> At Supreme Court, she won some, lost big – Isagani Cruz

At Supreme Court, she won some, lost big

By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 05:01:00 07/25/2009

MANILA, Philippines — In the past eight and a half years, President Gloria Macapagal-Arroyo faced several major cases involving constitutional issues before the Supreme Court. She won some and lost others, depending on one’s political orientation.

The first case sustaining Ms Arroyo in the Supreme Court was Estrada vs Arroyo, in which Justice Reynato S. Puno held that the petitioner as President of the Philippines had voluntarily given up his office in Malacañang and thereby allowed then Vice President Arroyo to take over as constitutional successor.

The decision, which included the consolidated case of Estrada vs Desierto for raising the same constitutional issues, was concurred in by five other justices. Two more filed separate concurring opinions, making eight of them, with five others concurring only in the result.

Chief Justice Artemio V. Panganiban and Justice Hilario G. Davide Jr. did not take part in view of the active role they played in Ms Arroyo’s ascension to the presidency.

After the controversial 2004 presidential election, Ms Arroyo suffered a triple whammy from the Supreme Court in 2007 with the release of its decisions in the cases of Senate vs Executive Secretary Ermita, Bayan vs Ermita, and Randy David vs Arroyo.

Chief Justice Puno was on leave when all the three cases were decided; the first two cases were resolved unanimously by the other justices, with three justices dissenting in the third case.

Executive privilege

The first case—Senate vs Ermita—involved the question of the President’s executive privilege as claimed by the respondent in his capacity as executive secretary.

Ermita’s argument was that by virtue of Executive Order No. 464 of Ms Arroyo, no officer of the Armed Forces could appear before a congressional investigation without her consent, as two senior officers had done and were facing court-martial proceedings as a result.

Justice Conchita Carpio Morales, supported by the rest of the court, declared after an exhaustive research as follows:

“EO 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this court. Due process thus requires the people should have been apprised of this issuance before it was implemented.

“Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.

“The infirm provisions of EO 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting the right to do so and/or professing the reasons therefor. By the mere expedient of invoking such provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.”

‘Instrument of tyranny’

The second case—Bayan vs Ermita—was filed by members of civil and political groups against abuses committed by the Armed Forces in violation of the Public Assembly Act and in compliance with the calibrated preemptive response prescribed by Ermita.

After examining the arguments of the parties in light of the position of the Supreme Court in its past decisions on freedom of expression, Justice Adolfo Azcuna called for the strict enforcement of Republic Act No. 880 and the invalidation of calibrated preemptive response as an instrument of tyranny.

The third case—Randy David vs Arroyo—was 99 percent in favor of Presidential Proclamation No. 1017 declaring a state of national emergency that the court said was within the military powers of the President.

It was only in the last few pages of the ponencia that it held that “the warrantless arrest of Randolf S. David and Rolando Llamas; the dispersal and warrantless arrests of the KMU and Naflu-KMU during their rallies in the absence of proof that they were committing lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint in the press, as well as the warrantless search of the Tribune offices and the whimsical search of other articles for publication are declared unconstitutional.”

That, at least, saved the decision from being another hallelujah for Ms Arroyo.

Neri vs Senate

Whatever relief the first case must have given the people, its legal savor has been diminished by the redefinition of executive privilege in the highly unacceptable case of Neri vs Senate.

In that case, petitioner Romulo Neri was allowed to invoke Ms Arroyo’s caution against answering certain questions put to him by the Senate in connection with its investigation of the scandalous NBN-ZTE contract.

The new case was decided by a more resilient Supreme Court with only the stalwarts Chief Justice Puno and Justices Carpio, Azcuna, Ynares-Santiago, Austria-Martinez, with the writer of the much admired earlier case, Conchita Carpio Morales, dissenting.

Bangsamoro Treaty

Another interesting question reached the Supreme Court when it was asked about the First Nation under the so-called Bangsamoro Treaty.

This was an absurd attempt to create a presumptive state independent of our republic, with its own territory in Mindanao and its own ancestral domains not subject to the jurisdiction of the Philippines.

The authorized representatives of Ms Arroyo, including the Secretary of Foreign Affairs, were already prepared to sign the agreement when angry protests resounded throughout the land.

The impossible plan did not deserve a hearing from the Supreme Court and the moribund Bangsamoro Treaty died a-borning.

All throughout her inglorious reign, Queen Gloria has never renounced her scheme to retain her ill-fitting crown. Last year she consigned her own Lambino vs Commission on Elections to the judicial trash can like Pirma vs Commission on Elections as later dismissed by Santiago vs Commission on Elections.

Still the insistent royalty is undeterred. She is now orchestrating the unconstitutional constituent assembly (Con-ass) without the participation of the Senate, but as former President Fidel V. Ramos would counsel her: “Going to the summit is optional, but coming down is compulsory.”

(Editor’s Note: The author was associate justice of the Supreme Court from April 16, 1986, to Oct. 11, 1994. He’s now an Inquirer columnist.)


  1. samvoy
    July 28, 2009 at 10:35 am

    If she clings to power forcefully, or through the con-ass, via cha-cha then the people can bring her down in any way, including all those congressmen who consented.

    This process were done in 1986 2000 i think, and were held legitimate as a decision of the people themselves. Democracy is working.

    Whether or not we can still do it is the question.

    • July 28, 2009 at 11:01 am

      we dot not have to resort to another EDSA People Power. all that is needed is for arroyo to follow the constitution and respect the wishes of the poeple.

  2. samvoy
    July 29, 2009 at 1:24 pm

    Arroyo cant run for PRESIDENT under our constitution but can run for other positions. Why do we have to stop her? If you say she has to follow wishes of the people, then we have to determine the wishes formally and that is through a constitutionally allowed process of plebiscite.

    People power is the last resort but is legal — if it succeeds.

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