Ingratitude. In Gratitude.

Note: Not for the faint of heart, this contains strong language.

After 30 or so years of service, many people retire with gold watches, a plaque, honor and acclaim of peers; the luckier ones retire with a hefty check.

Salvador T. Carlota, Dean of Malcolm Hall from 2005 and Professor of Law, will retire on his birthday this December not with a gold watch, not with a plaque, not with a hefty check but with a heart broken by betrayal and ingratitude.

A few days back, the following members of the Law Faculty posted publicly a statement demanding that Dean Carlota not be allowed any extension of his term beyond his birthday--

Harry Roque
Florin Hilbay
Elizabeth Pangalangan
Raul Pangalangan
Merlin Magallona
Bartolome Carale
Domingo Disini
JJ Disini
Barry Gutierrez
Danilo Concepcion

Never mind that two of these are retired former deans who should know how it is to cap one’s service to the University and the College enjoying the gratitude of peers and colleagues.

Never mind that one of them is a former Dean who, on the first day of Dean Carlota’s term in 2005, assured the Dean that he would not object to a full term of three years for him, even beyond his birthday (a statement that this former Dean has denied, of course).

Never mind that one of them is a recently retired professor who practically begged for an extension so that he could hold on to his administrative post, and which Dean Carlota graciously granted and even expedited—no questions asked.

Never mind that another is a recently retired professor who also had his term extended by Dean Carlota--no questions asked either.

Never mind that the others are absentee directors who spend more time outside the University and their institutes than inside.

Never mind that not one of them can give a perfectly reasonable, let alone compelling, explanation why Dean Carlota has to leave as soon as he turns 65 and not stay one day longer.

Never mind that not one of them can give a perfectly reasonable answer to the equally reasonable question--"why the rush?"

Never mind that after more than 30 years of service to the U.P. and the College of Law, Dean Carlota simply was asking, at the minimum, to for five (5) more months!

Mind only that they want him out the minute he turns 65.

Mind only that they wanted to make him a lame duck, as soon as possible, and to make him one in public, posting their signatures attached to huge statements—printed at college expense, at that.

After 30 plus years of faithful service, this man is met not in gratitude but with ingratitude.

Paraphrasing the Bard, surely now breaks a noble heart. A few days ago, I witnessed something totally uncharacteristic of Dean Carlota—he expressed, in no uncertain terms and tone, his disgust at his colleages. “If there is one thing good that has come out of this,” he said, “it is that I now know the true character of some of my colleagues. All I want is five more months, and they cannot even give me that!”

It is strong language coming from him, who is unfailingly civil, consistently cordial, deliberately inclusive, characteristically polite—yet, under the circumstances, I am not surprised; I am surprised only that he did not use stronger language, I would have—but that shows simply that he is a better man than I am.

After 30 plus years of continuous service, his colleagues, many of whom he taught, cannot give this man five more months!

Etched in granite at the lobby of Malcolm Hall, the U.P. College of Law proudly proclaims that we teach law in the grand manner.

I would like to think that I teach law in the grand manner because I teach law students, first, to become good persons. One cannot become a great lawyer unless one is a good person first.

Certainly, modeling ingratitude cannot be part of teaching law in the grand manner. Butif it is, then perhaps it really is time to really tear down that wall with those words etched in granite because then teaching law in the grand manner--in this way--would be one big, cruel farce.

The Legal Equivalent of the Kitchen Sink

In my line of work, I had to learn early on to take whatever victories I get and manage to learn to roll with the punches, learn from the losses and try not to get too embarrassed from my galactically stupid mistakes.

A friend of mine told me that I am the lawyer's equivalent of St. Jude; if you know what he is patron saint of, you might catch the analogy. I didn't know what to think then but later on, I felt complimented.

Early on also, I've had to learn many little things about the law that would help--in any way--secure those precious little victories. One provision of the Rules that I stumbled upon early on is Rule 135, section 6 (non-lawyers, feel free to tune out after this; you're welcome to read on though if you wish. ), an innocuous provision of the rules that no one (well, except I, he he he) in law school teaches. It is what I fondly call the legal equivalent of the kitchen sink (the figure of speech is "throwing everything at a problem, including the kitchen sink). It reads:

Sec. 6. Means to carry jurisdiction into effect. -- When by law, jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules.

In short, what does it mean? It is license given to a court--any court-- to invent, to create, to magically conjure up remedies that the Rules or the Law did not even dream of, for so long as it is consistent with the law or the rules. Note that Article VIII, sec. 5(5) gives the power to promulgate rules on pleading, practice and procedure only to the Supreme Court but this one, Rule 135, sec. 6 gives to any court the power to adopt any process or mode of proceeding.

In my line of work, where clients generally don't have a defense, or a witness, or a witness who is credible, or cannot be bought, intimidated, frightened off or killed, that is the kitchen sink.

Recently in the very first case involving the writ of amparo (it is docketed by the CA as 00001 ), I cited this rule in our Position Paper for the petitioners; one of the justices commented, "I did not realize that rule existed. That is a very powerful rule. However did you discover that?" I just smiled.

My answer would have been, had I been minded to answer: "Sometimes, necessity, or utter and sheer desperation, is the mother of invention or resourcefulness."

That's how I discovered the legal equivalent of the kitchen sink.

Politics as Usual, in the Grand Manner

I have blogged about how I feel about the current Dean of the law school, Salvador Carlota. He is a conservative in many ways--his ideas, his ways of doing things, even his vision for law school. As a liberal in many ways, I seriously did not think that I would ever find life serving with and under him. To my surprise, I did.

While my vision of law school and legal education and even life and law are very different from his, I have enjoyed my service with him at the helm of the law school. Inevitably, I would find myself wishing that the Dean would have more progressive thoughts or ideas but I would always weigh that against what he has done for the law school during his term--to stabilize the law school and to try (operative word: try) to unite and integrate the law faculty. And he has succeeded in bringing stability to the law school simply because he has been present and he has been a hands-on dean. It is a good way of leading by example to see the Dean in his office when he should be in his office and in class, when he should be in class; save for a few official travels, the Dean has been in Malcolm Hall when he shoud be. That, and the fact that his record as administrator cannot be doubted, has brought some stability to Malcolm Hall.

Now, that stability is threatened again simply because of politics as usual. In the coming days, the spectacle of a divided faculty will once again be in full display--simply because some people just cannot wait.

The Dean retires on December 10, 2007 yet but, even as the usual and traditional courtesies have yet to be accorded him, the first salvo has already been fired by those who cannot wait to make him a lame duck.

I marvel really at human character and human nature; what is it about the lust for power that makes people do such things? I note that even vultures wait for the prey to die before swooping down.

I would have wanted to describe all these as "a great shame" but I guess "shameless" would be a better word.

Perspective

At the start of a new semester of law school (and for the underbars out there, the first day of work for many), let me give some space to Alan Dershowitz (Felix Frankfurter Professor of Law at Harvard, also a litigator, columnist, lecturer and prolific author; he has been counsel for the accused in many high profile cases in the U.S.) who, in Letters to a Young Lawyer writes this interesting and certainly provocative piece.

Dont' Do What You're Best At
By: Alan Dershowitz

Some of the least happy people I know are those who figure out what they are best at and then tailor the job to their particular expertise. The problem is that what you're best at is not necessarily what gives you the most gratification or what is most important. Our educational system steers students towards courses and areas in which they excel. Grades are, after all, quite important to getting into college and law school. And it's ok to take courses in which you will excel. But courses last only a few months. Life is forever. So pick a career, or an area within your career, that balances excellence and gratification. It should challenge you every day and have you waking up eager to confront the day's challenges. Obviously you don't want to pick something you're not very good at, no matter how much you might enjoy it (for me, that would be basketball) [Ted's Note: It is uncanny that I would have the same notation as regards basketball, which I enjoy greatly but am not skilled at] Pick an area that you're quite good at but that gives you so much joy that you can't wait to get up in the morning and go to work.

Early in my career, when I was less controversial, I was offered law school deanships and university presidencies. I knew enough about myself to turn them down. In one instance, I wrote a "Groucho Marx" reply, saying that I would not want to join a club--or in this case, a school--that would have me as its dean. A dean or president must be able to bring people together. I drive them apart. I am a provocateur, not a pacifier. I would enjoy the prestige of being dean, a president or perhaps a judge, but I would hate the day-to-day aspects of the job.

I know too many people who have taken prestigious jobs--deanships, chairmanships, judgeships, professorships, partnerships--simply because they were flattered to be offered them. Understand the difference between being offered a job and accepting it. It is flattering, even career-enhancing, to be offered a prestigious job, but it is a terrible mistake to accept the job unless it is right for you--at the stage of life you are when it is offered.

Having said that, another word of caution: Don't love your work too much, especially if you're a lawyer. When I was a young lawyer, my elders would talk too about the law being a jealous mistress or loving the law. Don't love the law. It will inevitably disappoint you. Understand that the law is a tool, a mechanism, a construct. It is a false idol like so many others in life. In one respect, there is no such thing as "The Law." What we call the law is a process, a group of people, some ideas, precedents, books. Don't respect the law, unless it merits your respect. The law in Nazi Germany or in apartheid South Africa or in the Jim Crow South did not deserve respect. The Supreme Court's decision in Bush v. Gore should be followed--that's what it means to live under the rule of law. But it should not be respected, any more than the robed cheaters who wrote it should be respected. American law today sometimes deserves respect, other times it deserves condemnation. It must always be obeyed, but it need not be admired. Honesty is more important than respect.

If you don't love the law, what should you love (aside from loved ones)? Love liberty. Love justice. Love the good that law can produce. Aspirations don't disappoint, so long as you realize that the struggle for liberty, justice and anything else worth pursuing never stays won.

Perspective

I've been gone (from Manila) for about 1.5 weeks and things get exciting--explosions at the mall and a pardon for a plunderer. Wow, maybe I really should get out more.

Seriously, when the Erap pardon first came out, I was just about to prepare for a retreat and all of a sudden, I get this deluge of sms from irate friends cussing in all shades of blue (many of them female). Many asked me why, which is funny because I really don't know the answer (I have my speculations but, of course, your guess is as good as mine).

Let me hazard a guess though.

The Erap pardon is not an act of grace nor an act of forgiveness--it is purely political. Gloria is storing capital for 2010 because when she steps down--assuming she's not sooner removed before then--she is going to be sued for plunder, just like Erap. Right now, there is no one looking out for her because when she loses power in 2010, she will just be another ex-president facing a plunder charge. So the Erap pardon is clearly political security for her even as she anticipates the deluge of plunder suits she and Mike Arroyo will face.

As to why Erap accepted it--why shouldn't he? It is a golden opportunity to parlay into political capital once again his tarnished name and reputation. And if it means not calling for Gloria to step down sooner than 2010 and calling her "President", it is a cheap price to pay and a not too bitter pill to swallow.

In the meantime, we, the people, have just been had again.

Old dogs do learn new tricks--Erap and Gloria did. Whyever can't we, the people, learn?

Lives resume, never to be the same again

As the beating of the snare drums dies down, and the last barricade removed, Taft becomes normal again, signalling the end of the Bar Examinations of 2007.

Far from going back to normal, lives are resumed but are changed--never more to be the same again.

4 years of law school does not prepare you for the 5 months of review and the one month of last-minute preparation to take the 8 exams spread across 4 Sundays.

4 years of law school does not prepare you for the terrible bouts of confusion, despair, depression, anxiety, fatigue, illness, and surrender that dances across one's emotional spectrum every day.

4 years of law school also does not prepare you for the joy of newly-discovered relationships with others in the same journey; of bonds formed and forged forever in the crucible of shared anxieties, shared triumphs, shared joys and shared decisions; of unlikely friendships created out of perhaps a mutual need, truly serendipitous moments or perhaps even divine intervention.

4 years of law school will never prepare you for the epiphany that there is more to life than law school but that a life lived in the pursuit of the law may, after all, be one of life's nobler callings.

After 4 years of law school 5 months of review and 4 Sundays, lives resume but are never the same again.

To the U.P. bar examinees of 2007: may you truly live changed lives--seeking always for what is best in this profession that is often a picture of what is worst, striving always for the justice that is desired by many yet is elusive to they who need it most; speaking always the truth that sets people free but is often masked and hidden by the lies that chain and bind; standing always for freedom that is the greatest gift yet is often never received.

To the U.P. Bar examinees of 2007: many of you have said, "we hope to make you proud." You honor me greatly by that, as I do not deserve that privilege. My answer to you has always been--and remains still--"you already have."

"The voice of one crying in the wilderness. . ." (Matthew 3:3)

Jovito R. Salonga, the Best President we never had, Senate President, Senator, Patriot, Nationalist, Ramon Magsaysay Awardee, Political Detainee, War Veteran, U.P. Lawyer and Bar Topnotcher--moral force, man of God and Sigma Rhoan no more.

The newspapers today speak of a real man standing for his principles and standing by his word, even when it is unpopular, even when it goes against the grain, even when it is not expedient, for so long as it is the right thing to do: Jovito Salonga resigns from Sigma Rhoa "effective immediately."

I have had the happy honor of not only meeting the man personally many times over but to have worked with and for him. I first met him when he called me over the phone and introduced himself as "Professor Te, si Salonga ito." He asked to meet with me at his home in Valle Verde and there he broached to me the possibility of forming a student monitoring team to look into cases of delay in the courts as well as to be a watchdog for judicial appointments--this was to become Bantay Katarungan. I gave my two cents worth and he listened; he later offered me a job with Bantay Katarungan to be the coordinator; I was flattered no end but had to decline it because my schedule at that time would not allow it--it was still during the reign of the death penalty and my docket was, literally, clogged. I was greatly honored to even be considered and I told him that. And his answer was, "Professor, just continue doing what you are doing; you are doing good work." To this day, he calls me "Professor" or "Attorney", and to this day, it is impossible not to feel greatly honored that this man, Jovito Salonga, would address you with two titles that he, himself, has distinguished and brought great honor to.

Since that time, I have met him many times; I have represented him in two cases before the Supreme Court and have had the benefit of his legal acumen in the formulation of arguments and even the acerbic and dry wit that is rarely seen. Unforgettable for me is his response when we (Senator Bobby Tanada and I) were offering him the "first chair" as it were in arguing before the Supreme Court our petition to declare the Visiting Forces Agreement (VFA) unconstitutional; he said, with a hint of a smile, "huwag na ako, at baka masigawan ko pa ang Korte. . . (pause). . .alam mo naman ako'y bingi na."

Ka Jovy, as I call him, is a man who knows the right thing to do at the right time. His stand on many things is well-known. Yet, many people were surprised to hear him speak out on the Cris Mendez/Sigma Rho issue; not a few dismissed his "promise" that he would resign if Sigma Rho would be shown to have been involved in Mendez's death. His resignation from Sigma Rho is not surprising, it is simply Salonga.

Today, Jovito R. Salonga has once again shown what it truly means to have honor, to have courage, to have integrity. May he, like John the Baptist (Matthew 3:3) , be a voice crying out to proclaim the good news that is to come but may he, unlike John, not be simply the "voice of one crying in the wilderness" but the first voice in a cacophony and chorus that is to come.

A Primer (of sorts) on The Hazing Law (RA 8049)

For a more constructive debate and a clearer idea of what the Hazing Law can do or cannot do --

Q. How is hazing defined?
A. As used in the law, hazing is an initiation rite or practice used as a prerequisite for admission into membership in a fraternity, sorority, or organization. (sec. 1)

Q. How is it done?
A. Under RA 8049, the essence of hazing is "placing the recruit, neophyte, or applicant in some emarrassing or humiliating situations such as forcing him(her) to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury." (sec. 1) [My observation: the only difference apparently between hazing as defined and recitation in the UP Law School is that the law student is already in the college of law but the neophyte is still aspiring to enter.]

Q. Who are covered by the hazing law?
A. Any club, or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corps of the Citizen's Military Training or Citizen's Army Training except those "physical, mental and psychological testing and training procedure and practices to determine and ehance the physical and mental and psychological fitness of prospective regular members" of the AFP, PNP as approved by concerned government officials. (sec. 1)

Q. When is hazing allowed?
A. It is allowed only if there is a prior written notice to the scholl authorities or head of organization seven (7) days before the initiation; the notice shall indicate the period of the initiation which shall not exceed three (3) days, shall include the names of those to be subjected to the activities and shall "contain an undertaking that no physical violence be employed by anybody during such initiation rites."(sec. 2) [My observation: Yeah, right.] Additionally, under section 3, the head of the school or organization or their representative must assign at least two (2) representatives of the school or organization to be present. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. (My observation and query: now who was the representative during the hazing of Cris Mendez? Your guess. . . should be kept to yourself unless you want to be sued for libel. )

Q. What are the legal consequences of hazing? Who are liable for hazing?
A. It depends on what happens to the neophyte or applicant.

a) If he/she is physically injured or dies as a result of hazing (whether authorized or otherwise), the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals and shall suffer a range of penalties raning from prision correccional (six months and one day to six years) to reclusion perpetua (20 years and 1 day to 40 years), depending on the extent and nature of injuries inflicted (if death results, the penalty is automatically reclusion perpetua). The maximum of the penalty, in each case, will be imposed if: (a) the recruitment is attended by force, intimidation, violence or deceit; (b) the person who decides to quit is prevented from doing so; (c) the person, after being hazed, is prevented from reporting the incident to parents, police or other authorities; (d) the hazing is committed outside the school or institution; (e) the victim is below 12 years old at the time of hazing.

b) The owner of the place where the hazing is done is liable as an accomplice when he actually knew that hazing would be conducted but failed to prevent the same; if the hazing is held in the home of any of the officers or members, the parents are liable as principals when they have actual knowledge of the hazing and failed to prevent it.

c) The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to prevent the same are liable as accomplices.

d) The officers, former officers, alumni who actually planned the hazing although not present when the acts are committed are liable as principals. Officers or members who knowingly cooperate by inducing the victim to be present are liable as principals. The adviser who is present when the acts are committed and failed to take action is liable as principal.

e) The president, manager, director or other officer of a corporation engaged in hazing as a requirement for employment.

Q. What is the liability of a person who is merely present?
A. The presence of any person during a hazing is prima facie evidence of participation as a principal unless he prevented the hazing.

Q. Can the mitigating circumstance of "no intention to commit so grave a wrong" or praeter intentionem be allowed?
A. No, under sec. 4, this mitigating circumstance is expressly disallowed.

Ang mamatay nang dahil sa 'yo, ang pinatay nang dahil sa wala

Note to the faint of heart: I am angry; no, I am enraged. The words that will follow are angry words. If you are looking for nice, peaceful and sweet-sounding words, skip this one. But if you are as enraged as I am, read on and participate.

Note to those who will take the other side: I welcome constructive debate from people who are willing to put their names where their thoughts are. For masked thugs trolling the blogs of those who oppose you, you have no place in this debate. Go, make yourself scarce; if possible, for all time.

Ang mamatay nang dahil sa 'yo (to die for you) -- the last line from the Lupang Hinirang, our national anthem, speaks of the nobility of a death that is achieved for a purpose bigger than one's self and one's life. It is--or should be--the ultimate goal of any person who loves--be it country, principle, faith, fellowmen or God.

Certainly not for a fraternity. And most certainly, not for a fraternity that holds itself out to be gentlemen warriors but does not have the integrity to own up to killing one of they would claim as their own nor the courage to name the ones responsible.

Ang pinatay nang dahil sa wala (to be killed for nothing) best describes Cris Mendez and other nameless, faceless victims of this system of barbarism that is the hallmark of fraternity initiations. Indeed, it is as if Cris Mendez's death was for nothing as even the very fraternity he aspired to join would not even come forward to offer a mea culpa, mea maxima culpa.

There is a rule in Evidence that speaks of Character--which is who or what you are, when no one is looking. It is very easy to look noble when you are being watched; it is very easy to look dignified when you are on a stage. But when you can exercise that nobility and possess that dignity even when no one's watching, that is character.

To those who killed Cris Mendez, no one was watching as you beat him to a pulp; no one was watching as you reduced a life to nothing but a carcass; no one was watching when you inflicted blow upon blow in the name of a "brotherhood" that deserves no glory other than that which is associated with that other organization that practices omerta.

There is no nobility in beating up someone who cannot fight back, there is only cowardice. A warrior with honor never raises his fist or his sword against a defenseless foe, only a thug does. Sigma Rhoan Juan Ponce Enrile described you best: not gentlemen warriors but-a bunch of "thugs" with no character, with no honor, and as the Romulans would say, with no name.

Until the day when you surrender those among you who killed Cris Mendez, until the day when your current leaders have the honor, the character, the courage and, if you will pardon the sexist term, the balls to fall on your sword and come forward to be held accountable, you do not exist, in my contemplation.

And for those in law school, you had better pray that you never enroll in any of my classes, ever--and that includes the OLA program, which is mandatory for a UP degree--because I cannot give a grade to someone who does not exist.

And for the alumni of this collection of thugs that killed Cris Mendez, stop basking in romanticized glory and do the right thing--withdraw ALL support from these thugs and let the law take its course.

The Blood of Brothers

I have written on this before and it gives no pleasure to write again on this. But another son, brother, person, human being has been killed by a fraternity: Chris Mendez by Sigma Rho. Never mind that there is no official acknowledgement by Sigma Rho; its silence on this matter speaks more eloquently than any official confession.I have been reading many of my students' blogs on this latest episode of fraternity violence, this time inflicted on one it would call their own, and almost all have asked the question, "why?" There is no answer there that can be found other than to say that it is perhaps a mindless adherence to an outdated tradition of compelling loyalty by means of blood-letting and blood sharing. Yet, we live in times that we would consider civilized, how then explain the almost morbid fascination of fraternities (and I generalize here to include ALL Fraternities; it is their burden to prove me wrong) with exacting loyalty and commitment by means of physical violence?I am not a frat man and I am not a barbarian, they are the barbarians, for how else explain the ritualistic blood-letting that must accompany every entry into these greek-lettered societies?I have never considered physical violence to be a measure of anything other than the shallowness of a person's capacity to reason and the absence of a person's capacity to inspire. Commitment and true brotherhood may be exacted by reason and inspiration, blind loyalty by beatings. That is the difference between humans and horses; you can inspire a person to follow you into the gates of hell but you will have to beat that into a horse.Yet, these fraternities pride themselves to be the best that there is to offer; Sigma Rho, in its posters extolling alumni (some of whom have publicly distanced themselves from the violence but without resigning), call themselves "gentlemen warriors." If you truly are the best, gentlemen, you do not need to beat commitment into your neophytes; if the gospel you preach is truly the good news, then the ultimate act of hate has no place in it.I am not a frat man but I am part of a brotherhood--a brotherhood that preaches the good news that, yes, everyone is entitled to respect. My brothers are committed to me and I, to them, not because we were beaten up but because we share the same principles, the same way of living, the same faith and the same experience of love and being loved. So, even if I am not a frat man, I do know of whence I speak when I speak of being a brother to another.In Genesis 4:9, ". . .the Lord said to Cain, 'Where is Abel, your brother?' He said, 'I do not know, am I my brother's keeper?'"Cris Mendez was hazed so that he could be a brother; ultimately, his blood was spilled by those who would call him, yet not keep him, as brother. The greater tragedy is not that he was killed in the name of brotherhood, but that the brotherhood to which he aspired would even wash his blood off their hands by simply asking, "am I (Cris's) keeper?" To those who killed Cris Mendez, let me say this: Yes, you are your brother's keeper and his blood is on your hands--not only by you who lifted your hand against him to beat him, to maul him, to spill his blood, but also by you who would stand mute and lift no voice of condemnation for those among your brothers who killed Cris. Yes, you are your brother's keeper and, if you would cherish his memory, you would not stand mute in the face of the grief and bereavement of his family and his friends but rather break your silence to let the truth out.Yes, you are your brother's keeper for, ultimately, as Donne puts it "any man's death diminishes me because I am involved in mankind; and therefore never send to know for whom the bell tolls, it tolls for thee."

Bastusan Na!

The Filipino language has a beautiful and appropriate word for what happened at the House of De Venecia (I refuse to call it the House of Representatives anymore as they no longer represent me in any way) the past two days  BASTUSAN.

Resolution No. 1450 passed by De Venecia’s kennel can be best described in that one single word:  BASTUSAN.

The nearest approximation that would do justice to the flavor and meaning of this one word is an abject lack of respect.  

Turn about is fair play, (none of you are worthy of the appellation “Mr”, which I proudly claim, so henceforth you are simply) De Venecia, Nograles, Defensor, Lagman, Salapudin, Del Mar and everyone else, male or female, in the House of De Venecia who refused to stand on principle and give the sovereign Filipino people the respect they deserve.  Bastusan na ba? E di, bastusan na nga!

The latest issuance from the House of De Venecia in full (without annotation, as words fail to capture the venality of this piece of [fill in your own expletive])


Republic of the Philippines
Congress of the Philippines
Quezon City, Metro Manila
Thirteenth Congress
Third Regular Session
RESOLUTION NO. 1450
RESOLUTION CALLING ALL MEMBERS OF CONGRESS TO PROPOSE AMENDMENTS TO, OR REVISION OF, THE CONSTITUTION PURSUANT TO SECTION 1, ARTICLE 17 OF THE CONSTITUTION AND FOR OTHER PURPOSES.
WHEREAS, there is a growing clamor from various sectors of oursociety to amend or revise the Constitution;

WHEREAS, it is imperative that any proposal to amend or revise anyprovision of the Constitution shall adhere to the express provision ofthe Constitution as provided by Section 1, Article 17 of the Constitution;

WHEREAS, Section 1, Sub-paragraph 1 of Article 17 of theConstitution provides that: "Any amendment to, or revision of, thisConstitution may be proposed by: the Congress upon a vote ofthree-fourths of all its members.”

WHEREAS, while there are alternate modes of effecting charterchange, adopting the afore-cited Constitutional provision quoted inthe immediately preceding paragraph hereof is the mode recommended byan overwhelming majority of the Members of Congress;

WHEREAS, in order to ensure that proposals to amend or revise theConstitution could be considered by Congress in an orderly andpractical manner, a call for ALL THE MEMBERS of Congress to propose amendments to, or revision of, the Constitution shall be made, as thisresolution proposes.

WHEREFORE, IT IS RESOLVED AS IT IS HEREBY RESOLVED TO CALL ALL MEMBERS OF CONGRESS PURSUANT TO SECTION 1, SUBPARAGRAPH 1 OF ARTICLE  17 OF THE CONSTITUTiON TO PROPOSE AMENDMENTS TO OR REVISION OF THE CONSTITUTION AT THE PLENARY HALL OF THE HOUSE OF REPRESENTATIVES, BATASAN COMPLEX, QUEZON CITY BEGINNING AT 10 O'CLOCK IN THE MORNING OF DECEMBER 11, 2006 UNTIL THE APPROVAL OF THE PARTICULAR AMENDMENTS OR REVISION OF THE CONSTITUTION FOR SUBMISSION FOR THE PEOPLE FOR THE PURPOSE OF PARTICIPATION IN ACCORDANCE OF SECTION IV, ARTICLE 17 OF THE CONSTITUTION.

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.