So Many Things We Owe Our Justices

Washington, DC----With the Philippine Supreme Court ruling on executive privilege (Neri vs. the Senate Committee on Accountability of Public Officers and Investigations et al), President Gloria Macapagal Arroyo, despite continuing calls for her resignation, may have become the most powerful president around. And the SC, the most culpable and complicit Supreme Court anywhere.

The Constitution empowers the two Houses of Congress and all their committees to conduct inquiries in aid of legislation, and to require the heads of departments to answer questions on any matter pertaining to their respective departments. The Constitution does not authorize the President or any department head to withhold any information from Congress.

To safeguard certain secrets, however, the Constitution grants the Executive the privilege to withhold such secrets in a public hearing, and to convey the same to Congress or its committees alone, after the public has been excluded. Thus, Section 22, Article VI of the Constitution provides that, “when the security of the State or the pubic interest so requires and the President so states in writing, the appearance [of department heads] shall be conducted in executive session.”

“Executive privilege”, therefore, allows the President to tell Congress or any of its committees that “the information you seek involves national security or the highest national interest and may be shared only under the strictest confidentiality in an executive session.” Congress for its part has the duty to make sure that the information is sought for compelling reasons, not simply to indulge any desire for political voyeurism.

Under the SC ruling, Cabinet members may no longer have to answer any question from Congress on any controversial issue involving the Office of the President. All they have to do is to invoke executive privilege, and Congress can go no further to oblige them to say anything to either House or any of its committees.

This has the effect of revising the Constitution. It effectively denies and destroys the right of Congress to inquire into sensitive matters involving the Executive, shreds off the principle of check and balance, and reduces Congress to an inferior branch of government, while making the Executive a part bigger than the whole.

The Justices labor to make a false distinction between hearings in aid of legislation and those related to the exercise of Congress’ oversight function. They make the highly questionable claim that Congress may compel the Executive’s participation in one, but not in the other. They forget that the Executive and the Legislative are two co-equal and coordinate branches of government: one may not compel the other to do anything, but a “request” by one may not be denied by the other, especially if it is written in the Constitution.

The SC ruling goes further to propose that inquiries in aid of legislation be linked to specific proposed legislation, and that the majority of a committee that imposes sanctions on a witness be physically present at the hearing when the offense is committed..

This is most surprising. No inquiry in aid of legislation is normally conducted on a specific bill simply because every bill is referred to a committee, which conducts hearings on the same. As to the other issue, one-third of a committee constitutes a quorum, all the other members may or may not concur in the committee recommendations later. To insist that the majority be present when the offense is committed is to render the committee powerless to punish any contempt unless the majority is present. In any case, the rules of Congress are not subject to ratification by the SC or the Executive..

Like it or not, the SC ruling reinforces our people’s worst fears about our Justices. Many are beginning to feel that Mrs. Arroyo’s sins will soon pass away, but the sins of the Justices will continue to inflict grave injury upon the country long after they are gone.

The ruling on executive privilege is but the latest sin.

In 2001, in Estrada v. Arroyo the Justices ruled that Mrs. Arroyo had become President after Joseph Ejercito Estrada had resigned “constructively,” despite the absence of an official resignation. This was no favor to Mrs. Arroyo or anybody. It merely created the legitimacy problem which haunts the entire nation to this day. How do you teach it now in law school? How do you defend it before the bar of history?

Again in 2003, the Justices interpreted the constitutional provision on impeachment while then SC Chief Justice Hilario Davide, Jr. was facing certain impeachment. They saved Davide, but they completely destroyed the impeachment process.

The Constitution provides that the House of Representatives shall have the exclusive power to initiate all cases of impeachment, and the Senate the sole power to try and decide such cases. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

This means that within one year the House shall not initiate. impeachment proceedings in the Senate against anybody who had been subjected to such proceedings before. The Justices, however, interpreted it to mean that no one may be subjected to a second complaint for impeachment, even if the first one had failed to develop into an impeachment proceeding initiated exclusively by the House..

So one can now avoid being impeached simply by causing a nuisance complaint to be filed against oneself. Once that is thrown out for lack of merit, one may no longer be subjected to a serious complaint for at least one year. After which, the process is simply repeated. This formula is good not only for the incumbent but also for the next President, and the next and the next. All this we owe to our Justices.

For RP Bishops, the best and the worst of times

The Church is the assembly of the people of God, incorporated into Christ through baptism. Both visible and spiritual, human and divine, it subsists in the Catholic Church as a society structured with hierarchical organs, and composed of the clergy, the laity, and the religious.

The Catholic Church is headed by the Roman Pontiff as successor to Saint Peter, Bishop of the Church of Rome, head of the College of Bishops, the Vicar of Christ, and Pastor of the universal Church here on earth. He fulfills his office as supreme Pastor of the Church always in full communion with the other bishops. Together, they form the college of bishops.

By divine institution, Bishops are successors to the Apostles. They are constituted pastors in the Church, to be the teachers of doctrine, the priests of sacred worship, and the ministers of governance. By their episcopal consecration, they receive the offices of sanctifying, teaching, and ruling, which they are to exercise in hierarchical communication with the Pope and the other Bishops.

They are called diocesan Bishops when put in charge of a diocese; otherwise they are called titular Bishops. They are bound to teach and illustrate to the faithful the truths of faith which are to be believed and applied to behavior. They are to preach frequently and to ensure that the various canons on the ministry of the word, especially on the homily and catechetical instruction, are faithfully observed, so that the whole of Christian teaching is transmitted to all.

Everything you have read thus far is taken from the Code of Canon Law or the Catechism of the Catholic Church. None of it is the writer’s own. It is imperative that we start with an authoritative statement on what a Bishop is, and what he is supposed to do, before we examine certain concerns that have been expressed about them in relation to the political questions of the day.

This is not an easy time for Filipino Bishops. The country is predominantly Catholic, but its main staple is politics and graft and corruption its inexhaustible topic. Many people, both Catholic and non-Catholic, expect the Bishops to lead their political fight. They will damn them if they don’t; but many others will damn them if they do. The Bishops cannot choose one side against the other. They have to serve both, and they can do so only by doing exactly what the Church asks them to do.

Much of the grievance stems from the refusal of the Catholic Bishops’ Conference of the Philippines (CBCP) to join the call for President Gloria Macapagal Arroyo’s resignation in the face of alleged bribery in the now scuttled $329.5-million National Broadband Network (NBN)-ZTE contract. Exacerbated no doubt by the restrictions imposed by some Bishops on the use of the Holy Mass for the so-called “search for truth,” featuring the star witness in the Senate probe of the aborted NBN-ZTE deal.

My own objection to the Arroyo presidency long antedates that of her former allies who now want her head. I have written countless articles and at least two books since 2002 on the subject, and lost a Senate seat in 2004 for calling her illegitimate in all my campaign speeches. But I am not prepared to let the Bishops do what I must by right and duty do as a lay citizen.

It is for us lay citizens, not for the Bishops, to demand her resignation. The duty of the Bishops is to denounce evil wherever it exists. But they are not required to identify the evildoer, or prescribe his criminal or civil punishment. If the evildoer kneels before a Bishop in confession, the latter’s duty is not to send him to jail but to ask him to do penance, to restitute what he has stolen, and to sin no more.

The Church’s teaching is clear.

The Pastoral Constitution on the Church in the Modern World (Gaudium et Spes) says: “The Church, by reason of her role and competence, is not identified in any way with the political community nor bound to any political system, nor does she claim competence in proposing solutions to concrete political and economic problems.”

The Cathecism restates this with an added quote from Centisimus Annus: “The Church respects and encourages the political freedom and responsibility of the citizen.” “It is part of the Church’s mission,” the Catechism continues, again quoting Gaudium et Spes, “to pass moral judgments even in matters related to politics, whenever the fundamental rights of man or salvation of souls requires it.”

On June 2, 2001, in a gentle and fraternal rebuke to the Bishops for their active role in the ouster of then President Joseph Estrada, then Archbishop (now Cardinal) Jean-Louis Tauran, as Secretary for Relations with States for the Holy See and the Pope’s representative, restated the Church’s teaching with utmost delicacy and clarity, emphasizing the need for “prudence, discernment, and a firm anchorage in the role of the Church vis-à-vis the political community.”

“This is a fundamental point to keep in mind,” Tauran said, “if we have to avoid treading on legitimately established institutions and exposing the Church to accusations of political interference, compromising in the process the prophetic charism of the Church to denounce evil, the credibility of her preaching, and the force of her pronouncements.”

He reminded the Bishops always “to speak with well-pondered words and to act with utmost caution to keep clear of political manipulations,” and to remember that “the Church is Gospel-bound to exercise charity for all and at all times.”

However, the political temptation is strong. Well-meaning laymen and women are the first to drag the most vulnerable clerics into political issues, the resolution of which lies strictly within the laity’s exclusive competence. Very little respect is shown the fact that the Code of Canon Law expressly bans clerics---and religious---from partisan politics, public office, and business enterprise.

The most vulnerable clerics and religious end up believing that politics has become their mission and charism, and that they have specific concrete solutions to problems that are within the laity’s exclusive province. They call on laymen and women to obey them while they are in the act of disobeying Church law or doctrine.

This appears to be the case of clerics and religious reported to have defied the instruction of their Bishops not to use the Holy Mass for any political road show. Since high churchmen did it during the anti-Marcos campaign in 1986, and the anti-Estrada campaign in 2000-2001, activist clerics and religious can only look at the Bishops’ U-turn as proof that they had been coopted by Mrs. Arroyo.

In fact, the Bishops have merely decided to correct two historic mistakes and finally reaffirm correct Church doctrine.

The Eucharistic Sacrifice, says Canon 897, is “the summit and source of all worship and Christian life. By means of it the unity of God’s people is signified and brought about, and the building up of the body of Christ is perfected.” The Eucharistic celebration is “an action of Christ himself and of the Church” (Can. 899). The faithful, therefore, are to hold the blessed Eucharist in the highest honor (Can. 898).

Redemptionis Sacramentum, Instruction issued by the Congregation for Divine Worship and the Discipline of the Sacraments on April 23, 2004, declares:

“78. It is not permissible to link the celebration of Mass to political or secular events, nor to situations that are not fully consistent with the Magisterium of the Catholic Church. Furthermore, it is altogether to be avoided that the celebration of Mass should be carried out merely for show, or in the manner of other ceremonies including profane ones, lest the Eucharist should be emptied of its authentic meaning.”

“But what are the Bishops afraid of? We only want to celebrate a ‘Mass for Truth.’ Are they for or against the truth?” So goes the argument.

This is sophistry at its worst. The Mass belongs to Christ and the Church and may not be appropriated by anyone for his own purposes. The Mass is the memorial of the death and resurrection of Christ, who says, ‘I am the way, the truth, the life.’ The Mass is Truth. So not even the Pope will probably think of celebrating a “Mass for Truth.”

The Bishops deserve a vote of thanks for trying to uphold Church teaching which they had failed to do before. But they could have done a much better job in formulating our real moral concerns. They only needed to ask the right questions.

For instance: Is the law still an ordinance of reason promulgated by those in authority for the common good? The Bishops who have read St. Thomas should be able to take a clear moral position on this question.

How many among us still care to know the difference between truth and falsehood, good and bad, right and wrong? The Bishops need to ask to what extent the state’s effort to proclaim itself as the source of truth and law has contributed to this problem?

The Bishops are not called upon to decide who are guilty of corruption, plunder or any crime. But when a major corruption scandal shakes the nation they have a duty to find out whether the accusations are being answered, or due process is simply being manipulated and undermined to make sure the truth is never known.

HOW SHOULD WE READ THE BISHOPS?

This Holy Week offers us a break from the high-octane, open-ended Senate investigation of the scuttled $329.5-million National Broadband Network (NBN) -ZTE contract, and a chance to reflect on a pastoral letter written by 16 Catholic bishops from the Ecclesiastical Province of Manila, led by the Cardinal-Archbishop Gaudencio Rosales.

It is a welcome respite.

The April 2007 contract has been cancelled. So many allegations have been heard against individuals who were supposed to have received bribes. Since the Senate does not prosecute, legally qualified parties should now initiate the filing of formal charges. This will make sure the high-profile TV series ends in a real court case. This should also temporarily free our senators from investigative work and allow them to lunge into other issues that require a little less of their capacity to astonish their TV audience.

With respect to the bishops’ Palm Sunday message, “Towards a Morally Rebuilt Nation” was obviously meant to be a teaching document. It should be so received. And we should be free to raise questions if and when certain important points are not too clear or appear to have been omitted. Thus, this piece.

Let’s begin with the first sentence: “Today we are experiencing a social and political mess.” Another writer would probably have said simply, “We are in a mess.” To say “we are experiencing a mess” suggests the mess is inflicted on us by others. It matters not, by whom; enough that President Macapagal Arroyo is not being blamed for it.

“This, however, goes beyond the question of truth to the search for probity,” the letter continues. “Probity is about the integrity of all, the accuser and the accused.” But probity is one of the first fruits of truth; he has probity who has truth. Can we say we want to focus on probity, so we shall temporarily set aside our concern for truth?

The so-called “search for truth” has taken on the appearance of a political road show. It should not. It does not reveal its authenticity, nor fulfill its purpose, by vulgarizing the Holy Eucharist for political purposes, by turning front page headlines into political placards, or by converting every little assembly into a lynch mob. The search for truth is an integral part of “service to truth,” “service in truth,” or “service based on truth.” It should so remain. The search and the service thereof should define the very purpose of our moral, political and social life.

The bishops perform a real service in focusing on the Seventh Commandment---“Thou shalt not steal.” In the movie The Kite Runner, based on the New York Times bestseller of the same title by the Afghan writer Khaled Hosseini, there is a line which says: “Every other sin is a variation of theft. When you kill a man, you steal a life. You steal his wife’s right to a husband, rob his children of a father. When you tell a lie, you steal someone’s right to the truth. When you cheat, you steal the right to fairness. There is no act more wretched than stealing.”

This has no chance of replacing any teaching of the Church. But the bishops perform their prophetic role when they demand restitution as an absolute requirement for the forgiveness of sin against the Seventh Commandment. This entails not only the restoration of what has been stolen but also the resolve not to steal again. But is it doctrinally wrong, or simply politically incorrect, to say that stolen public office be returned to its rightful owner, as soon as the theft is known?

The bishops try to rise above the fray by confining themselves to general moral principles. They do not refer to the NBN-ZTE issue at all. But they slip inadvertently when they cite the 1976 Bataan Nuclear Power Plant (BNPP) project, as the biggest graft-ridden project of all. That may not be correct, for although BNPP did cost $2.3 billion, the “legal commission” paid to the agent, which was denounced as illegal, was only $18 million. The project itself was not known to have been overpriced, but it was mothballed for political, rather than scientific, reasons. A credible energy program was lost, and we suffered 10 to 12-hour daily power outages thereafter. In 2007, we finally paid our BNPP debt, without ever getting a single watt for it. This was the real scandal.

Recalling the chosen people’s crossing of the Red Sea and their entry into the desert Shur (Exodus 15:22), the bishops call on the faithful to live “the discipline of the desert” instead of going to the streets to seek political change. This is a powerful phrase, but it is not well explained, and could be lost in arcana. To many Filipinos, the Pharaoh is alive and well, and has not seen the last of the deadly plagues.

Would it be less fitting if we speak today not of Shur but rather of the unnamed wilderness, where Jesus fasted for forty days and forty nights? At the end of his fast (Matthew, 4: 8-10 tells us), the devil tempted him thrice. In the third instance, “the devil took him to a very high mountain, and showed him all the kingdoms of the world and the glory of them; and he said to him, ‘All these I will give you, if you will fall down and worship me.’ Then Jesus said to him, ’Be gone, Satan! for it is written, ‘You shall worship the Lord your God and him only shall you serve.’ “

Is this not the gospel we should share with those who have enthroned power, pleasure and money in place of the living God?

JUST WHAT IS AT STAKE FOR US IN THE SPRATLYS?

An article by Barry Wain in the January/February 2008 issue of Far Eastern Economic Review raises some troubling questions about the joint seismic undertaking of the Philippines, China and Vietnam in the Spratlys. It suggests that the government signed the agreement without consulting with its ASEAN allies, to the detriment of its territorial claim and regional cooperation, and in possible violation of the Constitution.

The question deserves to be examined in depth for its constitutional and strategic implications.

The Spratlys (Kalayaan to us) lie nearly halfway between the Philippines and Vietnam in the South China Sea, along the vital shipping routes that link the Indian Ocean to Vladivostok and carry through the Straits of Malacca East Asia’s trade to Africa, the Middle East and Europe. The area is claimed separately by the Philippines, China, Taiwan, Vietnam, Malaysia, Brunei and France.

Incidents had occurred there between the Philippines and China since the seventies. The most significant was the Chinese occupation of Mischief (Panganiban) Reef in 1995, followed later on by their takeover of Scarborough Shoal. Clashes have also occurred there between Chinese and Vietnamese troops. Manila believes in a peaceful solution to this dispute, and has tried to enlist the support of ASEAN and the United Nations in its effort. China, however, opposes the “internationalization” of the conflict and insists on a bilateral solution, with each of the other claimant-states.

Nevertheless, some take the view that the dispute should not bar the claimant-states from working together to exploit the marine and mineral resources of the area for their shared benefit. In a speech to the Senate on Nov. 10, 1992, I proposed that we exert every effort to get the claimant-states to conclude a treaty which would declare the Spratlys a demilitarized multilateral economic zone and establish a cooperative regime for the joint exploration, development, utilization, conservation, management and equitable sharing of resources. The Executive did not respond to this proposal.

China’s occupation of Mischief Reef in 1995 confirmed the necessity of a regime that would prevent a repetition of that incident. Yet it also made the effort to launch such a regime doubly difficult. Where diplomatic notes failed to elicit the necessary response, it became necessary for our government to explore other means. Thus, at the Asia Pacific Parliamentary Forum in Lima, Peru on January 11-14, 1999, I presented a resolution “regretting certain actions taken by certain parties that threaten the stability and peace of the South China Sea and calling upon all concerned to adhere strictly to the recognized principles of international law, notably the 1982 United Nations Conference on the Law of the Sea, and existing regional declarations on the South China Sea.”

This provoked what is probably the only known Filipino-Chinese exchange on this issue in an international parliamentary forum. The Chinese delegate explained that the Chinese presence on the Reef was not military, that the structures they had built there were purely for “humanitarian purposes” (to shelter fishermen in bad weather), and posed no threat to the freedom of navigation in the nearby sea lanes of communication.

Within ASEAN, the territorial conflict inspired a focused effort to craft a Code of Conduct for parties to such disputes. But without alerting its ASEAN partners, the Philippines on Sept. 1, 2004 signed with China an “Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea by and between China National Offshore Oil Corporation and Philippine National Oil Company.” Vietnam initially protested, but on March 14, 2005, decided to join the two parties, through Petro Vietnam, in a “Tripartite Agreement for Joint Marine Scientific Research in Certain Areas in the South China Sea.”

The agreement is said to cover 142,886 sq. kms. of the South China Sea, one sixth of which, according to the Review, forms part of the Philippine continental shelf, outside the area claimed by China and Vietnam.

Two major issues arise. First, is it in our national interest to be party to this agreement? Second, is it constitutional?

To the first, the answer appears to be yes. Given the growing global need for new energy sources, the merit of the accord seems beyond cavil. Cooperation negates confrontation, and we do not have the armed might to confront China or Vietnam. We cannot afford to be blindsided and prevented from seeing the merit of cooperation by the political sins of the administration.

But seismic mapping has basic naval applications. Correct scientific information about the seabed would be indispensable to a country with a submarine fleet. Like China. Can we then prevent China from using the information gathered from our joint seismic mapping to develop the routes and lairs of its submarine fleet in the Spratlys? What then would be our contribution to that undertaking? This obviously is an important security question.

And now the Constitution. Is the technical agreement legally binding as a stand-alone agreement, without a mother treaty that defines the basic policy and is duly concurred in by the Senate? Should the seismic survey prove positive for gas or oil, how would a decision to jointly mine the area find support in the Constitution, which limits foreign participation in any state exploration and development of mineral resources to 40 percent of the capital, and reserves the use and enjoyment of the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive economic zone “exclusively to Filipino citizens”?

Are there higher and more fundamental issues that can override the restrictive provisions of the Constitution? Or are there geopolitical issues that make a joint energy extraction activity with China and Vietnam a real concern to other friends and players in the region?

Why aren’t we cheering the exit of EO 464?

It’s no mystery at all.

First of all, Executive Order 464, which barred Cabinet members from appearing before Congress without the President’s prior consent, was patently unconstitutional. Contrary to the propaganda, the Supreme Court (SC) did not strike it down; it voided some of its minor parts, but upheld its central provision as constitutional.

Second, President Gloria Macapagal Arroyo revoked her unlawful prohibition on Cabinet members, but not her order requiring those who appear before Congress to invoke “executive privilege” in order not to divulge any controversial or sensitive executive material.

EO 464 had to go, given the pressure that had built up against it after the Catholic bishops demanded its revocation, Fr. Joaquin Bernas, S. J. having first proposed it in a newspaper column.

Let us revisit the central provision of EO 464:

“Section 1. Appearance of Department Heads before Congress. --In accordance with Article VI, Section 22 of the Constitution and to implement the constitutional provisions on the separation of powers between co-equal branches of government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.”

Compare it with Article VI, Sec. 22 of the Constitution:

“The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President to the President of the Senate or the Speaker of the House of Representatives at least three days before his scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session “ (italics supplied).

These are two different animals. EO 464 required all department heads appearing before Congress to secure the President’s prior consent. The Constitution on the other hand requires only those who appear before Congress “on their own initiative” to obtain the President’s prior consent. All others invited by either House of Congress shall appear, according to the rules of each House.

There is no way a fairly attentive reader of English could possibly misread the above-quoted constitutional provision.

And yet, the 2006 SC ruling in Senate of the Philippines vs. Ermita upheld the validity of the patently unconstitutional EO provision. And the entire Court concurred in the decision penned by Associate Justice Conchita Carpio Morales, from then Chief Justice Artemio Panganiban down to the last justice, save the present Chief Justice Reynato Puno, who was then on leave.

And disaster of all disasters, the mass media --- including some legal luminaries and political pundits writing newspaper columns ---were led to believe that the SC had junked everything unconstitutional in EO 464.

Given this painful comedy of errors, only by scrapping it could the unconstitutionality of the EO be buried forever. Thus, the revocation is not altogether without merit, but since Mrs. Arroyo was its original author, none of her critics felt obliged to applaud her for rescinding it.

Still, we are stuck with her controversial concept of “executive privilege.”

Reputed authorities on the Constitution tell us that “executive privilege” is “enshrined in the Constitution.” “Enshrined” is not the word for it; the term “executive privilege” does not appear in the Constitution. Rather, the privilege is based on the constitutional doctrine of separation of powers, and exempts the Executive from publicly disclosing to the Congress sensitive correspondence, communications, and documents, particularly those involving the military, foreign affairs and other domestic concerns.

But nothing in the Constitution says the Executive may deny Congress any information it requires, in the name of “executive privilege.” After all, the Congress alone appropriates the funds for all government operations and participates in the ratification of treaties; it alone has the power to declare the existence of a state of war and revoke any presidential proclamation of martial law or suspension of the privilege of habeas corpus. It would be quite absurd for such a Congress to be told that it has no right to know certain information in the hands of the Executive, or how certain controversial decisions were arrived at by the Executive.

To safeguard and protect “executive privilege,” all that the Constitution requires is that “when the security of the state or the public interest so requires and the President so states in writing, (the information sought by Congress shall be given) in executive session.” No statute, executive order or judicial construction can decree that Congress be denied the information it seeks because it involves the security of the state or because the public interest requires that it be withheld from Congress. The Constitution assumes the capability of Congress to safeguard executive secrets; and Congress has written iron-clad rules on “executive session” to make sure such secrets are protected.

In the Senate investigation into the aborted ZTE NBN contract, there is a suggestion that a crime has been committed. A government witness at these hearings may therefore refuse to answer questions by invoking his right against self-incrimination. But he may not invoke “executive privilege” to cover the possible existence or commission of a crime.

JUNTA, NOLI DE CASTRO, OR ‘RECYCLED’ GMA?

The anti-Arroyo campaign has taken a new turn. The social classes and sectors have converged; students, men and women religious and the bravest of bishops ---the poster boys and girls of EDSA 1 and 2 are back; and a big sector of the media will talk of nothing else. Yet not even Cory Aquino seems to think it’s going to be a walk in the park. And for obvious reasons.

First of all, President Gloria Macapagal Arroyo is resolved to dig in, whatever the cost or consequence. She has seen what happens to ousted Presidents: Marcos died in exile in Hawaii; Estrada spent six years in detention, was convicted of plunder, and had to plead for pardon from the very woman who had ousted him. She will not want to end like them.

Second, Mrs. Arroyo still controls the military and the police (although some suggest the opposite) and is locked in with the local officials, most congressmen, justices and judges and possibly some “opposition” figures and prominent religious personalities.

Unless the scandal reaches a tipping point, a critical mass develops, the armed forces withdraw their allegiance and the bishops bless their efforts, her support base could keep her where she is. Marcos fell in 1986 and Estrada in 2001 only after the people and the military, with episcopal benediction, camped out in the streets.

Third, the presidential hopefuls, with their big bucks and even bigger bungles, would rather play with Mrs. Arroyo than with a transition regime that could rob them of their chances of becoming president by 2010. They might pay lip service to the “Arroyo, resign!” campaign, but they are not likely to risk anything, unless assured of a place in the next government.

Fourth, as the anti-Arroyo forces spread so also will the power struggle among the putative leaders intensify. They all agree that Mrs. Arroyo should go, but they can’t seem to agree on anything else. Some prefer a military junta that will eliminate corrupt politicians and promise “radical and sweeping change.” Others insist that only an elected president replace a president with a disputed mandate, no matter how rotten the elections. And not even Vice President Noli de Castro would like to bring in the Vice President.

De Castro, however, is the only card the anti-Arroyo forces could play if they want to push Mrs. Arroyo out without straying from the constitutional path. He is also the same card Mrs. Arroyo could play if she is compelled to capitulate or if she wants to preempt everybody else. She need not resign to bring him in. All she has to do is to inform the Senate President and the Speaker of the House of Representatives that she is “unable to discharge the powers and duties of her office,” and make De Castro acting President.

In that case, she would remain the President (although “on leave”), immune from suit, though not necessarily from impeachment, which may no longer matter too much at that stage. She just might see in De Castro what the Russian President Vladimir Putin saw in his successor, President Dmitry Medvedev.

Some GMA loyalists, however, argue that, given another chance, she could still reform and rehabilitate herself. They cite as proof her decision to revoke Executive Order 464, which barred Cabinet members from appearing before Congress without her prior consent, even though she still requires them to withhold secrets from Congress, in the name of “executive privilege.”

Many will argue that she did it only to please the bishops who had asked for it in exchange for their decision not to ask her to quit. It is too little, too late.

But what if, just to confound her enemies, she should now cancel all questionable contracts, abolish the pork barrel, reform the electoral system, change all her Cabinet members who have not been confirmed by the Commission on Appointments (CA), recall former Chief Justice Hilario Davide, Jr. whom she had sent as Philippine permanent representative to the U.N., in violation of the Foreign Service Act, which terminated all septuagenarian ambassadors in 1992, and of the Constitution, which requires the prior consent of the CA for all ambassadorial appointments?

What if she now prosecutes all offenders, including those close to her, and begins to execute every single law faithfully, according to her oath of office?

And, what if the Supreme Court, for its part, decides to revive the impeachment process by abandoning its totally repugnant decision in Francisco vs. House of Representatives, 415 SCRA 44, which saved then Chief Justice Davide from being impeached in 2003, and now allows impeachable officials to avoid impeachment simply by causing the filing of a faulty complaint against themselves, in order to prevent the filing of a real complaint against them for at least a year afterwards?

Mrs. Arroyo has seen no need to do any of these things till now. But, what if she discovers that she could survive the raging storm only if she did what she had avoided doing all these years?

Lost sheep or shepherd?

The bishops are pastors, not politicians, the Catholic Bishops’ Conference of the Philippines (CBCP) says to explain why they were not joining the call for President Gloria Macapagal Arroyo’s resignation. It is the politicians (not the bishops) “whose vocation it is to order society towards the common good,” they point out.

Every well-formed Catholic layman knows this. But the Catechism of the Catholic Church also says, “it is part of the Church’s mission ‘to pass moral judgments even in matters related to politics, whenever the fundamental rights of man or salvation of soul requires it’.”(CCC 2246)

The laity expect their bishops to speak out whenever something evil latches upon the social order and poses serious harm to civil society and to souls. Widespread organized corruption is one such evil. It damns society to perdition and the unrepentant soul to the netherworld.

The bishops recognized this when they “strongly condemn(ed) the continuing culture of corruption from the top to the bottom of our social and political ladder” and “strongly urge(d) the President and all the branches of government to take the lead in combating corruption wherever it is found.”

But many see this as an unjustified vote of confidence for Mrs. Arroyo who, to them, has come to personify the problem. No one recognizes the outbreak of an AIDS epidemic and then calls on all known and suspected AIDS carriers to take the lead in stopping the epidemic.

Resignation is a specific technical solution to a problem that can be solved in several ways. It is not for the bishops but rather for the laity to propose it and lead its call. Some bishops did not see this too clearly in 2001; they seem to see it much better now. But did they have to talk of resignation at all to revisit the moral criteria for leadership and express unequivocal support for the people’s right to seek change?

In 1986, the bishops did not demand Marcos’s “resignation.” They simply said the snap elections were fraudulent, and added the following:

“According to moral principles, a government that assumes or retains power through fraudulent means has no moral basis. For such an access to power is tantamount to forcible seizure and cannot command the allegiance of the citizenry. The most we can say then, about such a government, is that it is a government in possession of power. But admitting that, we hasten to add: Because of that very fact, that same government itself has the obligation to right the wrong it is founded on. It must respect the mandate of the people. This is the precondition for any reconciliation.”

Now, as then, we need to clarify certain moral issues. We need not prejudge anyone or anything. Assume that all allegations of official wrongdoing are no more than mere allegations. They must be proved at the proper forum. But cover-up upon cover-up has followed every single one of those allegations, and the defense has focused not on showing the baselessness of the allegations but rather on the destruction of the process by which the truth may be ascertained.

Thus, to prevent Mrs. Arroyo from being impeached, someone files a nuisance impeachment complaint against her in the House of Representatives. The complaint is then thrown out, giving her a one-year period within which no further complaint against her may be filed. At the end of this period, another nuisance complaint is filed, for the same purpose of immunizing her from an honest-to-goodness complaint.

In the Senate inquiries, instead of countering allegations of wrongdoing, Mrs. Arroyo simply prohibits Cabinet members from appearing in the hearings and those who appear from divulging anything inimical to her interests.

The result is a serious moral and constitutional disorder where the strength of the law is replaced by the law of the strong, where truth and justice are trivialized, and young and old can no longer distinguish between true and false, right and wrong, good and bad.

We are now among the most corrupt nations in the world. The reputed take of corrupt politicians and their friends is now in the billions of pesos per unholy handshake. One study claims that only thirteen centavos out of every peso intended for a public project end up in the project. Yet, not a single high-grade corruption scandal has ever been acted upon.

Is it because the truth is unknowable? No, it’s simply because the attitude of those in power is this: “We are in power and you are not. You may have the smoking gun and everything else, but we control the forum and the process (and sometimes the press). Is there anything you can do about it?” And they get away with it.

This is the moral disorder the bishops could have dissected. But they did not. Thus so many of their flock feel lost, and so many others feel their pastors are.

WHY CRISTOBAL COUNTS

(Remarks at the “Tribute to Adrian” Sofitel Hotel, Pasay City, 20 February 2008)


No eulogies were heard at Adrian Cristobal’s wake or funeral. So this evening’s tribute will either cure that gap or smother an unspoken plea that we honor him in peace. I believe that had our friend been heard, he would probably have said he had wanted no orations at all because he doubted that his friends’ candor could be tamed. This is what we read in his own collection of columns, Pasquinades. He had to write the Introduction to the collection himself, he says, because another writer might have proved too honest for his taste.

That, of course, is tongue in cheek. Believe it at your own risk.

I am inclined to believe that he was more concerned about our natural tendency to exaggerate when speaking of the virtues of our friends. In life, he rejected any kind of sentimental over-praise; he had to be consistent in death. But Adrian Cristobal was not just a friend. He was, and he is, an indubitable literary and historical fact. And as with a fallen tree that once towered above other trees, we can only try to measure now what had defied measuring while it yet stood.

Adrian Cristobal was first a thinker and writer before anything else. His was a first-rate mind that cut through the surface and superficialities and went into the very heart of things. His works --- I, Suliman, The Trial: A dramatization of the prosecution of Andres Bonifacio, The Tragedy of the Revolution, and nearly everything else he wrote -- all testify to it. Suliman is a meditation, more than a short story, which is not nearly half the size or length of The Old Man and the Sea; The Trial is a play in three acts, which is out of print, and the Tragedy is an 81-page monograph on its last few copies. All three pieces are too slim to stand alone individually, outside of an anthology or a collection of the author’s works. Everything else he had written remains either uncollected or unpublished.

Many more people talk about these works than have actually read them; this is the fate of many writers and their books. Still it is not unreasonable to hope that a new generation of Filipinos with a deeper sense of the past will one day go back to these works and discover there seeds of national pride which their elders had failed to grasp. This need not remain a hope. We dare not forget that a great classic like Charles Peguy’s Jeanne d’Arc sold only one copy when it was first published in 1897, and that it took Rizal’s Noli Me Tangere over a hundred years to join the Penguin classics.

Cristobal gave to journalism the drive and output he had failed to give his literary craft. But this is probably a false distinction, since the best journalism is but another form of literature, and the best journalists are almost always literary men. Indeed, it is as much the journalist as it is the literary author G. K. Chesterton who has become today’s most widely quoted English writer after Shakespeare. Cristobal wrote tons and tons of political and social tracts, not all of which perished with the newspaper or magazine issues that carried them. One who trades in ‘futures’ will probably need no extra incentive to collect and publish these materials now for future gain.

The world has not quite heard the last word from Cristobal. I do not believe we shall know his real place in the literary world until we have read the Journals which he had so assiduously kept all his life. The publication in 2005 in France of Le Chevalier de Sainte-Hermine (which appeared in the United States as The Last Cavalier, Pegasus Books, NY, 2005), did nothing more to improve or diminish the value or reputation of its author Alexandre Dumas pere, who died in 1870. Neither did the post-humous publication of Albert Camus’s first novel, La mort hereuse in 1971, and his last, Le premiere homme, in 1995, alter the literary standing of the French Nobel Prize laureate who died in 1960. But I have no doubt that the publication of the Cristobal journals can only enhance his literary standing, just as the journals of Soren Kierkegaard and Andre Gide enhanced theirs.

Cristobal’s varied intellectual pursuits took him close to the very center of political power. He was for years a valuable source of intellectual stimulus, if not illumination, of the President of the Philippines. With natural ease he took to the sturm and drang of high politics like it was his “second amniotic fluid,” to borrow the words of Mexico’s Carlos Fuentes. It became part of his enduring search for meaning, his restless quest for eagle’s wings to fly him to the “high cliff of the human dawn” as Pablo Neruda puts it in Canto General, from where one could see everything below, or at least a bit more ground.

In 1970, he confided in his Journal that he had found only one true friend in government, whom he did not name. But on his 50th birthday in 1982, he surveyed the distance he had covered and wrote: “I have come a long way in a crass and materialistic society that I have never accepted. A kind of success in enemy territory. Why then should I be anxious about that success? There is a plan or destiny for me, whether I recognize it or not. What is required of me is to play it through.”

He played his role well, but his political engagement did not last forever. After a change of regime, he went on lecture tours and into serious column-writing. He dissected the lunacies of our times and spoke for sanity, beauty and intelligence. At the height of his influence as autocrat of The Breakfast Table, the column which ran for the longest time in the Philippine Daily Inquirer, he regularly lampooned the foibles of politics and politicians, slicing the objects of his amusement into little ribbons, without arousing the slightest suspicion on their part. It mortified him so whenever some of them sent him the most sincere, if most saccharine, thank you notes, white the detritus of their battered ego lay scattered on the op ed page.

One recurring complaint, repeated over and over tonight, was that he was not easy to read. This amused him no end. No one said he wrote only for himself, as Blaise Pascal’s own nephew Etienne Perier said of the author of Pensees. But even his own friends complained they could not always understand him. He wrote to bring out of himself what otherwise would torment him if he did not; but he often wrote in epigrams and double entendre. It was, I suspect, his way of “choosing” his readers, of playing with them, as it were. He tended to forget that the men in Plato’s caves were not encouraged to look straight into the light, lest they went blind.

Yet he could really play the snob whenever he liked, as once when, filling in as presidential spokesman (this was after I had left the office, which I held for ten years), he tried to end a public argument by throwing at his adversaries three adjectives that sent them running to the dictionary for help. Webster pointed out that “nascent” means “just coming into existence and beginning to display signs of future potential,” and that “amentic” comes from the noun “amentia,” which means “severe congenital mental handicap.” But no English dictionary could help them figure out what the third word –“thersitecal”—meant. It was obviously a coinage, derived from the Latin word Thersites, which refers to “a Greek soldier in Troy notorious for his ugliness.” But he never bothered to relieve his adversaries of their discomfort and embarrassment. It never struck him that “to instruct the ignorant” is one of the spiritual works of mercy of a good Christian.

Cristobal had no sympathy for mediocrity, stupidity or bad manners. He could not bear the yahoos and churls that tended to proliferate wherever politicians and the media gathered, or the plain anonymous bore who came up to you and told you about the poundage you had gained or lost, as though it were everybody’s business. He rarely failed to let them have it. “There must be other things in life worth pursuing besides a fortune in the bank and a 28-inch waist,” reads one entry in his Journal.

Yet beneath his awesome public gravitas, he was at heart a romantic who drooled like a lovestruck kid whenever his wife Teching sang, “How are things in Glocca Morra?” He also loved to horse around reciting Reb Tevye’s melodious reverie in Fiddler in the Roof--- ”If I were a rich man.” Indeed, if he were a rich man, he wouldn’t have to write hard; he would build a big tall house with rooms by the dozen right in the middle of town; a fine tin roof with wooden floors below, with one long staircase going up and one even longer going down, and one more leading nowhere just for show. If he were a rich man, he’d probably be cruising in the Adriatic, skiing at St. Moritz or playing baccarat at Monte Carlo---{do be do be do be do!}

But not even his “success in enemy territory” had made him a biddy biddy wealthy man. No regime ever risked its fate or fortune by drowning its intellectuals in immoderate or inexhaustible wealth. The regime he served was no exception. Thus, not having turned himself into a television star, a party list congressman or a Makati businessman, he continued to write for a living, and the only kind of writing that offered him a reasonably decent regular income was column-writing.

It was here where he continued to converse with history --not as a historian but as a man of letters--- on the unresolved questions about our history, and all the other questions spawned by them. He said what had to be said, and he said what nobody else had said, or in a way nobody else had said it. This is what made him and makes him necessary; this is what made him and makes him relevant.

Consider the question of nationhood, of truth, of justice, of democracy. Whether or not we are one nation now remains unresolved. But Cristobal knew that if we are, we are not a nation without a history, only a nation without a common consciousness of its own history. He also knew that although the terms are used everyday by the man in the street, we have yet no common conception of truth, justice, or democracy.

John Rawls calls truth the first virtue of systems of thought, and justice the first virtue of social institutions. The French philosopher Alain Badiou sees democracy as the principal organizer of consensus, and that it is forbidden, as it were, not to be a democrat. But we seem to have as many conceptions of these as there are speakers on each subject. Indeed, on one thing alone do we seem to agree: that we are deeply divided, and that we are deeply divided because of politics. But Cristobal would probably have said it is a mistaken view: we are divided because of greed---greed for power and money, uncontrollable and insatiable greed.

These are times when political practice or malpractice seems able to proceed against all common sense, tradition and theory; when the law of the strong seems to prevail over the strength of the law; when so many faithful are able to integrate into their Faith the worship of Croesus and Hedone; when truth and reason are detained without charges and without bail, deprived of all inherent rights and civil liberties; when right and wrong have become total strangers; when the first thing which those in power proclaim is relativism and the first thing they deconstruct is the most undeniable reality.

In 1878, on the centenary of Voltaire’s death, Victor Hugo, the aging author of Les Miserables, proclaimed these words: “since night issues from the thrones, let light come from the tombs.” I borrow these words now to charge ourselves and those who will come after us to reflect wisely and see with the clearest light of day why Cristobal was necessary and why he will continue to be relevant to us and to our progeny.