unswerving devotion that is always a thinking obedience to its ideals, and that is much harder to give than blind obedience.” It takes courage to stand and remain as a majority of one and there will be times when that is what the study of law will ask you to do–to maintain a critical and thinking obedience to its ideals and challenge the law as it is written with the hope it may be transformed into the law that it ought to be.

Finally, Ka Pepe speaks of the rewards of studying law : “the rewards of the law as a profession are not in wealth or even in fame, but in the respect of your peers, in the excitement of the chase after justice, and in the satisfaction not only of service to your clients but of having somehow shaped the future by molding the law of today.” These are not only beautiful words and ideals but are also stirring realities. And, if there is any inspiration that may be drawn from Ka Pepe’s words, it is the knowledge that by studying law, and by studying law in the U.P. College of Law, you will play a part in shaping the future by molding the law of today.

You have entered a public law school–one that is steeped in the highest traditions of excellence in all fields of the law. The U.P. College of Law has produced the finest lawyers engaged in advocacy for various interests, private and public. The College has also produced Presidents of the Philippines (the first President of the Republic was also the President of the first law class; the last President produced by the College was also the first dictator the country has officially produced), Chief Justices (of course, the present Chief Justice is a U.P. graduate), Senate Presidents (the present Senate President is also a U.P. graduate), Speakers of the House; the College has also produced scholars, academics and intellectuals who have contributed directly to the country–for good or worse–through their research and writings; and finally, the College has also produced lawyers for the People who have committed their life to working for the rights of those among our people who are on the shorter end of the stick–the laborers, the urban poor, the peasants and farmers, the indigenous peoples, the poor and defenseless accused; you have but to look at a list of non-governmental organizations and people’s organizations engaged in various advocacies to see a list of U.P. lawyers who have committed their lives to the people.

With this tradition comes a great deal of responsibility. The responsibility is not only to live up to the tradition but to surpass it. There is a saying oft-quoted by the Supreme Court, “the spring cannot rise higher than its source.” I refuse to accept that when it comes to legal education. The spring must rise higher than the source for it is only in doing so that we ensure that the traditions of excellence are not only maintained but surpassed. I do not consider it a failing on my part if my students become better than I; on the contrary, I consider it a source of great fulfilment and unending inspiration that I have contributed to the shaping of the future by molding the lawyers of today.

It was Ka Pepe’s letter–alternately an answer to his son’s question, treatise on the legal profession, discourse on the national situation prevailing at that time, and a showcase of a lifetime of insights on how to study law–that gave a young and idealistic activist, unsure of his decision to pursue law, the first insight that law and activism, law and advocacy, law and social change, law and a lifetime of meaningful service could co-exist. Fourteen years later, that slightly older but still idealistic activist is now a lawyer actively engaged in human rights practice and the teaching of law in what Holmes calls "the grand manner."

In the same manner that his letter challenged me, I would ask you, after hearing Ka Pepe’s letter to Popoy, to ask yourself if you are the person he describes; ask yourself if you want to become the lawyer he describes; ask yourself if you are capable of becoming the lawyer and the person he describes.

If, after asking yourself all these, you decide that you are not the person he describes: Good luck and Godspeed then, in whatever you may decide to do with your life.

But if, after reading his letter, you decide to continue with law school and bid to slay your own Kingsfields, then, WELCOME TO THE U.P. COLLEGE OF LAW, MR./MS. HART !