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Monday, December 5, 2011

Political Persecution or Pre-emptive Strike?

The on-going debacle on the stoppage of the supposed exodus of former president Gloria Macapagal Arroyo to seek medical treatment and the rather exciting yet on-a-thin-ice bickering between the Executive and the Judiciary branches of government are but auspicious moments for me as a law student, but also for the most of us who experience goose-bumps or unwavering fear when we hear the words “constitutional crisis”. But I would like to look at these issues holistically (not myopically), especially on the unnecessary and rather substantial questions and contentions brought before the Supreme Court. The immediate reaction to the messy and ruthless treatment towards the former president in the NAIA airport involved constitutional issues that are reminiscent of many political figures who experienced the same not only in our country, but also in most democracies or non-democracies in the world: the right to travel. The Arroyo camp, represented by Atty. Anacleto Diaz, was clear in its stand: Arroyo’s right to travel is absolute and could not be hampered by a mere administrative memorandum but only by law. This issue has been the subject of the landmark case of Marcos vs. Manglapus: whether or not the President can refuse Ferdinand Marcos and his family’s right to travel back to the Philippines. There are two immediate similarities in these case. First, the person involved is facing so much public abhorence and hate that they become their own country’s persona non grata - they are considered awfully terrible dictators of their time. For Marcos, the Martial Law speaks of itself. For Arroyo, the mounting allegations and cases contending her draconian rule during her presidency, i.e. human rights violations, electoral sabotage, extra-judicial killings - you name it. Second, they have fallen to their knees and are under the mercy of their successors who affirmed how tyrannical they are. Against Marcos, we have Cory who championed democracy and challenged the distorted resolve and brutal rule of the once brilliant man. Against Arroyo, we have Noynoy Aquino, the people’s champion mirroring the mandate and dreams of his parents and who promised to do better than his predecessor. It’s like being Caligula or Caesar who, in their early rule, have been loved up to the moment they were hated and killed by their own treachery against their countrymen. And here’s the catch - in the times of their frailties, their successors begin to take revenge. Cory, exercising her residual powers for the first time in the nation’s history, won favor in the Supreme Court and was able to disinherit Marcos from the land he once ruled. And now, Noynoy, exercising through his uncanny alter ego in the DOJ, Secretary Leila De Lima, was able to rebel against the Supreme Court’s order allowing Arroyo to leave. And now, here’s the question, is this a form of political persecution in the most subtle way? Is this a pre-emptive strike against the horrors and the risks of allowing an alleged criminal leave the country and escape trial? There are differing opinions, harsh and gentle reactions. What about the Supreme Court? In the en banc session, the Justices seemed to be unpredictable, as if they are immune from mind-read. The Arroyo camp raised the issue of the non-publication of the infamous DOJ Circular No. 41 which empowered De Lima to issue an HLO against Arroyo, citing the case of Tanada vs. Tuvera. Another issue was raised regarding the existence of a law (Republic Act No. 10071, “Prosecution Service Act”) which empowers the DOJ Secretary to promulgate ordinances against probable miscarriage of justice. And of course, the controversial issue raised by the brilliant Lady Justice Sereno with regards to the issuance of 500 or more HLOs during Arroyo’s administration using DOJ Circular No. 41, the same circular that stopped her from boarding a flight last Nov. 18, which could be constitutive of estoppel. And of course, the most important phrases in Section 6, Article 3 of the 1987 Constitution - “national security, public safety, or public health” and “as may be provided by law” - are perhaps the substantial issues in the en banc session. I think, procedural matter aside, that these questions test the qualification of the right vested in the said section. Is right to travel absolute unless the law says it is not? Lady Justice Sereno raises the issue whether or not right to travel is a non-derogable right under the eyes of international law? She says, it is derogable. Constitutional Commissioner Fr. Joaquin Bernas, S.J. argued that the right to travel may only be limited through an act of Congress, ergo, only by law, and by court order. In this case, neither has been at issue until the Prosecution Service Act was cited by Mr. Justice Reyes. Atty. Diaz contended rather fairly that the law was not invoked in the WLO nor in the HLO. These are very important questions of law. It is up to the highest court of the land to decide. But what do all these auspicious moments tell us? I think that these legal questions precipitate to more holistic issues that we should be more weary about. How long will the clash between the Executive and the Judiciary last? What will be its ramifications? What does it say about our government and the principle of democracy it should espouse? What happens when a constitutional crisis becomes unresolved? I can fight off the feeling of empathy towards Arroyo, but much of the nation’s resolve tend to affirm her guilt in all these. See related entry at: