Judging Estrada

It is widely speculated that the Sandiganbayan will finally rule on the plunder case of former President Joseph Ejercito Estrada within the next few weeks. “Erap” has been in detention for the past six years.

Many are convinced the government has failed to prove its case, but nobody is betting Erap will be acquitted. Such is the nature of this case. The question, therefore, is not so much how the court will judge Estrada, as how the people will judge the court that will judge him.

The court ruling must not simply satisfy the law. It must above all satisfy the society’s public conception of justice. Justice, according to Rawls, today’s leading commentator on the subject, is the first virtue of social institutions, just as truth is the first virtue of systems of thought.

Many people believe Erap’s case is purely political; that Estrada is in jail because Mrs. Arroyo is in Malacanang; that had Estrada agreed to sign a letter of resignation and leave the country after he was driven out of office on January 20, 2001, he could be sunning himself by the sea in Sta. Barbara, the French Riviera, or Cancun.

Many will not accept anything short of an acquittal. But an acquittal completely destroys the basis of Mrs. Arroyo’s climb to power, so it is completely out of the question. A conviction is inevitable. Now, of what charges will Estrada be convicted? If he is convicted of plunder, the people will want to be satisfied on what evidence is he being convicted of that crime? If he is convicted of a lesser offense, the people will ask, why was he ever accused of a non-bailable offense if all the government could prove was a much lesser offense?

A partial acquittal will not please Estrada’s supporters at all. It will only confirm the sordid capriciousness of the charges, and justify their demand for retribution. Convicting Estrada on all the charges, on the other hand, would not only show the brutish nature of the regime but above all provoke possible violence among his supporters, and set the standard by which Mrs. Arroyo’s prosecutors could deal with her when her time of reckoning comes.

It is beginning to look like a win-win situation for Erap, and a lose-lose situation for Mrs. Arroyo. If acquitted, Erap wins; if convicted on any of the charges, he becomes a political martyr. For Mrs. Arroyo, it is like going to Iraq without an exit plan. The only possible way out, it appears, is for her to dribble the case, if that could still be legally done, and delay the sentencing until she leaves Malacanang. The court could then acquit Estrada without a political upheaval that could sweep her away to kingdom come. But this would mean delaying the judgment by two and a half years, and justice delayed is justice denied.

Mrs. Arroyo’s dilemma on how to end this case is the clearest proof that there is nothing right about the jailing of Estrada. The Sandigan justices share this dilemma. Being part of the regime that seized the presidency from Estrada, they cannot possibly return a verdict of not guilty. That would strike at the foundation of the regime and call to question their participation in it.

Thus, the question is no longer how the justices will judge Erap but rather how the people will judge the justices. The law and those who enforce and interpret the law have long become suspect. But justice requires that the law be above suspicion--- in its formulation, in its interpretation, in its enforcement and administration.

As Pope Benedict XVI points out in his celebrated exchange with the German philosopher Jurgen Habermas, the strength of the law, not the law of the stronger, must always prevail. Suspicion of the law, revolt against the law will arise, he writes, when law itself appears to be no longer the expression of a justice that is at the service of all, but rather the product of arbitrariness and arrogance of those who have the power to use the law on others for their own ends.

The use of several thousand troops, as announced, to suppress any spirited reaction to the verdict will demonstrate not the strength of the law, or the justness of the sentence, but rather the law of the stronger. It could suppress any spirited reaction, but it cannot possibly quench the outrage and spirit of rebellion that might consume the hearts of those who believe justice has once again been stepped upon, and that it cannot go on forever.

Albert Camus has said that injustice can only be allowed to go so far; that a point is reached where even the slave in chain must rebel. Mrs. Arroyo is understandably concerned that the verdict on Estrada does not provoke a military coup; we should be concerned that it does not mark the beginnings of a real uprising, or a civil war.

Investigating President Arroyo

The nation pines for the truth, the whole truth, and nothing but the truth about the reported cheating in the last presidential election. But the Senate decision to constitute itself as a “Committee of the Whole” to investigate Sen. Panfilo Lacson’s privilege speech on the 2004 “Garci tape,” which contains telephone conversations between President Gloria Macapagal Arroyo and former Comelec commissioner Virgilio Garcillano during that election, cannot possibly be the way to do it.

The Committee will allow the Senate to investigate a sitting President without her having first been impeached by the House of Representatives, and without the Senate having been constituted as an impeachment court to try and decide the case against the President. We may dispute or deny Mrs. Arroyo’s claim to the presidency, but the Senate decision vaporizes the principle of separation of powers and creates a first-rate constitutional crisis.

What this offers is a tragic repeat of what happened in 2000 when the Senate blue ribbon committee under Sen. Nene Pimentel and the Senate justice committee under Sen. Rene Cayetano, the late father of the senatorial siblings Alan Peter and Pia Cayetano, investigated then President Joseph Ejercito Estrada on the basis of then Senator Teofisto Guingona’s “I accuse” speech --- in violation of said principle, as painfully pointed out by the Senate Majority Leader whose constitutional objection was completely ignored by the other senators.

In Estrada’s case, it was just the two committees that did it. In Arroyo’s case, the entire Senate, sitting as one committee, will do it. As a rule, no sitting President may be investigated, except in an impeachment complaint filed before the House, which has the exclusive power to initiate all cases of impeachment. Only after the President shall have been impeached, may he or she be tried by the Senate, which has the sole power to try and decide all cases of impeachment. Outside of this process, the Senate may not investigate a sitting President of any alleged offense.

It matters not whether the President has a 100-percent, or a sub-zero acceptance rating from the public. The principle of separation of powers must be defended and preserved, if the three coequal and coordinate branches of government are to continue functioning under a system we call constitutional, republican and democratic. Those who had a hand in injuring the system under Estrada, if they are still part of the Senate, have a real duty to make sure it does not happen again, even if it involves a President whose legitimacy they dispute. An attack on Mrs. Arroyo, no matter how justified, must not destroy the institution of the Presidency or the Senate itself.

In 2000, Estrada left the unconstitutional attack on the principle unchallenged. That saved the nation from constitutional crisis. But it also facilitated his impeachment and his ouster in the middle of his impeachment trial, following the prosecutors’ contemptuous walkout. And it completely deformed the senators’ understanding of the separation of powers.

Mrs. Arroyo is not likely to imitate Estrada. She will most probably challenge the Senate. It is only to be hoped that she will not try to carry out the threat to arrest senators if they so much as play the Garci tape. That would be completely ludicrous.

The Garci tape entered the public domain on June 6, 2005 when Press Secretary Ignacio Bunye Jr. released it to the press, saying it was a “fake” and presented a “doctored” version which he described as the original and authentic tape. On June 10, 2005, NBI former deputy director Sammy Ong attested to the genuineness of the tape by identifying himself as its source, and naming ISAFP technician T/Sgt. Vidal Doble as the one who had made it. This had since been played in the House during the last failed anti-Arroyo impeachment bid.

Malacanang cannot possibly have the senators arrested for playing a tape that has been played so many times before to the public. The anti-wiretapping law, to begin with, was meant to protect the privacy of communications of private citizens, not public officials, especially if the latter are in the act of committing a crime or conspiring to commit a crime.

Lacson has added nothing new to the story, except to say that Doble, who had earlier denied making it, had now disowned his previous position, saying he could not make a clean breast of it earlier because the military had kidnapped his family and held them captive. Doble’s testimony will be challenged, but if it survives, it will finally lead to Mrs. Arroyo’s conversations with Garcillano. That has enormous value in our search for the truth. But the best place for airing it would still be in an impeachment proceeding that begins in the House, and ends in the Senate.

A constitutional embarrassment

Terrorism is real, and no one disputes the need to combat it. But Republic Act 9372, otherwise known as the Human Security Act, cannot possibly be the weapon for it. The law is unenforceable because its definition of the crime is incompetent, and many of its provisions are constitutionally flawed. It is an embarrassment.

There is as yet no universally agreed legal definition of terrorism. The United Nations uses an “academic consensus definition,” the United States, Britain and the European Union have adopted their own. RA 9372 attempts to provide a Philippine definition. But it is a non-starter.

Under this law, terrorism is committed when for the purpose of “sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand,” a person commits 1) piracy in general and mutiny in the high seas; 2) rebellion or insurrection; 3) coup d’etat; 4); murder; 5) kidnapping and serious Illegal detention; 6) crimes involving destruction; and six other crimes defined in four Republic Acts and two Presidential Decrees. The crime is punishable with 40 years imprisonment without the benefit of parole.

This immediately raises one question. If by ‘government’, the lawmakers mean the corporate entity, how does one coerce a corporate entity? If by ‘government’ they mean the system by which the state is governed, how does one coerce a system?

Terrorism is a technique. It uses violence or the threat of violence on innocent civilians, quoting the words of the USA Patriot Act, “to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping…” Whatever its motive (political, religious, or ideological), it is a means to an end, not an end in itself.

It is, therefore, wrong to say a person commits terrorism when he commits rebellion, insurrection, or coup d’etat. Someone will probably commit terrorist acts to ensure the success of his rebellion, insurrection or coup d’etat, but not the other way round. This is the known human experience.

The definition, therefore, cannot stand.

Now, to the text. There are 62 sections. Ten of these (from Sec. 7 to 16) are devoted to the surveillance of suspects by electronic and other means. Despite the inviolability of the privacy of communication and correspondence, guaranteed by the Bill of Rights, every private communication may be accessed and recorded. The only exceptions are those between lawyers and clients, doctors and patients, journalists and their sources, and confidential business correspondence.

Nothing is said about conversations between a confessor and a penitent, or between an individual and his or her spiritual director. All recorded communication of a suspect may be used as evidence against him upon authority of the Court of Appeals.

The law makes no distinction between “a person charged with the crime of terrorism” and “a person suspected of the crime of terrorism.” In Section 39, all their “bank deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature shall be seized, sequestered, and frozen in order to prevent their use, transfer, or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.”

The law does not require any showing or allegation that the properties, monies and holdings are being used by the suspect or accused to commit his alleged crime, nor does it require that the evidence of their being used for that purpose is sufficiently strong before they are sequestered and frozen. If the accused is finally convicted, then all his properties are forfeited, even if he was never charged of using them to commit his crime.

Section 1 of the Bill of Rights provides: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” This is now vaporized. All that a regime has to do is to suspect someone of terrorism and he loses control of his business empire, if he has one.

To the best of our knowledge, no suspect may be detained beyond a few hours without being judicially charged. The suspension of the privilege of the writ of habeas corpus allows the authorities to detain a suspect for three days, but he must be released if he has not been judicially charged after that period.

Under the RA 9372, a police officer must deliver a suspect in his custody to the judicial authorities within three days, counted from the day of the arrest. But Section 18 says the officer shall incur no criminal liability for any delay in delivering said person to the proper authorities.

In case of an actual or imminent terrorist attack, suspects may be detained for more than three days upon written approval of a municipal, city, provincial or regional official of the Human Rights Commission or a judge of the municipal, regional trial court, the Sandiganbayan, or a justice of the Court of Appeals.

Who decides when a terrorist attack is imminent? The law does not say. What constitutional provision authorizes such detention beyond three days? What constitutional provision gives officials of the Human Rights Commission the power of judges? The law does not say either.

In case of acquittal, the accused shall be indemnified P500,000 for every day his properties had been sequestered, and another P500,000 for every day he had been detained, chargeable against the funds of the law enforcement agency that had filed the case or the Anti-Terrorism Council.

Sounds great, except that the provision is completely worthless. It is not a valid appropriation measure and cannot be implemented.

Terrorism is a transnational crime. Many governments have declared “war on terrorism”, although one author likens it to declaring war against the Blitzkrieg rather than against the Nazis. Will RA 9372 now be used to justify the permanent presence of foreign troops in the country even without the requisite basing treaty? Will it now oblige us to ratify the visiting forces agreement with Australia, and enter into similar agreements with Singapore, China, Russia, India, Korea, Papua New Guinea, Vanuatu and the small South Pacific islands?

The law must be beyond suspicion. This one is not.

Let our leaders speak now on Mindanao

The dramatic dispatch of thousands of troops to Mindanao and the even more dramatic order of the President and Commander-in-Chief to the Army Commanding General to move his headquarters to the war zone suggest that the war with the Moro rebels has entered a new phase that is foreign to us all, and whose outcome is wholly unpredictable.

It is a major development in the history of the conflict, and in the life of the Arroyo administration. Regrettably, there is no sign that the matter has won the serious attention of our political leaders, including those who believe themselves to be presidential timber for 2010. Not one of them has offered any idea on what should be done.

So many more will die in Mindanao. But the body count will not bring the war closer to its end until we find the courage and the good sense to realize that we cannot be at war forever in Mindanao. We must end it now.

From Marcos to Arroyo, every President has contributed his or her own errors in Mindanao. All of them seemed to believe that the conflict can be solved by military means. They also seemed to believe one could buy time by entering into agreements that can not be implemented, or which the government has no intention of implementing.

Whatever is the role of the armed forces, they do not deserve shabby treatment from the politicians. Their political leaders must never undermine their morale. Some of Mrs. Arroyo’s decisions, however, have undermined not just their morale. One such decision split the Southern Command capriciously into two ---the Western Mindanao Command in Zamboanga, in charge of the Moro rebels, and the Eastern Mindanao Command in Davao, in charge of the NPA rebels.

This was done for no apparently good reason, except to give two lieutenant generals two separate commands. The result is an absurd situation which has the effect of telling the troops of the Western command, “you will shoot at Moro rebels only,” and those at the Eastern command, “you will shoot at NPA rebels alone.” Totally lost is the fact that the Moro rebels and the NPA had long entered into a tactical alliance.

While the military counted 14 Marines killed in Basilan last July, and 26 killed in Sulu last week, no one has bothered to ask what kind of intelligence they were getting before they got killed. Obviously, very little or nothing. And why? Because the intelligence funds are habitually “converted” by their bosses? Or because PAGCOR, which does not have to fight a rebellion, has a much bigger intelligence fund than the Armed Forces of the Philippines?

These are just some of the issues which our “leaders” should be looking at. But sadly, they are not there, or they are not looking.

We need to solve the Mindanao conflict once and for all. And we need to do it now. I would earnestly propose that those who think they will be God’s gift to the nation in 2010 now try to justify their delusions by offering some ideas on what to do in Mindanao. Those who have nothing to contribute should permanently disqualify themselves, and withdraw from the swindle being perpetrated by the polling swindlers who are already talking of preferred “presidentiables” even before the people could get to say what kind of president they would need after GMA steps down.

Speak now, or forever be damned.

The war is real, the leadership is not

The death of 14 Marines –10 of them beheaded –in an ambush in Basilan last month, and the death of another 26 soldiers in two encounters with Moro rebels in Sulu last week are just too much to be treated simply as the unfortunate result of some tactical errors. Something completely unacceptable and stupid is happening in Mindanao, and our troops are paying with their dear lives. But no one is being held to account for it.

The nation deserves to know why the air cover in Basilan was pulled out; why the planes had to drop their bombs at sea rather than on the intended targets; and why there was no counter-attack. Without claiming any expertise in military affairs, we must reject the statement from the military high command that “persuasion flights” were sufficient in Basilan, and that dropping the bombs at sea rather than on their specific targets was part of the “persuasion flights.”

Some years ago, one famous persuasion flight stopped one daring coup attempt against President Cory Aquino. But it could not have prevented, and it did not prevent, Moro rebels from shooting the Marines and beheading 10 of them in Tipo Tipo. Dropping the bombs at sea could not have been part of the “persuasion flights” at all: the planes had to drop those bombs at sea, to avoid any possible accident upon landing at base.

The government turned tragedy into farce when it gave the Moro Islamic Liberation Front an ultimatum to surrender those who had beheaded the Marines, then allowed the deadline to lapse without waging the action they had threatened to wage; and when President Arroyo “angrily” ordered more troops into the area only after the Sulu carnage, makng it appear that anger, rather than clear thinking, now drives the policy in Mindanao.

Indeed, the nation deserves to know whether the decision to pull out the air cover was military or political. Was it done because bombing targets in Tipo Tipo would enlarge the Mindanao ‘war’ and scuttle the protracted peace negotiations between the government and the MILF? Is there any ground to believe that some peace negotiators were, in fact, in Basilan at the time, and that they had a hand in removing the air cover?

The situation in Mindanao is not pretty nor simple. But neither is it incomprehensible. There is an ongoing MILF rebellion, which the military is trying to contain, while the government is trying to talk peace with its leaders. Both sides had agreed to a ceasefire while the talks are ongoing. This was supposed to suspend hostilities, but it was not supposed to alter the law or the rules on self-defense or physical survival. If one is attacked, he has a right and a duty to counter-attack. And that decision must be made on the ground, not in some desk in Malacanang.

Who prevented the ground commander from ordering a counter-attack? Who was responsible for the ludicrous ultimatum to the MILF to surrender those who had beheaded the Marines, or else face an all-out war ---a threat which ultimately fizzled out upon reaching the deadline?

A counter-attack would have been the most normal response to the ambush. It would have affirmed the law of self-defense, and the authority of the ground commander. A retaliatory action, on the other hand, coming after another incident, had intervened, would now be seen as a political decision that puts at risk the viability of the negotiations. It would put the politicians above the ground commander. We must all appreciate this distinction.

Ultimately, the question must be asked: who is really running the war in Mindanao? The generals or Malacanang?

From Marcos to Arroyo, every President has tried to contribute his or her own errors in Mindanao. Some of them are just more monumental than others. Marcos was the first to use arms and diplomacy, but he was presented with a Tripoli agreement that was a virtual fait accompli, at a time when he was trying to fend off the threat of an oil embargo from OPEC.

Cory Aquino made the monumental mistake of arranging for the royal return of Nur Misuari from the Middle East, where he had exiled himself, after Marcos had succeeded in reducing the Moro National Liberation Front to a mere ghost of its former self. She crowned that error by meeting with Misuari inside his own tent in Jolo, treating him as an equal, and allowing his own security personnel to frisk the President’s aides, including the Secretary of National Defense.

Fidel Ramos contributed to this error when he entered into a new agreement with Misuari, recreating an autonomous region for the MNLF, over the objections of so many Mindanaoans, and without taking into account the emerging problem of the MILF.

Joseph Ejercito Estrada tried to pulverize the MILF by taking over Camp Abubakar, despite the formal appeal of US President Clinton to give the peace process a chance, and not to launch the military offensive.

Mrs. Arroyo returned Camp Abubakar to the MILF and initiated her own negotiations with the rebels. But she also undermined her own effort by splitting the Southern Command into two separate commands: the Western Mindanao Command, based in Zamboanga and in charge of the separatist rebels, and the Eastern Mindanao Command, based in Davao and in charge of the communist rebels.

That formula has not worked. Now Mrs. Arroyo has ordered the Commanding General of the Army to move his base to Mindanao and lead the campaign against the Abu Sayyaf (suddenly it is no longer the MILF, but the Abu Sayyaf). That order has produced one headline, but no one knows if it will produce the necessary leadership. And that above all is what is needed.

The war in Mindanao is real, but the leadership on display is not. From Manila to Mindanao, the whole idea of government has become a mockery.

An independent and irrelevant Senate

Against all odds, the Senate has shown its independence, brags an aide of Senate President Manny Villar. This is beyond cavil: the Senate has become truly independent ---independent of its own rules and tradition. This we owe to Villar and his peculiar way of doing things. After convening the Senate’s inaugural session on July 23, 2007 without any legal authority to do so, and getting away with it, Villar has now put the most controversial neophytes in charge of the most important committees, and apparently hopes to get away with it too.

How this came about is not easy to swallow.

First of all, the senators slept through the inaugural session when Villar claimed the office of Senate President before he was reelected to the position which he had inherited from Senate President Franklin Drilon in the last part of the 13th Congress until June 30. The illegal assembly, and the falsification of the official record of its proceedings, are now part of Senate history.

Then only a couple of administration senators woke up to question the highly questionable process of filling up the committees. As members of the majority bloc that elected Villar to his post, Senators Joker Arroyo and Richard Gordon tried to question the process, but found no support even among their own coalition colleagues on the floor.

The choice of committee chairs is an exclusive affair of the ruling majority. This is normally discussed among its members in a caucus of the majority. But Villar got rid of that process, too. He apparently discussed the chairmanships with only three or so of his colleagues, and then sprang his choices on the floor as a fait accompli.

Under the Rules of the Senate, no objection against the proposed membership of any particular Senator in any permanent committee shall be considered, whenever such a motion is presented. Objections, however, may be raised against the proposed membership as a whole. And there are other ways of forcing the Chair to defer the matter until after the majority shall have met in caucus.

But not all the members of the majority bloc were in the hall at the time, and neither Arroyo nor Gordon had the sufficient parliamentary skills to derail the process.

Still, the senators cannot just throw in the towel and leave everything at the mercy of their new honcho. They must find the courage to rethink their choice of Senate President before the rest of the nation begins to rethink the value of keeping the Senate.

As a former senator who had the opportunity of serving as chairman of the Committee on Rules and therefore as Senate Majority Leader through five changes in the Senate presidency, I may have spoken more extensively than any sitting senator against the attempt to abolish the Senate in 2006. Today, I do not believe I would have the courage to speak in its defense. I could not even bring myself to attend its opening session last July anymore. The Senate has become a real embarrassment to those who once associated it with honor and dignity.

Giving Alan Peter Cayetano the “blue ribbon” and education committees at the same time speaks volumes about the self-worth of the Senate autocracy. The young senator is bright, articulate and charming, but he is a first termer and has a serious moral flaw.

In the House of Representatives, no first termer gets to chair a committee, even if he happens to be a veteran legislator who had served two full terms as senator. In the Senate, where there are more committees than senators, a first termer who belongs to the majority could end up chairing a committee. But certainly not blue ribbon, education or ways and means, especially if there are senior senators to choose from.

In addition to being a neophyte, Cayetano ran in defiance of the constitutional ban on political dynasties on the strength of the technical argument that no enabling law has been passed to enforce the constitutional prohibition. But with or without an enabling law, the moral principle is clear: this Senate of 24 members represents a nation of close to 90 million Filipinos, or approximately 18 million families.

Any family should be honored to have one of its members sitting there at any time. More than honored if one of its members gets to sit there from one Congress to another. But by what right should any family want to have more than one of its members sitting there at the same time while close to 18 million other families are not represented? And what duty do the people and the Senate have to put up with it?

The fact that Alan Peter was elected by people who either were not aware of or did not give enough importance to this objection does not invalidate the moral principle. On the contrary, the objection acquires greater validity every time we see Alan Peter and his sister Pia sitting together on the floor as senators.

This involves a basic question of justice---of not wanting to claim for oneself more than what is one’s due, or more than what is due others. Obviously Alan Peter takes the opposite view, and we should have no illusion about it. But if one is not prepared to recognize and respect this basic moral principle, under what principle of justice will he operate in the discharge of his simplest duties as senator and as committee chair? What standard of justice will govern his blue ribbon “investigations”? And what moral principles will inform his words and actions when he begins to talk about education? Will everyone be sufficiently assured or distracted every time he quotes Scripture?

The burden of the Senate is not lesser than Alan Peter’s. In awarding the neophyte senator two major committees whose work is grounded on basic moral principles, is not the Senate setting a dangerous and destructive precedent? Is not the Senate consecrating the proposition that it is all right for anyone to run for the Senate in violation of a constitutional ban and a moral principle, and that his election wipes out the violation, even if there was no showing that the people had voted for him in full awareness of the constitutional and moral principles involved?

Obviously the Senate cannot turn out any elected member without due process; but it ought to be able, at the very least, to make certain distinctions about the moral qualities and fitness of its members, and then to farm out committee assignments, guided somehow by those distinctions.
Alan Peter and Pia are charming siblings. No brother and sister team could possibly be more charming. If you throw in Alan’s congresswoman-wife, you would even have a greater charmer. But if Pia Cayetano were to resign today in order to remove this moral cloud above the head of her brother, it could be an occasion of enormous rejoicing. That may not yet qualify Alan Peter for a major committee, but it could help project him as a young man with a real future. It might even help Manny Villar keep his present post, and his presidential ambition for 2010.

Losing our sense of purpose

It is the prevailing view that bad government is at the root of our prolonged crisis, and that if we could but replace the knaves and scoundrels who write, interpret, and enforce our laws, we shall all be living in an earthly paradise. So much of this is true, but it is not a simple question, and it is best to approach it humbly and cautiously.

Every government is a product of society. The men and women who enter government are first born, raised, educated or mal-educated in society; it is the society that provides the raw materials for government, not vice versa. No government has values of its own; these are supplied by the men and women who constitute it. Thus, bad government is first a consequence of a corrupt society before it is the cause of further corruption of that society.

That we must replace unprincipled, corrupt, and incompetent men and women in government is not open to debate. But the society must be able to provide the suitable replacements for them, men and women who are principled, incorrupt, virtuous and competent. They will probably not nominate themselves; they will have to be chosen by responsible political parties before they are chosen by the people themselves.

Do the parties and the people have the competence to make the proper choice? Can they tell the good from the bad, the worthy from the unworthy, the genuine from the fake? Are they capable of, or at least interested in, setting up standards and criteria to make sure they choose only those who have all the qualifications and none of the disqualifications for the office they seek?

Our cumulative experience does not encourage us to answer in the affirmative.

Our political parties and our people do not specify what kind of leaders they need, nor do they exact non-negotiable demands on those who seek public office. It is always a popularity contest. They tend to wait for the big propaganda swindlers to tell them who among the ambitious incompetents are the “most popular” and, therefore, “worthy” of their support before they make their move. They then repeat and spread the propaganda they have heard, and fall in line behind the living product of media spin and hype of the propagandists.

I once suggested that government should be run by patriots who understood what society is all about, what the state is for, why government exists, and what is meant by the law being a “rationis ordinatio ad bonum commune ab eo qui curam communitatis habet promulgata---a rational ordering of the common good made by him who has the care of the community and promulgated.” And very quickly I was reproved by a much more practical man who said that “we live in an imperfect world, and we can only have imperfect choices.”

That remark goes a long way to explain why we are in such a mess. We disdain ideals, and we abhor standards. We begin by coping out. We do not aim for the highest we can possibly achieve; we aim for the lowest. The vanishing European child is encouraged to communicate in several languages from birth; the Filipino child is told his brain is too small and his tongue too short to speak more than one language. Even the educated adult cell phone owner induces himself to believe that he can only communicate in idiotic ‘syllabytes’.

In our search for leaders, we are always looking for the lesser evil, or the least worst of the pack. It has never occurred to us to aim a little higher, and demand that we be led by someone who is clear-headed about the truth about man and about God, who understands the human condition as one should, who has the moral and intellectual courage to stand for what is right, and the competence to address complex issues.

We tend to assume that all politicians are unprincipled, opportunistic, adulterous, and corrupt, so we no longer bother to look for those who are faithful to their principles, to their families and to their God, who have not sold themselves to the Devil or to some local or foreign interest, and will not sell their souls for the spoils of public office. We give up all hope of ever finding the Holy Grail even before we begin the quest.

We insist on what is right only when it does not work against our self-interest or demand any personal sacrifices. Our normal impulse is to set aside, evade or at least rewrite, every rule we meet, dilute and water down anything demanded of us, and expand the scope of every little privilege we get. We denounce something objectively wrong as wrong only when people we do not like do it; otherwise we will defend to the death our “right” to do it ourselves.

Legislators, law enforcers and judges are not the last ones to break the law. And all we do is watch in silence and wait for the day when we, in our own way, could imitate the abuse which we, in principle, disapprove. So instead of demanding equality before the law, we simply demand equality to disobey the law. And we spend six years complaining about a corrupt and rotten President only to replace him or her with someone as rotten, if not worse.

During one of Argentina’s worst economic crises, when no president seemed able to survive beyond a few days, the country had to appeal to its most qualified citizens to lead it. The most eminent ones were approached, but almost every one declined, fearing they were not equal to it. In sharp contrast, we seem to have an unnatural excess of ambitious trapos who are so eager to nominate themselves, even though they have long become part of the problem whose solution they have not the slightest clue about, and to which they have nothing to contribute. They all seem to believe that so long as they have the money, whose origin they need not explain even to the taxman, they should be free to nominate themselves, even if nobody else does.

Nothing will change much until the silent majority stops being silent and the elite stops being amoral, irresponsible and opportunistic, and both of them begin to concern themselves with the degeneration and decay of our institutions and values. Until the society as a whole recovers its sense of right and wrong, of good and bad, of what is sacred as against what is profane, of the supernatural as against the natural, the future of bad government is assured, and we shall continue to blame all our ills, moral, social, economic and political, on those who preside over it.

Indeed, our problem today is not only that we can no longer take government seriously for having no direction and being hopelessly insensitive, incompetent and corrupt. That alone is a monumental problem in itself, but infinitely bigger and more fundamental is the fact that the society has lost, or is no longer able to articulate, its sense of itself.

A general feeling of boredom, ennui, and malaise has enveloped the nation’s visage and corpus, and drained the individual and the society at large of all energy, purpose, and resolve. It is a moral storm, before it is anything else. The ship of state is lost in that storm: it is in the high seas and there is no landfall in sight; it has cast its compass overboard, and is rapidly getting water-logged; but its captain and crew are busy rearranging the chairs on the deck, in the grand tradition of the Titanic.

Villar agonistes

If Senate President Manny Villar looks in agony these days, it could only be because of what’s happening and what’s not happening in the Senate. There are at least two issues that could account for his present torment.

First of all, the Senate opened its regular session by violating all the rules of parliamentary procedure. The inaugural session amounted to an illegal assembly, for having been opened by Senator Villar without any legal authority to do so. The Body effectively legalized what was illegal when nobody, not even the minority, questioned it. Still, the Senate Journal consecrated the violation by saying Senate President Villar opened it when there was no Senate President Villar to open it.

The future researcher who reads the Journal of July 23, 2007, without having read my blog on it, will normally assume that the Senate session was opened by Senate President Manny Villar in the normal exercise of his duties. He will not know that Villar’s position as Senate President of the 13^th Congress had already ended, and that he had not yet been reelected to the same position in the 14^th Congress when he opened it.

This is not a minor blow to the Senate, or to the Journal of the Senate, or even to the self-indulgent press, which reports all sorts of inanities but unanimously suppressed all mention of it. Since then one morning paper has devoted some space to some heckling by Sen. Joker Arroyo, master heckler of the house, against Senate President Pro Tempore Jinggoy Estrada when he temporarily presided over the session the other day. But neither the joker nor his customary chronicler had said anything about the atrocities inflicted upon the Rules on the opening day of the 14^th Congress.

Congress is a rules-based assembly. Its Rules, not its perks, are its most important property. Every apparently minor violation of these Rules is a major offense, especially if it affects the integrity of the proceedings.

For instance, the mere act of the Presiding Officer suspending the session motu proprio (on his own) because he had to go to the bathroom or answer an urgent telephone call is in violation of the Rules, which may not be taken lightly. The session may not be suspended even for a minute without a motion from the Floor. But if the Presiding Officer is permitted to suspend the session on his own whenever he wanted to pee, the Body will have become powerless to stop him if and when he suspends the session because he wanted to pee on the Chamber itself.

This was what happened in that rowdy session of the House of Representatives on Nov. 13, 2000 when the Committee on Justice decided to recommend the impeachment of then President Joseph Ejercito Estrada.

Villar, who was then the Speaker, did not want to risk a floor debate. After he banged the gavel to open the session, he read the committee report into the record, ordered the Secretary-General to dispatch the Articles of Impeachment to the Senate, amid demands of order from the floor.

Then he unilaterally suspended the session without a motion from the Floor, in violation of the Rules. All hell broke loose; the congressmen fought for the physical possession of the Mace; but nothing more could be done. One apparently small violation of the Rules ---a unilateral suspension of the session, which the Speaker habitually did whenever he wanted to pee --- did it.

In the Senate inaugural session, the first act of the illegal presiding officer was to suspend the session without a motion from the floor, after the anthem and another song had been sung by the Las Pinas Boys Choir. Nothing more happened. But unless such malpractice is checked, something as bad as the House session of Nov. 13, 2000 could occur one day, and the senators, even if awake, would be unable to stop it.

The second issue has to do with the unresolved conflicts involving the Senate committee chairmanships. These will not be easy to resolve, especially if some senators have begun to see the rapidly receding public support for their totally unprincipled and opportunistic politics. On the contrary, the situation could get worse. The possibility of an unexpected revamp cannot be totally discounted. The political equation could change overnight.

The apparently critical issue is the chairmanship of the so-called Blue Ribbon Committee, which Joker chaired in the last Congress, and which the original opposition majority, which Villar’s new coalition had since reduced into a new minority, now wants to control. Jinggoy has threatened to resign as President Pro Tempore if an administration senator ended chairing the committee.

This is surprising to many. This seems to suggest that Jinggoy did not expect the administration to control the coalition that is made up of nine administration senators, two pro-administration independents, and only four publicly compromised oppositionists.

The only nominally opposition senators who could aspire to chair “Blue Ribbon” are Senators Francis Escudero and Alan Peter Cayetano. But although the Senate has more committees than senators, “Blue Ribbon” is seen as too major a committee to give to a neophyte. Of course, the billionaire Manny Villar was a first termer when he first became Senate President, so nothing prevents the senators from rising above seniority, tradition, or common sense. But none of the others have appeared on Forbes magazines’ billionaires’ list, and the administration will still have to agree to such arrangement, in any case.

Some may want to reconstitute the Senate majority with or without Villar as head. This has interesting possibilities. The administration has nine senators, plus two supportive independents, or a total of eleven. The opposition has eleven also, assuming Villar’s group of four will go back to the fold. To elect a new President, they would still need a simple majority of 13 votes (computed on the basis of 24 senators, not 22). Either side will need to win over two “winnables”---this is one time you could correctly use this long bastardized word --- from the other side.

One thing that should never happen but could, should someone ever want to try it, is for the Senate to declare all its elective positions vacant and then fail to elect a new set of officers. The positions of Senate President, President Pro Tempore, Secretary, and Sergeant at Arms would have been vacated, but with the Chairman of Rules (and in virtue thereof, Majority Leader) and all other elected committee chairs, if any, intact. But with neither side able to win over two “winnables” from outside, the Senate Majority Leader becomes the Acting Senate President, under the Rules.

If that happens, Senator Kiko Pangilinan would have earned the grand prize of his life simply for routinely flubbing the Rules of the Senate.

The Senate without Trillanes

I did not have the wisdom to vote for Sen. Antonio Trillanes IV in the last election, but I am not happy that the Makati Regional Trial Court has ruled he may not attend the sessions of the Senate. I would have wanted to see how he would make good his promise to make life unbearable for the Arroyo administration –something the entire Senate opposition has so far failed to arrange.

The court’s ruling completely ignored a non-binding resolution expressing the sense of the Senate that Trillanes be permitted to leave his detention cell, as an accused mutineer, in order to attend the sessions. The court could have granted Trillanes’s petition on the reasonable presumption that his election to the Senate has reduced, if not completely eliminated, the risk of flight from the court’s jurisdiction. But it decided to assert the principle of separation of powers.

This is a disappointment to those who had voted for Trillanes in the mistaken belief that if elected, he would be free to function as a senator. But it provides the political parties and the nation a lesson they should never forget. No responsible political party or group of parties ever runs a national candidate who may not even be able to sit, even if elected, because of a serious political or legal problem. No responsible voter assumes that by voting for such a candidate he would be freeing him from his problem.

The Trillanes case may not be likened to the case of Ninoy Aquino who ran for the interim Batasang Pambansa from his detention cell in 1978. It is not even in the same class as that of his current or former idol Sen. Gringo Honasan who also ran while still under detention for having allegedly masterminded the 2003 Oakwood mutiny, where Trilllanes had such a highly publicized role.

Ninoy Aquino was already a pillar of the opposition when in 1972 then President Marcos declared martial law and jailed many opposition leaders. His running for the Batasan was not merely the solitary act of one jailed politician; it represented the collective will of the entire opposition. They wanted to show Marcos that the opposition was alive and well, ready to confront him in any political contest, even from inside a detention cell.

Honasan, for his part, had been senator at least a couple of times before. He does not have Ninoy’s record, nor did he have the support of the “Genuine Opposition.” He ran as an “Independent” after GO had refused to consider him. But he ran to win, not just to make a political statement. Such was his luck and charm that he had his court case dropped and he won a new term without having to break any bones.

Trillanes’s case is different. He was a Navy lieutenant senior grade detained for his alleged role in the Oakwood affair. He did not belong to the political opposition, although many of its members would probably have joined the parade if Oakwood had led to a regime change. He did not expect to win, and nobody else did. But his victory was the most solid protest vote against the Arroyo administration. It also exposed the long continuing con game of the propaganda pollsters.

Some senators have wondered why while Honasan has been cleared of the charge of masterminding Oakwood, Trillanes, who merely tried to look telegenic, remains in military custody, deprived of his rights as a new senator. This is unfair to Honasan and to our “justice system.”

The case against Gringo was dropped because, according to the Secretary of Justice, the evidence against him was not strong. Had any of his co-accused declared that Honasan was indeed their mastermind, the case might have taken a different turn. But none of them ever made that claim.

Now that the court has spoken, one small housekeeping question remains. Does Sen. Trillanes get to collect the salary and other emoluments of a senator? Does he get to hire a staff? Does he get to be nominated to any committee at all? If he does, what happens to the principle that one must put in actual work for one’s wages? If he does not, what happens to the principle that no elective official may be deprived of the compensation due his office?

With Trillanes on forced leave, and Fred Lim becoming mayor of Manila, the Senate of 24 members has been effectively reduced to only 22 members. We don’t have the time or space for all its implications, but we can talk for now about the Senate representation in the Commission on Appointments (CA).

One newspaper reports that Malacanang has directed its Senate allies to make sure the Senate opposition does not dominate the CA. If that account is correct, it is certainly harebrained. The CA is a constitutional body consisting of the Senate President as ex-officio Chairman, twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system.

Every two senators belonging to the same party are entitled to one seat in the CA, usually on a term-sharing arrangement. With only 22 actively sitting senators, the Senate can only nominate 11, rather than 12 CA members. How to redo the arithmetic in order to produce 12 CA members from only 22 voting senators is the real problem. Can senators who cannot seem to follow the most fundamental rules of parliamentary procedure arrive at the correct solution to this problem?

Regardless of the present mixup that has arisen from post-election maneuvers related to the Senate presidency, nine senators belong to the administration, 11 to the opposition, and two are “independent.” Under the existing formula, the 11 opposition senators are entitled to five and a half (5.5) seats; the nine administration senators, to four and a half (4.5) seats; the two “independents,” to one seat. Since there are no one-half seats, the practice is for two one-half seats to combine in order to form one seat under a term-sharing agreement.

It is, therefore, unavoidable that one administration senator and one opposition senator will have to combine to take one seat, under a term-sharing arrangement. If the opposition senator takes the first half of the term, this would mean its having a total of six seats, as against four seats for the administration. If the administration takes the first crack, it would have five seats, as against five seats for the opposition. If the lone “independent” member aligns with the administration, the latter would effectively have six seats. The total would still be 11, rather than 12 members.

But the more important point is this. In the CA, one member alone can derail action on any presidential nomination simply by invoking a section of the Rules which compels the Body to call off any voting until the last session prior to the adjournment of Congress. So, while numbers always count, the real key to a good batting record in the CA is the quality of presidential nominations.