VICTORY STAINED WITH DISHONOR

PROLOGUE

“When a great tree falls,” so said one great American jurist, “we are surprised to see how meager the landscape seems without it.” So are we, denizens of Isabela City with the senseless death of my dear friend, Nickarter “Boy” Gonzalo.

Nickarter “Boy” Gonzalo was an underrated and often misunderstood political pundit of my hometown. Well spoken, witty and with a razor sharp intellect, Boy Gonz, as friends would call him, could have been the right man to go against the gargantuan tide of abuse and corruption in Isabela City.

Boy was very articulate with his views on local politics. In all our conversations, he consistently displayed his political idealism as he expounds his critique on the whales and minnows occupying top-echelon positions in local government. You may hate his guts, scorn at his peculiar ways, be offended with his candor but at the end of the day you will realize, idealism does not, after all solely belong to the young. And Boy Gonzalo, was exactly that. A man tested by time, his heart was full of idealism that even a million young trapos could not match. Actually, I often tease him that with his age (he was in his 50s), I find it really strange that he still believes in cherished ideals such as meritocracy, idealism and morality as standards for good governance. By now, I quipped, he should be thinking along the lines of trapo politics to get elected as city councilor or whatever. But before I could pound him some more, Boy made a hand gesture signaling me to stop and said, “Pey, I may be a nobody but I would like to leave a legacy for my children before I die.”

Call him a perennial loser in the arena of politics and he would gladly concede. Boy’s fetish to join the political arena could hardly be considered a personal ambition. For the both of us, winning an election is just a bonus. It's the impact that we are making on the voters that counts. But for all his bravado, Nickarter “Boy” Gonzalo is a man of faith, a man of substance and strong conviction that decency in public office is not a far fetched dream.

Below is an article that he was working on, an unfinished diary of his political journey in Barangay politics. “Victory Stained with Dishonor” captures in pristine details how politics in my hometown is being conducted at the grassroots of the political spectrum. Here Boy Gonzalo was at his best. Like a resilient fighter, his consistent failures did not deter him from pushing his deep-seated advocacies. He treats every failure as his badge of honor.

I’m reproducing this write-up to serve as a living testament on the extent of corruption in our political system even at the lowest level. But more than anything else of course, I would like to illuminate through this piece the kind of public servant Boy Gonzalo was. Albeit relatively an obscure and undervalued political figure of Isabela City, to this writer Nickarter “Boy” Gonzalo stands tallest in the pantheon of principled Basilenos to have walked this earth. Actually right now, I am torn into thinking that with the way things went, our hometown doesn’t deserve a man like him.

I’m forever grateful to have met him, conversed with him and to have drunk tons of coffee with him…And oh, the countless books we have devoured be it on Christian apologetics or Philippine politics. Farewell Brod. As promised, I will not falter from keeping the flame burning!

Below is the reproduction of Boy’s unfinished article...

A friend texted me this message quoting Rizal “to fall with the head high and serene brow is not to fall, it is to triumph. The sad thing is to fall with the stain of dishonor.” Further, he elaborated this statement by a political advocacy that seems to be out of the ordinary: the notion of victory is not to equate winning the elections but to shake the system. Winning if at all, is just a bonus. And here is the stronger statement that became both me and my friend’s advocacy in politics: Run not to win but to educate the electorate. He pushed me to run in the barangay elections. I thought of this quite seriously and found this idea a profound novelty in politics.

Run I did…and lost in the elections with serene brow and head held up high perhaps humbled with the fall but triumphant in my (and my friend’s) advocacy to agitatingly shake the tide of evil practices in politics. Now it’s my friend’s turn to go for it in 2013. But that would be another story.

How did I shake the political system? It wasn’t exactly shaking the system but courageously unnerving voters who sell their votes and denouncing political adversaries who were blatantly practicing the usual heinous practice of vote-buying during the campaign.

I ran alone as councilman of my barangay. Not exactly the best of ideas to drum up support or teamwork from fellow candidates within a party system. But more than that, I also prepared my own package of realizable programs for my barangay. I knew I had the necessary credentials to get elected being a former consultant of an ex-mayor, a co-proponent in successfully pushing for the cityhood of my town and a former lecturer of righteous governance in the barangay level. Running alone was my way to escape the company of traditional politicians (trapo candidates swamped even in the barangay level). I knew they were also my target of my so-called shakening. Since barangay elections were free from any political parties, I could just insert myself with any groups holding campaign rallies.

In one rally that I got invited, I detonated a fiery speech mincing no words condemning rampant vote-buying and criticizing incumbents who were only getting their honorarium as barangay officials but were constant absentees in barangay sessions. “Are these the kind of leaders we elected? Bato-bato sa langit, ang tamaan, bukol. There are no vote buyers if there are no vote sellers I screamed.” I was telling the hard truth but then I also realize truth was a very unlikely product to be salable to people. I was paddling against the wave of “normal” campaigning by stirring and shaking the electorate’s ears. My speech also unnerved other candidates that suddenly I had political enemies.

Besides campaigning as honest as I can, I went out of my way to lecture SK candidates about keeping the campaign within legal bounds and never resort to vote-buying. I thought this was a good strategy also of courting the votes of parents while educating these young candidates. If elected, I also volunteered that I was going to be a working partner and guidepost to whoever was the winning SK chairman in the barangay council.

Anyway, why did I lose? I made it very clear to the constituents of my barangay that I was a candidate who would not give, pay, and buy votes to win. The program of giving and helping would come after the elections, not during the campaign.

When the results of the elections came in, barangay folks began whispering that those who mostly won were the ones who gave rice, money, sardines and other food stuffs. A winning candidate for barangay kagawad was overhead that she spent close to P100,000 for vote buying purposes. Another candidate disposed off 35 sacks of NFA rice packed in 2 kilos for every voter using a religious practice of sadaca as a vote buying tool. The familiar corrupt perverted idea “kung wala kang pera, wag ka ng tumakbo” basically means “kung wala kang perang pambili ng boto, wag ka ng tumakbo” which nefarious candidates would never admit in public. Take note of the word “nefarious” to distinguish from some other honest candidates who ran for public office.

The day before Election Day is considered as a non-campaign day. However, many candidates resorted to “kamang” which literally means to crawl. Scrupulous candidates were “crawling” at night from house to house giving away rice and money. A neighbor confided me the next morning that two candidates came knocking to his house at midnight to give rice. A candidate was seen with a short sidearm tugged in his hips. There goes the gun ban blatantly violated.

Another sinister strategy that has become rampantly unchecked is flying voters. Many of my known voters came to me complaining that someone already voted in their stead. A certain stooge of a candidate would offer bribe money to a voter. To ensure the voter would really vote for the stooge’s candidate, the voter would pretend he is illiterate and that an assistor of the stooge would “assist” the voter to fill up the ballot. Thereafter, the voter gets paid the bribe money by the stooge.

NB: Pictures courtesy of LOVE ISABELA at http://www.facebook.com/loveisabela

FEATURED ARTICLE: PRIVACY AND THE BAN ON CONTRACEPTIVES

The author, Atty.Ernani Diaz Bonoan, is an alumnus of Silliman University. He is currently a practicing lawyer based in Cagayan de Oro City.

In my previous article I posit the view that reproductive freedom is a protected right under the right to liberty of the due process clause of the Constitution (Article III, Section 1 of the 1987 Constitution). Equally relevant on the issue of reproductive freedom is the right to privacy of each individual whether married or single. This is so because right to privacy is rooted on the concept of liberty as well. In the words of a learned jurist: “Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom.” Privacy, moreover, covers reproductive freedom “for if privacy is to mean anything it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (Eisenstadt vs. Baird [405 US 438]).

One of the cherished rights protected by our Constitution is the right to privacy or the right to be let alone. While not explicitly mentioned in our Constitution, its existence is recognized in our jurisdiction. In the Philippine judicial landscape, this right was articulated in the leading case of Morfe vs. Mutuc (G.R. No. L-20387, January 31, 1968). Following the trodden path of its American counterpart, our own Supreme Court acknowledged that the specific guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that create a zone of privacy. The Court, citing the seminal case of Griswold vs. Connecticut (381 U.S. 479 [1965]), quoted with approval the following disquisition of Justice Douglas thus:

"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."'

After referring to various American Supreme Court decisions, Justice Douglas continued: "These cases bear witness that the right of privacy which presses for recognition is a legitimate one."

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It has wider implication though. The constitutional right to privacy has come into its own. So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.
Indeed, the Court acknowledged that the “right to be left alone” is “the most comprehensive of rights and the right most valued by civilized men." Consequently, the existence of this right to privacy was reaffirmed as fundamental right in Ople vs. Torres (G.R. No. 127685, June 23, 1998). Again, following Griswold vs. Connecticut (supra), Justice Reynato Puno writing for the Court declared that “if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution.”

Significantly, our adaption of Griswold, the first case in which the constitutional right to privacy was explicitly recognized, involved a constitutional challenge on a law banning access to contraceptives. The factual milieu reveals that Connecticut passed a law which bans the use of “any drug, medicinal article or instrument for the purpose of preventing contraception.” The law likewise criminalizes the act of any person “who assists, abets, counsels, causes, hires or commands another” in the commission of the foregoing offense. The avowed purpose of the statute according to Connecticut’s counsel Thomas Clark is to reduce the chances of immorality and to act as a deterrent to sexual intercourse outside marriage. Estelle Griswold together with Dr. C. Led Buxton opened a birth control clinic and started to distribute and advise married couples on the proper use of contraceptives. Three days after opening their clinic Griswold and Buxton were arrested. When the case was finally elevated to the U.S. Supreme Court the law was struck down as unconstitutional as it amounts to unwarranted intrusion upon the zone of privacy of married couples. This zone of privacy, according to Justice Douglas, is created by several fundamental constitutional guarantees” including the First, Third, Fourth, and Fifth amendments, all of which “have penumbras, formed by emanations from those guarantees that help give them life and substance.” The Court noted that the law denying couples access to contraceptives “operates directly on an intimate relation of husband and wife x x x a relationship lying within the zone of privacy created by several fundamental constitutional guarantees.” For the Court, the existence of the so called zone of privacy protected “notions of privacy surrounding the marriage relationship”. Consequently, the Court rhetorically asked:

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

In view of this, there is no question that an absolute ban on the use of contraceptives would be an infringement of the privacy rights of married couples. A law criminalizing the use of contraceptives is too broad and sweeping in its scope that it unnecessarily infringes on marital privacy.

It is quiet significant that the decision in Griswold revolves around the privacy right of married couples. There is nothing explicit therein which extend to unmarried individuals the right to use contraceptives. However in the case of Eisenstadt v. Baird [405 US 438] the same right granted to married couples was extended to unmarried individuals. The ruling in Eisenstadt was groundbreaking in the sense that it established the right of unmarried people to possess contraceptives on the same basis as married couples. By implication, the decision acknowledged the right of unmarried couples to engage in non-procreative sexual congress. In its logical sense, Eisenstadt impliedly concludes that all sex between consenting adults is constitutionally protected. Writing for the majority, Justice Brennan declared that to deprive unmarried individuals access to contraceptives while allowing the same for married couples would violate the equal protection clause. Anent the issue of privacy, Brennan succinctly wrote:

If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with separate intellectual and emotional make up. If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

In fine, it is crystal clear that under the various provisions of the Bill of Rights, the choice to use contraceptives rest on married couples. The State cannot, in an attempt to uphold its own moral viewpoint, deprive married couples of their constitutional right to choose and decide for themselves the issue parenthood. Further, single and unmarried adults, may invoke their right to liberty and privacy to consummate their bonds in intimate sexual conduct even for non-procreative purpose. As long as these are done consensually, their sexual behavior does not contravene fundamental state policy as contained in the Constitution (Concerned Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, November 23, 2004). For in the words of the High Court in the case of City of Manila v. Laguio, Jr. (G.R. No. 118127, April 12, 2005): x x x be it stressed that their consensual sexual behavior does not contravene any fundamental state policy as contained in the Constitution. Adults have a right to choose to forge such relationships with others in the confines of their own private lives and still retain their dignity as free persons. The liberty protected by the Constitution allows persons the right to make this choice. Their right to liberty under the due process clause gives them the full right to engage in their conduct without intervention of the government, as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.

Ed. Note: The author would like to acknowledge the treatises on Philippine Political Law [2002 Edition] and Constitutional Law [2003 Edition] of Justice Isagani A. Cruz in the discussion of police power and the supremacy of the Constitution in the first part of this article published in Goldstar Daily (Mindanao) dated June 23, 2011.

LIBERTY, PRIVACY, REPRODUCTIVE FREEDOM AND THE BAN ON CONTRACEPTIVES: A CONSTITUTIONAL PERSPECTIVE (PART 1)

The major opposition to the Reproductive Health Bill is anchored on the provisions involving artificial contraceptives. Those who condemn the bill espouse the view that contraceptives are intrinsically evil and making them readily available would promote immorality and promiscuity. Moreover, it is contended that by making contraceptives accessible to the masses would wittingly or unwittingly justify abortion. Contraceptives, they say, can be used as abortifacient to curtail life thus subverting the right to life of the innocent and helpless. In fact there is a recent move in the Senate led by Senate President Juan Ponce Enrile for the enactment of the Protection of the Unborn Child Act. Senate Bill No. 2497 seeks to counter the RH Bill by prohibiting all forms of contraceptives in the country for the purpose of protecting the unborn from conception.

Interestingly, the proponents of the Reproductive Health Bill vehemently deny that it seeks to legalize abortion. They aver that there is nothing in the proposed measure that provides for the legalization of abortion. On the contrary, they further claim that the bill is pro-life as it will prevent infant and child deaths. In the same vein, the measure seeks larger investments in children’s health and education and better health outcomes for children. Ironically, other religious groups like the Iglesia ni Cristo and the United Church of Christ voiced their support on the RH bill. These religious sects undeniably shun abortion, but still found nothing in the measure which sanctions abortion. For these groups, reproductive health does not necessarily mean abortion and use of contraceptives is not equivalent to killing the innocent.

Frankly, the advent of the Protection of the Unborn Child Act is a welcome development since it accentuates the legal ramification of absolute ban on contraceptives. The Protection of the Unborn Child Act puts in proper perspective the legal position of those against the Reproductive Health bill which is total ban on contraceptives. This is in line with the position taken by most clerics who claim that contraceptives are intrinsically evil. Indeed, at first brush the Protection of the Unborn Act seems laudable insofar as it seeks to protect the unborn, however a more thorough reflection of the means used in achieving its objective would show that it suffers from constitutional infirmity.

It may be recalled that to sustain the validity of any police power measure it must be shown that the interests of the public generally, as distinguished from those of a particular class, require its exercise and the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. In short, there must be a concurrence of a lawful subject and a lawful method.[1] It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.[2] Consequently, even if the purpose of the law is within the scope of the police power of the State, the same will still be annulled if the means employed contravenes the Constitution. Indeed, as the fundamental and paramount law of the land, no act shall be valid however noble its intentions if it contravenes the Constitution. The Constitution must ever remain supreme and all must bow to its mandate.[3] Accordingly, the lawful objective of any law must be pursued through a lawful method. Absent a lawful means, the police measure must be struck down as it amounts to an arbitrary infringement of private rights.[4] Thus in Association of Small Landowners vs. Secretary of Agrarian Reform[5] the High Court observed:

One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right.

The foregoing disquisition gains significance in view of the fact that the issue(s) involved in this debate goes to the fundamental question of life, liberty and privacy. For at the heart of the controversy over contraceptives lies the fundamental question of whether the State can enact a law denying married couples or unmarried individuals access to contraceptives. Otherwise stated, can the State deprive the individual, married or single, the right to decide matters so fundamental as the question whether to bear or beget a child.

THE RIGHT TO LIBERTY AND REPRODUCTIVE FREEDOM: A CONSTITUTIONAL RIGHT.

Guided by the foregoing considerations, I begin with the proposition that neither the State nor the Church can dictate or impose upon any person what mode of family planning method or methods to pursue. The choice whether to use contraceptives rest primarily on individuals and couples. This is so because the decision to use (or not to use) contraceptives lies within the right to personal liberty and privacy afforded each individual under the fundamental law. It should be underscored that liberty under the Constitution is not confined to freedom from bodily restraint. The Constitution protects “liberty of the person both in its spatial and in its more transcendent dimensions.”[6] Chief Justice Reynato Puno in his concurring opinion in Ang Ladlad LGBT vs. COMELEC[7] explains the concept of liberty thus: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to the liberty protected by the due process clause. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Clearly liberty includes individual decision-making on intimate questions of marriage, procreation, contraception, family relationship, child rearing, and education.[8] As succinctly held in Lawrence v. Texas[9]:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State.

In fine, liberty embraces reproductive freedom which posits the view that everyone has a right to reproductive self determination-meaning the right to decide for themselves when and how often one becomes a parent or the right to become a parent at all. This is the underlying philosophy that animates the passage of the Reproductive Health Bill. The measure is anchored on the principle that everyone has the right to reproductive self-determination – meaning the right to decide when and how often one becomes a parent or the right not to be a parent at all.[10]


[1] Serrano v. Gallant Maritime Srvices, G.R. No. 167614, March 24, 2009.
[2] White Light Corp. v. City of Manila, G.R. No. 122846, January 29, 2009.
[3] Isagani Cruz, Philippine Political Law, (Central Lawbook Publishing Co.; Quezon City, 2002 Edition), pp. 12-13.
[4] Isagani A. Cruz, Constitutional Law (Central Lawbook Publishing Co; Quezon City, 2003 Edition), p. 56.
[5] Association of Small Landowners vs. Secretary of Agrarian Reform, G.R. No. 78742, July 14, 1989.
[6] Lawrence v. Texas, 539 U.S. 558 (2003)
[7] Ang Ladlad LGBT v. COMELEC, G.R. No. 190582, April 8, 2010.
[8] City of Manila et. al. v. Perfecto A.S. Laguio, Jr., et. al., G.R. No. 118127, April 12, 2005.
[9] Supra, note 6.
[10] See Explanatory Note of the “The Reproductive Health and Population and Development Act of 2010. This is the version of Albay Representative Edcel Lagman.

ED.NOTE: The author,Atty. Ernani Diaz Bonoan is a partner of the Rebolos, Sanchez & Bonoan Law Office in Cagayan de Oro City.

A Wounded General

The unfortunate death of former Chief of Staff General Angelo T. Reyes has caused the public to doubt whether Senate investigations are really designed to help make good laws or are they being used by some legislators as springboard for grandstanding and/or personal vendetta. When TV cameras start to roll and the hearings are simulcast live in a cable channel, is it really all about the right of the public to know on matters of national importance? It is my honest view that the recent legislative investigation on the ‘plea bargaining’ controversy has been poorly conducted by the Senate. Some senators were flagrantly grandstanding and obviously in a power-tripping mode.

Apparently, when the late Secretary was invited to appear in the Senate inquiries he had no inkling whatsoever that he was to be grilled by Senators Jinggoy Estrada and Antonio Trillianes. Going there, he was assured that the inquiry would center on the anomalous and highly irregular plea bargaining agreement entered into between former AFP comptroller General Carlos Garcia and the office of the Ombudsman. In fact, according to Retired Commodore Rex Robles in his eulogy last night recounted that the Secretary was not comfortable being called upon as source person in this matter. He was worried he could not contribute much. He attended otherwise, as we all have witnessed. Sitting there, he never thought he had more things to worry upon later on. Much to his chagrin, Senator Jinggoy Estrada had more business than just inviting him. That day had all the elements of a telenovela episode. Soap operas will never lose vengeance and retribution. It’s a plot we adopt even in real life. Even in the Senate, unfortunately.

Coming out in a wheelchair, the melodramatic mood slowly set in as the curious public patiently waited for what he had to say. Of course, the Senate is no neophyte when it comes to star or surprise witnesses. Remember Clarissa Ocampo? All had their time to shine. All had their time to tell their stories. And so it was Colonel George Rabusa’s time, a former budget officer of the AFP and incidentally, a kumpare of Secretary Reyes. Admittedly not coming with clean hands, this star witness declared that he did not only help in squandering the AFP funds but he also gained from it. And now that karma has found its way to his life, he was now ready to squeal it all out. After brief parliamentary incantations from the Senators, and a few sketches on the inner-workings on the AFP, the plea bargaining agreement which was on the agenda that day, was successfully set aside. Now, all were yakking on the rotten system of money squandering and funds conversions within the AFP. Out of a sudden the clueless general was being accused, among others, of accepting pabaon and pasalubong during his stint as AFP Chief of Staff. Rabusa recounted, that due to the pabaon system, the late Secretary was 50M richer when he left the AFP. All of a sudden, all had their fingers pointing at the late general. In a desire to redeem himself, he pleaded the committee if he could ask a couple of questions for Col. Rabusa. He said, “Ako po ba’y naging ganid? Ako po ba’y naging suwapang? Ako po ba’y nanghingi?” The late Secretary obviously felt like a helpless lamb before a group of cannibals wanting to gnaw his every limb. He was like gasping for his breath when he said, “Mr. Chairman it is my reputation that is at stake here.” But was smashed to death when Senator Trillianes said, “No, you do not have any reputation to protect here.” Now, the general was facing a battle without a battalion of soldiers to call on to. He was facing a war alone and his military instincts proved futile to his avail. Unlike him, his enemies were all ready for war that day. That day however ended like any other Senate inquiry…all media hype, endless bickering, tainted reputation and a public clamoring for more.

In a later interview, Rabusa, with some hesitations but with insistence upon Karen Davila, added that the general’s wife and his family also allegedly benefited tremendously from these corrupt practices in the AFP. Col. Rabusa also recounted in a casual manner how he splurged AFP funds by ingratiating the general’s wife with travel allowances upon her request or when he treats occasionally the general’s sons for a boy’s night-out. All of these happened when the late general was the head of the AFP and GMA was commander-in-chief. After these revelations, public outrage was now evident in all social networking sites. And the ill feelings of the public towards the late Secretary, as he was associated with the infamous administration of GMA, was revived again.

Personally, I know where Senator Trillianes is coming. His passion and resolute commitment to reform the ranks of the AFP has caused him jail time and alienation from the public. Being one of the leaders of the 2003 Oakwood mutiny, Senator Trillianes is well-versed with issues of corruption in the AFP. Just like the sentiments of the RAM boys during post martial law years, the idealist senator blames the high ranking officials of the AFP for causing an indelible blot in the name and reputation of the military as an institution. Of course, we all know he was too fed up of the vicious cycle of corruption in government, the AFP in particular, the very institution he belongs in. This however is neither a justification nor an excuse of the way he acted and ridiculed the person of the late Secretary. He must remember that as a legislator, the Senate is a different battlefield.

Very briefly, let me point out the constitutional underpinnings of a legislative inquiry. In our constitutional scheme, Congress is vested with the totality of legislative powers. Basic is the rule that its primary tasked is to pass laws. That’s the general rule, at least. But the constitution made it sure that pursuant to its law-making function, certain incidental powers are needed so that Congress may accomplish its purpose. Among the incidental powers of Congress is the power to conduct legislative investigation in aid of legislation. But what is the purpose behind legislative inquiries vis a vis legislation? In one of the landmark cases on the subject the Supreme Court opined that, “A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change and where the legislative body does not itself possess the requisite information ─ which is not frequently true─ recourse must be made to others who possess it.” Thus, the 1987 Constitution under Article VII Sec. 21 expressly provides that, “The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.” It was only under the 1973 Constitution, and of course the 1987 Constitution, that the power of legislative inquiry has found its place as an explicit constitutional provision. This is not to say however that such power did not exist under the 1935 Constitution. Even before, although there is no provision in the 1935 Constitution explicitly granting Congress the power to investigate, the rule was such power can be inferred from the express power of legislation.

Just like any other power, the power to investigate is likewise susceptible to abuse if placed in the hands of irresponsible leaders. Time and again, we decry the conduct of legislative investigations. Witnesses were unfairly treated and subjected to public humiliation. Some egoistic legislators for obvious reasons tend to intimidate witnesses by citing them in contempt if they refused to cooperate. It is for this reason that under the 1987 Constitution the prevailing view is that said provision is not to grant power but in fact to limit its exercise. Specifically for the protection of persons appearing before legislative investigations, three limitations are in place: (1) it must be in aid of legislation; (2) it must be in accordance with its duly published rules of procedure; (3) the rights of persons appearing in or affected by such inquiries shall be respected.

The legislative power of Congress is broad and well-nigh unlimited covering almost everything within its reach subject only to the limitations set forth in the Bill of Rights and the constitution itself. On the basis of this premise, the power of investigation which flows directly from the express power of legislation can be understood in this light. The first limitation that the legislative inquiry must be ‘in aid of legislation’ speaks of the requirement by which the legislative body or any of its committees acquires jurisdiction over the subject matter pertinent to the inquiry. It does not say much actually towards the protection of witnesses or resource persons summoned to appear before any legislative investigation. Because of the doctrine of separation of powers, the long standing rule is that every legislative investigation must be presumed in ‘aid of legislation’ except in cases which comes under the expanded jurisdiction clause of the Supreme Court─ when there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress in the exercise of its powers.

The second limitation that the legislative investigation must be ‘in accordance with its duly published rules of procedure,’ talks about the basic requirement of due process under the bill of rights. Here while the constitution recognizes the power of Congress to make its own internal rules the same must be published so as not to offend rights of private person appearing before legislative inquiries. Publication is an essential requirement of due process for it gives notice to private persons whose rights might be affected during investigations.

The last limitation on legislative investigation is that “the rights of persons appearing in or affected by such inquiries shall be respected.” According top Fr. Bernas, “this is just another way of saying that legislative investigation must be subject to the limitations placed by the Constitution on governmental action. And since all governmental action must be exercised subject to constitutional limitations, principally found in the Bill of Rights, this third limitation really creates no new constitutional right.” In any event, the rights protected therein cover the right against self-incrimination, right to privacy, right against unreasonable searches and seizure and of course, the right of due process.

I do not dispute the fact that plea bargaining agreement is a legitimate subject for legislative investigation in aid of legislation. Remember the “Brunei beauties” controversy in the 90s? As absurd as it was, that too was presumed to be in aid of legislation. Certainly, massive corruption in the government like in the AFP deserves proper investigation. But Senators must be circumspect and knowledgeable of the fact that they wield awesome powers because of the institution they belong. Apart from the power of legislative investigation, legislators too are granted parliamentary immunity for any speech or utterances made within the halls of Congress. Thus, Article VI Sec.11 states in part, “No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.” Pursuant to this provision it appears that a senator has unbridled right to question or even malign a resource person with impunity. For this he cannot be charged in any court of law for his libelous remarks against a witness appearing before legislative inquiries. (Will the majority of the Senate punish Senator Antonio Trillianes for his below the belt remarks during the inquiry when he said, “No you don’t have any reputation to protect,”? I doubt it!)

I have yet to see the published rules of the Senate blue ribbon committee. In an interview, Senator Joker Arroyo former chair of said committee, laments that the rules of the committee should be amended to ensure that the right of a resource person libeled during a hearing will be protected. It appears that the present rules of the Senate blue ribbon committee is patterned after the 1935 Constitution which clearly did not provide for the protection and respect of the rights of persons being summoned. Hence, under the existing rule, a resource person is prohibited to examine or cross-examine any of its witnesses. “The resource person's right to defend himself on the spot is curtailed. If at all he can exercise it, he does so not because he is entitled to it but by the grace of the chairman, who may even disallow it,” said Senator Joker Arroyo. As mentioned earlier, the express provision on legislative investigation in the 1987 Constitution is not a grant of power but a limit to its exercise. The excesses committed in the past prompted the framers of the 1987 Constitution to erect limitations that may check the abuses inherent in any legislative inquiry.

On that note, I still believe that the Senate inquiry must not in anyway be hindered by this unfortunate death of the Secretary. In fact, while I understand that the family is still in mourning, the Senate must still continue to probe on this matter, even if it needs calling the general’s wife. After all, she benefited from it. However, again I believe certain decorum must be afforded during these investigations. I sincerely believe that because of this tragic event, the Senate must reexamine its rules and guidelines with respect to persons appearing before any legislative investigation. Respect breathes respect.

POSTSCRIPT: Last week, I posted an entry here which alludes more particularly to the death of my beloved father. As I watch the necrological services on cable channel, I cannot but share a tear or two for them. Of course, my brothers and the sons of the Secretary Reyes may not be the same in several aspects with respect to the death of our respective fathers. But I am sure that we share the same sorrow and grief of losing a very loving father. In this level, differences are narrowed down and similarities fall in one category, simply, we are sons who lost a father. It is probably why I understood why Mark Reyes, in his eulogy for his late father, defended him amidst the Secretary’s apparent suicide. He said and emphasized over and over again that his father was a Filipino public servant who tried his best to work in a very flawed system. But while I share the same sentiments of trying to leave a good legacy to his father’s reputation tainted by the recent events, his words did not win me over. In fact, it made me more thinking. Of course, we can always pray he should not have ended his life and defended himself where he could be rightfully heard. In the Senate, you must realize, he did not categorically deny he did not receive any of the pabaon or the pasalubong. In fact, he blurted out a rather ‘double-bladed’ answer when inquired upon. He said he did not ask for it nor did he ask for more, which therefore suggests, that other AFP chiefs may have asked for it or were greedy to ask for more. Come on, 50M pesos was an unimaginable amount especially for soldiers fighting with all-worn out boots or living with a 1000-peso monthly allowance. Again, of course, we all want him to say his piece. If only he did, then maybe, his son would not have to do it for him.

My father was no general, no secretary, did not have any of his father’s educational attainments, but I did not have to defend my father on any occasion- especially at his death. As far as I can recall, our family was overwhelmed with too much good words upon his death. In fact, in my eulogy, what was left for me to share, was how good a father he was to us three. And he was. I bet Secretary Reyes was too. Amidst the controversies, I believe, that must have been a good way to end it. He was a good father. In that battlefield, the young Reyeses can definitely put their names on the line. It was a playing field that they can attest to and that no one, not even "a one single-amoeba" has the right to question.

References:

The 1987 Constitution: A Commentary by Fr.Joaquin G. Bernas, SJ
Philippine Political Law by Justice Isagani A. Cruz
Philippine Daily Inquirer