1. Denying Discourse

    There are a number of traits inherent in Senator Miriam Defensor-Santiago’s worldview that I object to; among them her denouncing of any belief contrary to hers and her proclivity for hate-mongering and insult-laden ranting. The impeachment trial has brought her many faults into sharp-focus, at least for those who look past the inherent entertainment value of her screeds and weigh the value of the content.

    If anything Senator Santiago has fully embraced her role as the loose canon of the Senate, and the Impeachment Court; playing and pandering to the less introspective elements of society, obscuring whatever intelligent and incisive commentary she has amid a cascade of blithering, blathering, and bombastic pronouncements. She has, in fact, become a court jester, a sad figure who relies on the volume and cadence of her voice to attract attention, rather than the probity of her opinions. Sad, because she offers a valuable viewpoint to the proceedings and public discourse at large.

    One of my favorite 20th century thinkers was Tony Judt, a man who lamented the deplorable levels to which public discourse has fallen in the West. Unfortunately, we in the East (and especially the Philippines) too often adopt the less admirable qualities of Western democratic discourse. We have a discursive problem, one that Judt described as, "Our discursive disability: we simply do not know how to talk about things anymore." While he was referring to our proclivity to reduce any discussion into economic components, the guiding idea remains the same: We are no longer capable of discussing. Our culture has become one where we are talking on differing levels, with different foundations for opinions, and with conceits that inform the idea that “I am right and everyone else is wrong.” The sense of self-righteous superiority that fills the air can become oppressive. People talk at length, but say little. We are not longer strangers passing in the night, we are strangers shouting to the side, failing to listen, learn, or explore (even respect) alternate world-views.

    Judt continued to discuss the breakdown in social imagination: "A closed circle of opinion or ideas into which discontent or opposition is never allowed - or allowed only within circumscribed and stylized limits - loses its capacity to respond energetically or imaginatively to new challenges." The side-effect of an elected representative of the people haranguing and denouncing any opinion contrary to hers is in fact creating an atmosphere of circuitous thinking, it denies the validity of any contrary opinion. The reducing of public discourse to snide commentary, insults, and ‘cute’ names is a disservice. When a Senator, one of the highest elected officials in the land, contributes on a daily basis to that reduction it is a travesty.

    Quite frankly, I care little for the reaction of Attorney Aguirre to Santiago’s rants. He broke court decorum, he essentially kicked mud in the eye of the Senate Impeachment Court. But, between a Senator referring to other elected officials and representatives of the Filipino people as gago (in essence, attacking other members of Congress and deriding the Filipino people whom they serve) she was creating a situation where-by someone was going too react to her ‘trolling’ and provocations. Let’s not pretend that there wasn’t good reason for him to act the way he did, there was. And the fact that there has been little blow back on the bully is disheartening. More to the point, the fact that the stance of the Senate has been to refuse to reel her in and attempt to add some decorum to the proceedings gives insight into how the Senate views this exercise. Or even how the Senators view the position that they hold. Between Sotto cracking jokes, Drilon playing the role of lead prosecutor, Joker Arroyo blithering on about half-baked conspiracy theories, and Santiago basically mocking the entire proceedings with her actions we have a very good idea how they view their position and responsibilities. This holds true too for the failures of the prosecution and the tactics deployed by the defense and their client throughout these proceedings. By the way, Judt commented on conspiracy theorists who go off half-cocked with nonsensical storytelling: “Those who assert the system is at fault, or who see mysterious maneuverings behind every political misstep, have little to teach us.”

    Eventually someone has to stand up to a bully, and Santiago has always been a bully. She relies on the sanctity of her elected position to bolster her opinions and shield her actions from criticism. Yet, by acting the way she has, she is inevitably (and consistently) debasing the august position that she holds. In no shape or form should it be acceptable for a Senator of the Republic of the Philippines to continually go off half-cocked hurling insults, ridiculing the intelligence and education of Filipinos who hold contrary opinions (as she has the last few days), and treating the position she holds as license to bully and deride.

    Miriam Defensor-Santiago is not the cause of our discursive issues in the Philippines. But she is a consequence, one that continues to sow the seeds for reductive and ill-formed discourse in the Philippines. Judt’s book from which I quoted is called Ill Fares the Land. I cannot think of a better description for the state of discourse in the Philippine sphere than that.


  2. We the People. We the Media.

    A couple of days Patricia Evangelista in her column wrote: More than anything, the impeachment court is an attempt at accountability, to take account of men who are invincible for the sake of those who are not. The court’s power emanates not from the people, but from the court itself, from the faith of the public who live in fear and awe of gavels and robes. Once that faith is shaken, even the most formidable of justices cannot hand down decisions and expect to be believed.” Taken at face value, or in its most superficial of meanings, this statement makes sense. As does much of her column, which makes some good points. Respect is based on perception. But on a deeper level this is a ridiculous over-simplistic statement that belies the actual relationship between the Court, the Constitution, and the People. It misses an opportunity to elucidate and educate in favor of a rabble-rousing slickly reductive soundbite.

    John Dunn wrote: “When we speak or think of ourselves as living a democracy, what we have in mind is something far different. It is that our state, and the government which does so much to organize our lives, draws its legitimacy from us, and that we have the reasonable chance of being able to compel each of them to continue to do so.” The Court itself holds little power other than what the Constitution and thus the People grant to it. It is not about how citizens perceive the High Court (or the power contained within the Court), but how they understand its role within a country. The Power of the Supreme Court is handed down and delineated by the Philippine Constitution, that is basic Civics 101. It is the Constitution that gives agency to these entities; it is the Constitution that the Filipino supports. Actions like impeachment are mechanisms for the People to assert their authority over constitutionally empowered individuals. In its most basic component, impeachment is the avenue where-by the People, through their elected representatives, can weigh and study the merits of an individual continuing in government service. It is not a mechanism for constitutional retribution or judicial revenge. Government service is not a right, it is a privilege, especially when it comes to some of the highest positions in the land. What we are basically evaluating is whether someone is worthy of continuing to serve the Filipino people. It is the assertion of the Filipino people’s authority over a government they themselves empower with vast responsibilities. Responsibilities that touch on every aspect of a Filipino’s daily life. We forget, but the role of a Constitution and a Bill of Rights is not only to define the role of government, but to protect a people from the potential iniquities of those who are imbued with vast powers and authority (think of the Magna Carta).

    Evangelista’s statement also reflects on on-going discursive issue in the Philippines: Our preference to reduce to issues to simplistic soundbites, Us vs Them; Transparency vs Impunity; Awe vs Derision. In the case of the impeachment, we not only get overwhelmed by legalese and details, we lose the import of the proceedings through reductive binary relationships. The mechanism of impeachment is more than transparency, it is more than accountability, it connects intrinsically to the role of the People in a country and the relationship between a citizenry and its government. Yet, the role of the People in this impeachment and the Constitution has been little touched on; other than a brief statement by Senator Juan Ponce Enrile in his opening remarks and a few statements by talking heads.

    The public framing, by both media and the government, of the impeachment has been a concern. Though there have been attempts to do so, it seems to fail to connect the Filipino people to the proceedings and instead leaves us to agentless by-standers. A common refrain has been that the ‘poor’ can’t connect to the proceedings. Another misguided assertion that ignores the importance of a government cognizant of its role and responsibilities in providing service to the People.  As it is today, governance seems to operate at a distance from the people. Again, this is more than accountability, more than transparency, it is linked deeply to the role of government in the lives of Filipinos and how we relate to that government. But just as importantly, the way that the impeachment is being handled by journalists gives insight into the relationship between media and the Filipino people. Should journalists be educational? Should they attempt to provide deeper meaning to proceedings such as this?

    In our system, media members have become public intellectuals. It is a burden that they must bear, a responsibility they should own up to. In this instance, I think Evangelista failed to live up to that responsibility. She took the slick simplistic way out. That does not mean that all media has, in fact I have been impressed with the quality of the coverage of the minutiae of the case. It is controversial issues such as this that allow us to see the quality of media. Unlike the Supreme Court, the Executive, or Legislative, media survives on the respect of the people. Their power is derived from their ability to remain ethical, cogent, and inspirational. Our clicks, our views, our subscriptions, are our votes. Much like politicians, media pandering for attention does little to educate, and far more to degrade discourse. That is a loss for the People too.


  3. Shadow of Doubt Excerpt - On the power of the Courts

    Peru…was a stunning example because it was its own Supreme Court that went after a Former President. This trial was so important because international tribunals, The New York Times wrote, were ‘unlikely to have the cleansing or educational power of a country’s own judicial system affirming the primacy of law.’

    In a landmark human rights case, a Peruvian Supreme Court three member panel in April 2009 sentenced former President Alberto Fujimori to twenty five years in prison for his involvement in a military death squad during a conflict with guerrillas in the 1990s. The verdict came after more than a year of trial that was broadcast on national television.

    In 2000, facing corruption charges, Fujimori fled to Japan. But he flew to Chile in 2005, with plans to make a comeback. Instead, he was extradited to Peru.

    'Justice was finally delivered - by one of our own courts,' wrote Maria McFarland Sanchez-Moreno of Human Rights Watch. 'This suggests that next time Peruvians may be able to put their trust in democratic institutions.'

    What happened in Peru hit close to home. It told us that our own legal systems - led by the Supreme Court - can take on the powerful. This may have been a big reason that President Arroyo packed the court.

    Marites Vitug, Shadow of Doubt, pgs 119-120


  4. "The object of the process is not to punish but only to remove a person from office. As Justice Storey put it in his commentary on the Constitution, impeachment is “a proceeding, purely of a political nature, is not so much designed to punish an offender as to secure the state against gross political misdemeanors. It touches neither his person nor his property, but simply divests him of his political capacity.” Put differently, removal and disqualification are the only punishments that can be imposed upon conviction on impeachment. Criminal and civil liability can follow after the officer has been removed by impeachment. Prosecution after impeachment does not constitute double jeopardy.
    The present Constitution has expanded the list of impeachable offenses to include “graft and corruption” and “betrayal of public trust.” The mention of these two categories might give the impression that impeachment has been trivialized. But the way the provision is worded is significant. It enumerates the grounds for impeachment as “culpable violation of the constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.” The word “other” is significant. The rule in the interpretation of laws is that when the law makes an enumeration of specific objects and follows it with “other” unspecified objects, those unspecified objects must be of the same nature as those specified. Thus, for “graft and corruption” and “betrayal of public trust” to be grounds for impeachment, their concrete manner of commission must be of the same severity as “treason” and “bribery.” These offenses strike at the very heart of the life of the nation."
    — Fr Joaquin Bernas, SJ, Eyes on the impeachment process, Philippine Daily Inquirer, March 21, 2011.

  5. "

    Bernas is of the opinion that the next President after the May elections should be the one to appoint the next chief justice.

    He said that even with the constitutional requirement that a President has to appoint a new Chief Justice within 90 days after the vacancy, the next President still has 45 days to make the appointment when he or she assumes office on June 30…

    He said any person who accepted the post of Chief Justice from Ms Arroyo would open himself or herself to impeachment by the next Congress.

    — Bernas: Arroyo Appointment may destroy SC Credibility, Philippine Daily Inquirer, January 23, 2010 (via @aupijuan)

  6. "In which branch of government would corruption have the most harmful effects on the country? The answer of most would be the judiciary, and with good reason: a corrupt judiciary would necessarily mean that the legal and institutional mechanism designed to curb corruption in other branches would be seriously compromised. It follows that the judiciary should come under even more intense scrutiny than the other two."
    — Philippine Human Development Report (2008/2009) via Shadow of Doubt.

  7. Shadow of Doubt Excerpt - On Corona’s Appointment

    It later became apparent, as Malacanang officials pushed for the early appointment of a Chief Justice, what the rush was all about. Defensor’s move was aimed at making President Arroyo appoint the next Chief Justice before the ban on appointments began - which was sixty days before the May elections and until the end of her term. The Constitution prohibits midnight appointments because, as the Philippine Bar Association (PBA) said in its letter to the JBC, the outgoing President ‘becomes a mere caretaker administrator tasked only with preparing the peaceful and orderly transfer of power after the elections.’

    Various groups, like the Supreme Court Appointments Watch and the PBA, objected to Defensor’s initiative and pointed out flaws in his arguments. First, the history of the Court showed that it had functioned with a Chief Justice in many instances. In 1966, Cesar Bengzon was appointed CJ three months after the post was vacated; Querube Makalintal (1975), six months; Enrique Fernando (1985), two months; and Claudio Teehankee (1986), twenty six days.

    Second, the Court could go on with its normal work under an acting Chief Justice who presides over deliberations and certifies decisions. ‘Whenever the Chief Justice is abroad or on leave, the most senior Associate Justice becomes acting Chief Justice and certifies all decisions. This has been the practice under the 1935, 1973, and the present 1987 Constitution.’ SCAW said in its letter to the JBC.

    Third, both groups assailed what was at the heart of Defensor’s move, 'Judicial independence, the very purpose of the JBC, is now under threat by the eleventh hour proposal (of Defensor),' the lawyer’s group, PBA, said in its well-argued letter, calling the proposal ‘brazen’ and ‘unconstitutional’ and citing a Supreme Court decision in 1998 that annulled appointments to the judiciary made during the ban. Puno voted with Chief Justice Andres Narvasa and the majority in this case.

    The SCAW was equally forceful, calling it a ‘naked attempt to allow the appointing power to circumvent the presidential appointment ban.’

    - Marties Vitug, Shadow of Doubt: Probing the Supreme Court, pg. 244.

    The Defensor referred to was Representative Matias Defensor, a known ally of then President Arroyo.

    We know how this little saga ended: Corona was appointed the Chief Justice of the Supreme Court right in the middle of the ban on midnight appointments to the executive and judiciary.

    At the heart of the impeachment of Corona is the prior subversion of our institutions. Yes the timing may be suspect, yes I would also like to see Aquino using his political capital to push through certain legislative measures. But we should not forget that there is merit behind Corona’s impeachment (even if it’s buried amidst political whining and bullshit). Even the irregularities surrounding Corona’s wife are grounds for questioning.

    I have my own qualms about this move and some of the suspect motives behind it. But, why should we wholesale defend Corona? The new public construct of Corona and the SC as unimpeachable (heh) and untouchable is antithetical to the concept of accountability. If we can call into question the integrity of our elected officials, why should our appointed officials (who without a doubt suffer similar ethical shortfalls) be exempt? The question that should be facing us now is if there actual merit in the impeachment?

    What is disturbing is how quickly we have forgetting the circumstances surrounding his appointment; more to the point, how quickly people who assailed Arroyo for appointing Corona are now turning on Aquino for doing what many have called for: Bringing accountability to the judiciary.

    Are we gun-shy? Or are we so wrapped up in oppositional politics that we forget eventually you have to stand for something?


  8. When Impeachment Means Something.

    There’s a subtle trend developing in the ombudsman impeachment that I think bears watching. At the heart of this effort is the belief that an official of the government, whether appointed or elected, can legally and constitutionally be removed from office on-grounds of ineptitude and non-performance. It is not on the basis of corruption, graft, illegalities in election. It upholds the basic belief that the government exists to serve on behalf of a people. And while, at times, there will be broadly unpopular measures that the government may pass that are necessary, the government at the end of the day is beholden and responsible to the people: To accomplishing their constitutionally mandated duties. They are put in position to do their jobs.

    The Ombudsman has not done this. And it really is about her poor performances, her delay in filing cases, the office’s ineptitude when it comes to constructing cases all point to her failing at her job. Think about the constant mantra of the last few weeks: "Now that we have the information, we’ll include it in our deliberations." Some of these cases have been lodged with her for years. These resources have been widely available for access; most definitely Heidi Mendoza’s testimonials were. And they didn’t think that sitting down and talking with Rabusa about deal-making and turning on Garcia wouldn’t have paid dividends?

    What has become apparent is that the Ombudsman was not only willfully lax in performance, she failed at upholding the duties of her office. That, not her connections to GMA, not the suspicions behind her actions or her misreadings of the law, is what this is about.

    And that should worry politicians. If they are thinking clearly and strategically, this move to question, quantify and address the actions (or inactions) of a government official, should deeply concern them. Because, even in the best of language and most forgiving of spirit, we can only say our politicians have been barely adequate. What happens to them if the people of this country actually start demanding accountability? And not just the accountability of popular movements, a’la EDSA, but an accountability based on the day to day execution of their legal duties?

    Ah, well that should scare them. If the Filipino people actually begin to believe in accountability, then the free-ride will be over. And they, why they, may actually have to start working for us. Like they never have before.