SCLeaks

Amidst the continuing WikiLeaks saga, the Supreme Court sprung its own leak - its ruling on the constitutionality of Executive Order 1 which created the Philippine Truth Commission (PTC). Instead of releasing copies of the decision to the public, it chose to hold a press conference where deputy Public Information Office chief Victoria Guerra (does her last name playfully describe the current state between the executive and judicial branches?) provided basic details about how the Court voted and the main ground used to invalidate the EO. It was as if the Court was testing the waters to first gauge public reaction.

PTC Chair and former Chief Justice Hilario Davide and Solicitor General Joel Cadiz were rightfully incensed over the Court ruling to wholly invalidate the PTC. For us Constitutional law junkies, the use of the equal protection clause as the weapon to cut down the EO was surprising. To paraphrase the immortal words of Themistocles: “Strike - but strike me elsewhere.”

The equal protection concept is borrowed from the 14th amendment to the US Constitution which was enacted in 1868, right after the Civil War, with its primary goal being to secure equal treatment for African-American slaves. But while the clause “imposes a general restraint on the use of classifications,” first year law students know that it allows the government to provide for “reasonable” classifications, the test for which has been clearly defined by Philippine jurisprudence over the years. But rather than boring you with legalese, let me just say that reasonability commands the State to treat “similarly situated persons in a similar manner.”

The bottom line question is whether the past administration could be considered as a class in itself insofar as corruption was concerned. To argue that the law was “under-inclusive” is not fatal in an equal protection scenario since government is empowered to deal with problems “one step at a time”. 

Indeed, there have been several investigative and fact finding commissions that were created in the past (e.g., Melo, Feliciano, Zenarosa and even Davide) yet this is the first time that a body was totally invalidated. By way of consolation, at least the government was able to persuade the two former law deans in the Court, Justices Bobby Abad and Ed Nachura to vote on their side, with the latter, an acknowledged authority in Constitutional law.

In fact, I dare say that this EO 1 was just “plagiarized” from the original EO 1 of 1986 of President Corazon Aquino which created the Presidential Commission on Good Government. And yet, the latter has withstood constitutional scrutiny for the last 25 years (although I may be speaking prematurely as it may still suffer a similar fate). This may be an admission against interest but it is the older commission that needs to fade away and the younger commission given the opportunity to do its job and prove its worth.

The majority decision hinted a “way out” to the Executive branch by stating that “perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.” In other words, adding an “s” to the phrase “past administration” may do the trick. But is this not too facetious a point to anchor a whole case upon? As pointed out above, by using this standard, then the PCGG law should be struck down as well?

But what is perhaps most disturbing is that anti-corruption and good governance were the cornerstones of the Aquino campaign and for which he recently received a resounding mandate from the sovereign people. And if we were to apply the principles of the American founding fathers on a system of government that is largely copied from them, it would be a cardinal sin for unelected judges to supplant a political decision of a popular President. This arguably constitutes an affront not only to the people who elected him but to the whole concept of separation of powers within a democratic framework.   

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Revenge of the Azkals: May I add my congratulatory one centavo to the Philippine “Azkals” for reaching the semi-final round of the AFF Suzuki Cup, Southeast Asia’s premiere football tournament. Apparently this is the first time in the 16-year history that a Philippine team has reached this stage.

 The name of the team alone, a play on two Filipino words, which loosely translated means “street dogs”, to my mind signified a gritty group but which was not really expected to win.

Indeed, the coach of the highly regarded Vietnamese team who refused to shake hands with Filipino counterpart after the match was reported to have remarked that the Azkals “were all defense but no offense.” But the football version of Muhammad Ali’s “rope a dope” tactics proved in the end to be the antidote to the Vietnamese’s lethal scoring prowess.

With the Azkals’ performance, there seems to be a renewed interest in promoting soccer in the country. This makes sense not only because the latter is the most popular spectator sport in the world but since the average Filipino’s physique is more suited to it than to basketball. Having said that, however, I note the foreign sounding names of several team members: Phil Youngblood, Neil Etheridge, Jason de Jong, Rob Gier, Ray Jonson and Chris Greatwich. But then again, an “azkal” is supposed to be a half breed, right? It is hoped that the team’s performance will usher in a new soccer renaissance.

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Seminar Encore: Speaking of resounding mandates, the FEU Institute of Law, together with the Center for Global Best Practices (CGBP) will again be holding a one day seminar on “Best Test Taking Practices for the New Bar and Law School Exams” on Sunday, January 9, 2011, 9 a.m. - 5:30 p.m. at the new FEU Makati building along Gil Puyat (Buendia) avenue. For more information on the seminar, you may visit CGBP’s website at www.cgbp.org, email Ivy Enriquez at [email protected] or call 8427148 or 59.

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 “Take nothing on its looks; take everything on evidence. There’s no better rule.” — Charles Dickens’ Great Expectations

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Email: d[email protected]