30 November 2011

Jon M. Van Dyke, 68

Jon M. Van Dyke, 68, an internationally respected human rights attorney and law professor, who sued the Marcoses in US courts on behalf of Filipino human rights abuse victims during martial law and through the end of Marcos' regime, died in his sleep while traveling in Australia. After obtaining one of the largest judgments ever in a class action law suit in US history for martial law victims, Van Dyke and his widow Sherry Broder, spent the following 20 years searching for hidden assets of the Marcos family to pay the victims and fighting the Philippine government which would make claims to the found monies whenever assets were found. Van Dyke was also a learned scholar on the law of the seas.

29 November 2011

I Still Love You Piolo


Dear PJ,

Since everyone is coming out with their truth, I will offer mine. You made it late onto my crush radar. Actually, despite playing Jules in Dekada 70 and finding myself attracted to the character in your performance, I barely batted an eyelash for you there and even less so elsewhere. Marvin Agustin was the main crush of my late adolescence and twenties and I never understood why you had such a fan base. (I recall one discussion with my lola, one of your early and staunch fans, but I still couldn't understand.)

However, things started to change though when I saw Dreamboy. Then Sa Piling Mo and Walang Kapalit. There was something in the performance of betrayal, unrequited love and bucking social norms that seemed so real in your theatrical expression. I became captivated. Then, I lived through Lobo and the tragedy and pain of Noah Ortega of not being able to understand clearly friend from friend, light from light, true love from true love -- clouded by the betrayal of those closest to him.

I found the whole sex video scandal with that guy that looked like you to be funny. At first I was a little unsettled by the Lolit Solis fiasco. I thought your handlers were pushing the envelope too far. But then as it played out, it was a little bit funny and so I saw it as it was comedy. (However, I marginally remained concerned for the potential of leveraging too much risk and remaining unconscious of the part of you that no longer wishes to be bound to your tightly manicured persona.)

Then I happened upon a picture of you with Iñigo, your son -- long after it had been taken. Suddenly, these feelings of mine for you came into sharp focus. This photograph of you with Iñigo was not taken by your handlers at ABS-CBN but instead showed a side of you most of us never get to see. All was revealed. The painful truth that sits like the purloined letter in the minister's study was there with the deep and genuine love for your son.

Your appeal is in part because of the beauty and grace you put on such tremendous suffering over an incredible inner conflict. Perhaps now is the time to transcend the inner conflict and emerge as a new consciousness that is able to integrate the two seemingly opposing points of view. Or perhaps, it is not the time and a shadowy figure like a flash of light will enter the room, take the lamp, throw it into the river and jump off the azotea into the darkness. What will be your real legacy to Iñigo?

Whatever you decide, I will support it. Because, I understand you, PJ.

27 November 2011

Movie Review: A Very British Gangster

You may be wondering what a documentary about a British mafia type is doing in a movie review on my blog. I'll get to that momentarily.

The documentary is about Dominic Noonan who is a well-known ethnically Irish criminal gangster in Manchester, England. He allows the filmmaker total access to how he lives his daily life. He and the police are constantly playing cat and mouse. Also, which is strange and unusual, he acts as a neighborhood mediator and judge. There is one scene where we watch how he mediates a problem that the police are unable to resolve, makes a decision on the case and then moves on ot the next thing. It was precisely what all the books and movies about New York gangsters hinted at. That gangsters acted like para-governments, para-militias, para-law-enforcement, para-social work department.

In any event, Dominic constantly had an entourage of young men around him -- in addition to his young son and nephew. Then the shocker comes. The filmmaker asks him if he has a touch of lavender in him. I wondered if that was some kind of expression for something in England. Dominic clarified. He's 100% gay. Yes, he had a kid. But he's totally gay. So, the documentary is a documentary about a notorious GAY gangster. Apparently, he's not the first British gay gangster. Another well known gay British gangster was Ronnie Kray.

I wished that there had been more focus on that part of his personal life. Has he a partner? Does he sleep with his young men who follow him around? Does he sleep with hustlers? What does his love life look like?

It's an otherwise interesting look into criminality in Manchester, Britain among ethnic Irish working class gangsters -- who are gay.

25 November 2011

Movie Review: King and the Clown 왕의 남자

I saw this movie about 5 years ago just after it was shown in Taiwan from a pirated copy of a theatrical release. The most evil of evil ways to watch a film. But it did not appear on DVD for many more years and had I waited, I would have never have seen it. So I don't feel so bad.

This movie follows the tragic gay theme of Korean movies. Please review my review of the touching Bungee Jump of their Own.

This movie revolves around this character, androgynous lady-boy, Gong-gil, who along with Jang-san, are clowns. That is they go from village to village pantomiming and acting in comedic skits making fun at society. One day they were doing a skit mocking the king and were promptly arrested by the military. In Korea of the 1500s, there was a crazy king named King Yeonsan. And that's who they were mocking.

In jail, Jang-san is able to persuade someone to let them perform for the King. If they make him laugh, they can be pardoned. If they don't, they can be executed. They are so nervous in their performance that they aren't funny but shortly before being executed, they are able to execute one last skit which makes the King laugh. Of course, it also happens that the King has a major crush on Gong-gil (played by Lee Jun-ki).

Lee Jun-ki when he's not in drag

Well, I won't repeat the whole story or the ending, but I can suggest that its in the same ending-genre as Bungee Jump of their Own. And it's a true love story with all the epic tragedy -- there are tyrants, crazies, blinding, scheming concubines, etc.,. In some ways, its like the 2000 version of Chunhyangdyun minus the pansori storyteller. I have not watched this movie recently but someone mentioned that they were looking for a copy and it reminded me that I ought to write a review. This is totally a date/cuddle-up-and-watch movie. Hopefully you can find it and watch it.

24 November 2011

Book Review: Buddhism, Sexuality and Gender

José I. Cabezón is the XIV Dalai Lama Endowed Chair in Tibetan Buddhism and Cultural Studies in the Department of Religious Studies at University of California Santa Barbara. He was formerly Associate Professor of Philosophy of Religion at Iliff School of Theology. He edited this book about twenty years ago.

Although politics and religion are always deeply intertwined, for Buddhism, there has never been a central figure or a group of central figures. The development of Buddhism has been much more fragmented and rhizomatic. It is true that there are a few philosophically consistent groupings: the Theravada, the Mahayana, the Vajrayana and the Pureland sects. However, about every variable you could consider in terms of variation in schools, varies so widely within and among the four I just mentioned that the designation may be considered just geographic by another name.

Okay, I remember reading this book as a teenager and being confused. And so I don't know that I would recommend reading this whole book unless you have some vague background in Buddhist philosophy, history or similar because sometimes it gets technical and can be confusing. There are several important themes which any given reader will likely not be interested in. For a general reader wanting to know more about "Buddhism, Sexuality and Gender" I'd pick just a few chapters.

First, the chapter "Attitudes toward Women and the Feminine in Early Buddhism" by Alan Spoonberg is a concise treatment of how the textual ambiguity in the Buddha's pronouncements regarding gender equality (there is very little) eventually allowed patriarchy to slip back into the religious community and tragically, today, only in Chinese Buddhist religious communities are their fully ordained nuns and nuns from other sects who go to China, Hongkong or Taiwan for full ordination are looked at suspiciously and derisively, at best, and as apostates, at worst. (This is one area where the monastic hierarchy in many Buddhist communities really could work on improvement.)

Second, the chapter "The Gender Symbolism of Kuan-yin Boddhisattva" by Barbara Reed was also a concise explanation for how one of the few well known Buddhist icons in the world (the other being the historical Buddha and the other Amida Buddha) went from being a boyish young man to a woman. This bodhisattva is Avalokiteshvara, the bodhisattva of compassion is also known as Kuan-yi, Kannon, 観音, Quán Thế Âm, Chenrezig, 관세음보살, and Жанрайсиг. HH XIV Dalai Lama is the reincarnation of the bodhisattva/buddha. Avalokiteshvara is Buddhism's first transgender Buddha, and a very popular one. This chapter gives a very concise explanation of the how and why.

Third, the chapter "Kukai and the Tradition of Male Love in Japanese Buddhism" by Paul Gordon Schalow. I find the present normative homophobia of Japanese and diasporic Japanese communities to be so curious. This is true, especially, because Japan has such a long, rich and proud historical tradition of gay sex. Of course, for those really interested in this topic, there is the book Male Colours. In any event, the chapter gets to the point. Just consider these two Japanese gay sex poems:

White snow on a mountain peak
turns to pure water on the rocks
and finally flows down.

I gaze up at the distant top of a cedar tree;
the wind blows strong,
and even the cedar bends.

The version I read was a 264 page paperback published by SUNY Press (December 13, 1991), ISBN-13: 978-0791407585. It is written in English. The lowest price I found online was used at abebooks.com.

22 November 2011

Is the COMELEC/DOJ panel constitutional?


GMA's attorneys have argued in the press that the COMELEC/DOJ panel is not constitutional because COMELEC must be independent according to the constitution. I thought I would examine this issue and develop an opinion before the Supreme Court ruled. I have not read GMA's briefs or motions nor have I read the government's position. Instead, I am answering the question of whether the COMELEC/DOJ panel is constitutional.

I

The original law, Batas Pambansa Blg. 881, provided at Section 265:

Section 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and prosecution, if warranted.

This provision was subsequently amended by Republic Act No. 9369 to read as follows:

"SEC. 265. Prosecution. - The Commission shall, through its duly authorized legal officers, have the power, concurrent with the other prosecuting arms of the government, to conduct preliminary investigation of all election offenses punishable under this Code, and prosecute the same."

It is on this basis that the government established the so-called "joint panel" to investigate the election sabotage case of GMA. Let us next look at the requirements of COMELEC in the constitution:

Art. IX, Sec 1 of the 1987 Constitution states: "The Constitutional Commissions, which shall be independent, are the ... Commission on Elections[.]" What does that independence mean?

If read in relationship to the other common provisions of the Constitutional Commissions, independence includes:

Commissioners may not hold any other office, manage or control any business or practice any profession. (Section 2, Art IX-A) The salary of the Commissioners cannot be decreased during a commissioner's term of office. (Section 3, Art IX-A) Commissions have the sole and exclusive responsibility for the management of their offices. (Section 4, Art IX-A) Commissions enjoy fiscal autonomy (Section 5, Art IX-A) Commissions have the authority to establish its rules of practice (Section 6, Art IX-A)

It does not appear that working together on a preliminary investigation violates any of the above. Further, COMELEC voted under its ordinary procedure without any member of the Department of Justice to proceed to file and prosecute the case.

The original law BP 881 was passed well before the 1987 Constitution. The 1987 Constitution included under Section 2(6), Art IX-C, the constitutional power of COMELEC to prosecute election crimes, but it did not grant that power to COMELEC to the exclusion of the executive and it did not have the effect of repealing Section 265, BP 881. The original law gave COMELEC exclusive preliminary investigatory jurisdiction for 4 months. The amended law changed the jurisdiction to investigate and prosecute election crimes concurrently to COMELEC and the Executive Branch, which is consistent with the constitution.


II

Finally, GMA signed R.A. No. 9369 into law in 2007. She ought to be legally estopped from taking the position that it is now unconstitutional. Legal estoppel partakes of the positive rules of judicial procedure based on manifest justice and to a greater or lesser degree, on considerations of orderliness, regularity and expedition of litigation. In other words, a party must not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to or inconsistent with one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by this action.

If GMA were permitted to maintain that a law that she signed into law in 2007 is unconstitutional, she would undermine the very purpose of the office of the President and promote manifest injustice. Under Sec 27(1), Art VI provides the President can veto a bill and return it to Congress. GMA did not do that. If the bill became law over her veto, she could have filed a complaint for declaratory relief seeking to have the law deemed unconstitutional under Rule 63. She did not. Instead, two election cycles have passed since she signed the bill into law and now challenges it when it is being used to prosecute her criminal misconduct during the first of those two elections.

If she admits that it was unconstitutional and she abrogated her duties to veto and subsequently challenge it in court, then she would have to admit that she violated her duty as a public officer. Section 1, Art XI states: "Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."

III

For these reasons, Section 265 of B.P. Blg 881 as amended by R.A. No. 9369 which permits the COMELEC to conduct preliminary investigations in cooperation with executive departments, with concurrent powers to investigate and prosecute electoral crimes, does not offend the constitution. The court should make this ruling for the public good as an exception to the prudential doctrine otherwise that GMA is legally estopped from raising the question of R.A. No. 9369's constitutionality.

IV (Update)

I have since learned, by the Supreme Court denying the issuance of the TROs, that GMA is not raising the issue of unconstitutionality but instead her husband and Abalos. Since Mike Arroyo was not subject to the filing of the complaint for election sabotage, his petition should be dismissed since he no longer has standing to challenge the constitutionality of the COMELEC/DOJ joint investigation. What is standing?

"Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Anti-Graft League of the Philippines v. Romero, G.R. No. 97787. August 1, 1996, citing Baker v. Carr, 369 U.S. 186 (1962).

Because it has been four years and two elections since the passage of Republic Act No. 9369 and many years since the passage of B.P. Blg. 881 and the 1987 Constitution that if Mike Arroyo had standing as a taxpayer or voter to challenge the law, he would be barred by the doctrine of laches. That is the doctrine that a claimant may not sit on his rights. One of the reasons for this doctrine is to prevent people from gambling with public resources and when dissatisfied with the results of public processes, challenge some government act that could have been challenged earlier saving the public from committing its resources to the challenged act.

Then the question is whether the petition remaining of Abalos is properly before the Supreme Court? I say no.

"Plainly, the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue." J. M. Tuason & Co. v. Court of Appeals (3 SCRA 696)

To entertain the merits of a petition like Abalos' in the Supreme Court would signal to those wealthy individuals under investigation by prosecutors to make sure to file petitions with the Supreme Court first before criminal charges are filed to avoid having to be subjected to the ordinary course of justice.

For this reason, I would remand the surviving petitions to the Pasay Regional Trial Court for proper disposition in relationship to the actual controversy at issue.

19 November 2011

An Idiot's Guide to How GMA was Arrested


October 1, 2011
GMA Dr. Julia Gopez-Cervantes issued a medical certificate saying GMA has "metabolic bone disease and osteoporosis due to hypoparathyroidism with electrolyte imbalance and Vitamin D deficiency. Cervantes further stated that "barring any complications, [GMA] should be fully recovered from her spine surgery in six to eight months. Her metabolic bone disease needs lifetime maintenance treatment."

October 19, 2011
The House of Representatives issued an amended travel authority for GMA for the period October 22-December 5 to the US and Germany and to include Singapore, Spain and Italy, to seek medical consultations with specialists and also to go to two NGO type conferences.

October 20, 2011
GMA filled a written request before the DOJ for the issuance of an allow-departure order (ADO)

October 21, 2011
Arroyo submitted an affidavit listed down only three destinations – Singapore, Germany and Austria.

October 24, 2011
Arroyo again filled a written request before the DOJ for the issuance of ADO.

October 27, 2011
Another watchlist order was issued against the former president, this time, based on two electoral sabotage complaints against her.

October 28, 2011
DOH Sec. Ona visited GMA at her Quezon City resident to determine whether her condition was life threatneing and whether her health will deteriorate if she is not permitted to go abroad. Ona later reported to DOJ that "Mrs. Arroyo is recuperating reasonably well".

November 2, 2011
GMA submits a detailed itinerary to DOJ showing that she intends to seek medical consultation in Singapore (October 24, 2011, October 31, 2011 and November 8, 2011), Germany (November 17, 2011) and Spain (November 14, 2011)

November 8, 2011
The Arroyo camp petitions the Supreme Court to nullify the watchlist order against them and DOJ Circular No. 41 which was promulgated by Arroyo's administration as unconstitutional.

November 8, 2011
DOJ denied the request of Arroyo for an allow-departure order (ADO)

November 15, 2011
The Supreme Court issued a Temporary Restraining Order (TRO) on the implementation of the department circular no. 41 and the watchlist orders, voting 8-5, without giving the government a chance to argue its side. GMA submitted affidavits claiming she had to go abroad because of an medical emergency while also submitting affidavits by her physicians and surgeons saying that barring any unforeseen circumstances, Arroyo should be fully recovered in 6 months. Read Justice Sereno's excellent dissent.

The TRO includes three conditions: No. 1, they must post a PHP 2M bond; No. 2, they must appoint someone to accept legal process for them; and No. 3, they must register with the consulates of the Republic when abroad. The Supreme Court orders the cashier's office to remain open for an additional hour. GMA is able to post the PHP 2M bond. GMA also submits a power of attorney which is defective for purposes of Condition No. 2. However, the Clerk of Court is rushed to certify the condition is met.

Later that night, GMA arrives at NAIA in an ambulance with her neckbrace and a surgical mask with tickets for every flight leaving the country. Immigration officials bar GMA from leaving the country under order of Secretary de Lima. Arroyo then goes to St. Luke's.

November 16, 2011
The former president postponed her planned trip today citing fluctuating blood pressure. It is not known whether she decided not to take her blood pressure medication on this day to create new medical emergencies.

November 17, 2011
Arroyo petitioned the Supreme Court to order the DOJ and BI to allow her to leave the country. GMA again postponed her trip.

November 18, 2011
After failing to receive counter-affidavits from GMA, COMELEC files charges of election sabotage in the Pasay Regional Trial Court. COMELEC requests a hold order for travel.

The Supreme Court meets en banc and re-affirms the TRO issuance. However, they vote and agree that the Condition No. 2 has not been met and the TRO is not effective. The Court also orders deLima to show cause why she should not be held in contempt of court. SC Spokesperson Midas Marquez informs the press that the TRO is effective. But in a subsequently published opinion of Justice Sereno, is admonished for misinforming the public. Read Justice Sereno's opinion here.

The COMELEC case is raffled and the judge issues an arrest warrant for the individuals charged, including GMA. GMA is subsequently arrested at St. Luke's by PNP and put under hospital arrest with armed guards.

16 November 2011

Arroyo et al v. the People

GMA drums up support among supporters
as she attempts to flee the country in neckbrace, wheelchair and surgical mask


As many may be familiar with now, GMA won a temporary restraining order from the Supreme Court which, in effect, allows her to leave the country without any obstacle. However, this order has apparently not been served on the DOJ or the Solicitor General and so the Bureau of Immigration and the Civil Aviation Authority did not allow GMA and her husband to leave the country last night, amid much fan fare.

I
The order does not reach the merits of GMA's claim that she has a constitutional right to travel in realms beyond the reach of our government. Rather, a TRO is issued if there is imminent irreparable harm by maintaining the status quo until a decision on the merits can be rendered. In this case, however, the court provided no explanation or recitation of facts that would lead them to conclude that they were facing imminent irreparable harm. There are three words there, each with legal significance. First, there must be harm. Second, it must be irreparable. That means, that if the harm were to occur, it could not be adequately compensated for by a monetary award or some other relief at the end of the case. Third, it must be imminent. It is not sufficient to say that sometime in the undefined future, there will occur irreparable harm. That must occur at this moment.

It is difficult to say that GMA will face irreparable harm because, first, the Court has not been given the opportunity to weigh the expert medical evidence for and against GMA's claimed condition. Second, the government has offered to pay at its expense the travel costs for GMA's physicians of choice to come to the Philippines to conduct tests, evaluations and medical procedures. You see, this offer itself chips away at both the imminent requirement and irreparable requirement.

I have read elsewhere from defenders of GMA and Corona that is was a moment for the rule of law and the Supreme Court has upheld the fundamentals of separate branches of government, etc., etc.,. But I would like to point to a decision rendered by the Supreme Court just a few months ago quashing a TRO issued against GMA by a lower trial court for failing to meet the standards of preliminary injunctive relief.

First, please review the Supreme Court order on Raissa Robles blog. Next, please consider G.R. No. 177130 (2011), Ermita v. Aldecoa-Delorino. In that case, petrochemical companies sued GMA for a 2006 executive order implementing tariff reductions on plastic imports and received a preliminary injunction by the lower court, by Judge Aldecoa-Delorino. GMA appealed to the Supreme Court the issuance of the preliminary injunction. The Supreme Court (the same GMA 8 voting in favor) wrote:

It is well to emphasize that the grant or denial of a writ of preliminary injunction in a pending case rests on the sound discretion of the court taking cognizance thereof. In the present case, however, where it is the Government which is being enjoined from implementing an issuance which enjoys the presumption of validity, such discretion must be exercised with utmost caution. Executive Secretary v. Court of Appeals, enlightens:

In Social Security Commission v. Judge Bayona, we ruled that a law is presumed constitutional until otherwise declared by judicial interpretation. The suspension of the operation of the law is a matter of extreme delicacy because it is an interference with the official acts not only of the duly elected representatives of the people but also of the highest magistrate of the land.

And following jurisprudence, these requisites must be proved before a writ of preliminary injunction, be it mandatory or prohibitory, will issue:

(1) The applicant must have a clear and unmistakable right to be protected, that is a right in esse;

(2) There is a material and substantial invasion of such right;

(3) There is an urgent need for the writ to prevent irreparable injury to the applicant; and

(4) No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. (emphasis supplied)a1a

It is thus ineluctable that for it to be entitled to the writ, the [Plaintiff] must show that it has a clear and unmistakable right that is violated and that there is an urgent necessity for its issuance. That [Plaintiff] had cause of action and the standing to interpose the action for prohibition did not ipso facto call for the grant of injunctive relief in its favor without it proving its entitlement thereto.

Transfield Philippines, Inc. v. Luzon Hydro Corporation, illuminates on the right of a party to injunctive relief:

Before a writ of preliminary injunction may be issued, there must be a clear showing by the complaint that there exists a right to be protected and that the acts against which the writ is to be directed are violative of the said right. It must be shown that the invasion of the right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage. Moreover, an injunctive remedy may only be resorted to when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation.

The Supreme Court did not go through any of this analysis. Instead, it did the apparent opposite of what it reversed the lower court for doing and has given GMA and her family a free pass. And, in this case, it is not clear why GMA can't wait a week or two before leaving the country to allow oral arguments to be had. What is the rush?

Also the remedy seems so extreme. The language of the restraining order seems to enjoin the power of the DOJ and Bureau to stop ANYONE from leaving the country. So, the response to the claim that GMA will suffer irreparable harm by not being allowed to leave the country is to allow everyone and anyone to leave the country.

II

While in modern times, we tend to see the courts as powerful institutions, judicial power is founded on credibility and reputation. Courts do not have armies. Courts do not raise revenue and maintain treasuries. If the court ordered something and no one listened to them, the court would have no way to enforce its decision. Instead, they simply have the power of persuasion and influence. There is a number of ways courts' build their credibility and reputation. One is by consistency and following their own precedent.

As we see, in this instance, however, the only thing consistent about the prior law on preliminary injunctions and the present case, is that Gloria Macapagal Arroyo can do whatever she wants. The previous cases on preliminary injunction by substantially the same Supreme Court have a long and stable history regarding the powers of the court and the standards by which they will issue injunctive relief. This present case does not do that at all.

And this is the danger. At the moment the DOJ is not following the order because they have not been legally notified of the order. That will work or the moment. However, when the DOJ and solicitor general are served, then they will be faced with a different set of issues.

Do they ignore the order of the Supreme Court? That would trigger a constitutional crisis of epic proportions -- much bigger than the mindless interference of the Supreme Court in the impeachment of Merceditas Gutierrez. That is one possible solutions. But there are others.

Ultimately, this decision which fails in every respect to comport with the Supreme Court's own prior law and utterly fails to provide any reasons for its decision invites the government and the public to ignore its order. Corona need lecture no one but himself and his peers regarding the lack of respect for the Supreme Court.

III

First, the Department of Justice and Bureau of Immigration could revoke GMA and Mike Arroyo's passports and require them to follow the process to obtain new passports. By my calculation, this would delay any departure by at least a month. They could also require that the DFA not allow any part of the process to be expedited.

Second, the DOJ and Bureau could issue new circulars and new watchlist orders on GMA and Mike Arroyo. The present preliminary injunction only relates to Circular and watchlist orders.

Third, the Department of Tourism could refuse to accept payment for the travel tax and allow her to leave and require under Section 5 of P.D. No. 1183 that GMA establish her capacity to pay the government all of its costs in having her extradicted if she refuses to return, from countries that do not have extradition treaties.

There are also many regulations and rules that provide criminal and civil penalties for not being obeyed. If the DOJ needs more time to investigate GMA before charging her with a crime, they might as well charge her with these many small bailable offenses. While it is true that she is allowed bail, the process to be bailed takes some time. American gangster boss Al Capone went to prison for failing to file tax returns on his illegal earnings.

IV

Aquino's administration is under every duty and obligation to halt GMA's continued destruction of all the institutions of our government. This includes ignoring the Supreme Court in its utter lawless decisions.

10 November 2011

Arroyo and the Writ of Ne Exeat

The ontology of Gloria Macapagal-Arroyo

In both the common law and civil law tradition, the sovereign's power to prevent its subjects from departing the realm has been expressed as the power of "ne exeat" or the writ of ne exeat. Ne exeat means "that he not depart." In the long history of "ne exeat", it has been used to prevent subjects from leaving a kingdom without a license from the king, to prevent debtors from leaving the realm without repaying their debts, and to prevent a husband or wife from removing property from the jurisdiction of a court. Most recently, it has been discussed in relationship of the power of a parent to prevent another parent from removing a child from one country to another.

Beames wrote: "this Writ is now mostly used where a suit is commenced in the Court against a Man, and he designing to defeat the other of his just demand, or to avoid the Justice and Equity of this Court, is about to go beyond Sea, or, however, that the Duty will be endangered if he goes."

Nevertheless, the power of ne exeat is something that surely subsists among the recognized powers of the sovereign. What would be the meaning or significance of national boundaries if the price of disobedience is simply a one way airplane or ship fare to another country? The question is what is the extent of that power. In countries where the power of ne exeat continues, it is used in both civil and criminal cases. The state and the courts must have some effective power to bring about justice. I recognize that there must be a balance. The medieval Spanish practice, which remained in the Philippines, until Independence in 1898, of requiring the approval of the parish priest in order to leave one's village, is tyranny. And the international community has established a framework to accept legitimate refugees. It's called the Convention Relating to the Status of Refugees (1951).

But Gloria Macapagal-Arroyo, having been sued on plunder and being investigated for election fraud, cannot be said to be a legitimate refugee under the convention. And considering powerful politicians have many opportunities to thwart the public prosecutor before a matter even makes it before a regular trial judge with the seemingly unlimited interlocutory appeals of simple criminal charges and informations, the process could be used to frustrate the ends of justice.

Next, I have reviewed the medical information disclosed to the public regarding the condition of Macapagal-Arroyo. It appears, that she has been aware of her degenerative disorder for some time. All cases of parathyroid disease is one of very slow degeneration. It is unclear what her reasons were for waiting so long to address the underlying parathyroid problem or why the medical profession in the Philippines cannot address her symptoms. The fact that she creates a medical emergency for herself, does not thereby increase the burden on the public prosecutor to prohibit her from leaving the country.

The standard test for injunctive relief is helpful: what is the likelihood of the prosecutor to prevail on the merits, what is the irreparable harm if the injunction is not granted, does the balance of harms weigh in favor of the prosecutor and would public policy support injunctive relief?

It becomes obvious that if a fugitive is permitted to depart from the jurisdictions of the courts and enter into realms beyond their reach, that will be irreparable harm. It is also true that the case for why Arroyo must go abroad has not been clearly established and so it is difficult to assess what harm, if any, will come to her of the prosecutor's doing. Just because she refuses to get medical treatment in the Philippines and thereby exacerbates her degenerative condition, does not increase the harm to her at the cause of an injunction. Finally, there is a clear public policy in favor of having crimes of public officials like corruption, electoral fraud and plunder be resolved to finality by the courts.

From the standard from an injunction (or a writ of prohibition in some parts), the standards have been met. As is regularly stated, if there is substantial likelihood of irreparable harm, the balance of harms favors the prosecutor and public policy supports the issuance of an injunction, then the question of prevailing on the merits of the case becomes less important. At this point, it would be difficult to meaningfully prove up one's case against Arroyo if the investigation is continuing.

The standards for exercising ne exeat powers is much lower that injunctive relief. So, if an injunction would be appropriate to prohibit travel, as the Secretary of Justice has done administratively with her order, the sovereign would obviously have the power to restrain Arroyo from departing the country through its ne exeat powers.


ceci n'est pas une maladie