A rainy afternoon in Bulacan

Monday last week, braving pouring rain and heavy traffic, I made my way to a small community in Norzagaray, Bulacan. I had been invited by a group of sometime clients to a celebration. After over a decade of effort, they had finally signed an agreement which would grant them formal rights over the land on which they had their homes, and they wanted to mark the occasion with food, alcohol, and, of course, the inevitable round of videoke songs, in the company of friends and associates — a circle which included me, their sometime lawyer.

And it was there in Bulacan, under a tarpaulin leaking rainwater, over steaming bowls of lomi and bottles of lukewarm Red Horse Beer, listening to my companions talk animatedly about their plans for the future of their community, that I was once again reminded of why I became a public interest lawyer.

It was not so much the fact that I was overwhelmed by the copious (though in my opinion, largely undeserved) thanks they gave me (though I was overwhelmed, believe me). Nor was it the chance to bask in the pleasant afterglow of a long and hard-fought legal victory. It was simply the rare opportunity to be part of something that actually felt genuine.

You could see it in their eyes, a shine that was equal parts hope and confidence, the realization that they, through their own efforts, had managed to secure a place for themselves despite all the disadvantages of poverty and lack of influence. It was a wonder, and a privilege, to behold.

The cynics among us will always maintain that everything we do is ultimately done out of self-interest. If this is true, then that rainy afternoon in Bulacan was one of the few times I fulfilled mine — to witness, firsthand, the overwhelming humanity of a group of ordinary people winning for themselves a long-sought and much-deserved measure of dignity and security.

Stifling free speech in the workplace

An article I wrote on a recent Supreme Court decision and its implications on free speech in the workplace just came out on Newsbreak. Here is the link to the original article. The full text follows –

The freedoms of speech and of expression have long been acknowledged as indispensable to a democratic society. The eminent American jurist, Benjamin N. Cardozo, speaking for the United States Supreme Court, stated that the freedom of thought and speech “is the matrix, the indispensable condition, of nearly every other form of freedom.”  Our own high court has characterized the freedom of expression as being “a fundamental postulate of our constitutional system.”

International human rights law likewise recognizes the fundamental importance of free expression. Article 19 of the Universal Declaration of Human Rights proclaims that “Everyone has the right to freedom of expression and opinion” and that this right includes the freedom “to seek, receive, and impart information and ideas through any media and regardless of frontiers.”

But despite this widely recognized primacy of the freedom of expression, the Philippine Supreme Court, in a decision handed down by its Second Division last November, has laid down a new doctrine that threatens to seriously undermine the exercise of this essential right in the context of labor relations.

The said decision concerned a labor dispute between the management of Dusit Hotel Nikko and members of its employees’ union. In the course of the dispute, several employees came to work with shaved heads and were prevented from working by the hotel. Speaking through Associate Justice Presbitero J. Velasco, Jr., the Court, in its decision in the case of NUWHRAIN-APL-IUF Dusit Hotel Nikko Chapter v. Court of Appeals,  ruled that the act of several hotel employees in reporting for work with shaved heads, ostensibly in violation of the hotel’s grooming standards, constituted an illegal strike and was “not a protected action;” in other words, that the act of shaving one’s head as a means of protest transgressed the limits of freedom of expression and could validly be restricted by law.

The Constitution and law recognize two types of activities that can be undertaken by workers collectively – strikes and other peaceful concerted activities.

A “strike” is explicitly defined as “any temporary stoppage of work by the concerted action of employees as a result of an industrial dispute.”  The right to strike is recognized under the Constitution,  but may only be exercised “in accordance with law,” that is in the manner prescribed and with due observance of the requirements set forth under the Labor Code.

Any other “peaceful concerted activities” short of a strike are not, however, subject to the same degree of regulation. These concerted activities fall under the mantle of the constitutionally protected freedoms of speech, expression, and assembly, and may only be prevented or restricted upon a clear showing that a “clear and present danger” to public interest exists.

The legally allowable degree of regulation, therefore, is determined by how a particular act is characterized: Is it a strike, in which case more stringent restrictions may be applied? Or is it another type of peaceful concerted activity, which can only be restricted when there is a clear danger to public interest?

In finding that the act of coming to work with a shaved head, even without an express refusal to work, amounted to a strike as it forced the hotel to “choose between allowing its inappropriately hair styled employees to continue working, to the detriment of its reputation, or to refuse them work,” the Supreme Court has dramatically expanded the legal definition of strike. It has characterized speech which is “detrimental to the employer’s reputation” as amounting to a strike and therefore subject to more stringent restriction. In so doing, it has opened the door to more intrusive regulation of activities which in the past would be considered as protected under the freedom of speech and expression guarantees of the Constitution.

In past years, the Supreme Court has exercised a tremendous amount of care in order to avoid precisely this kind of encroachment into the constitutionally protected sphere. In one decision, the Court upheld the primacy of freedom of expression over property rights, and allowed workers to join a rally even during working hours. According to the Court:

“As heretofore stated, the primacy of human rights — freedom of expression, of peaceful assembly and of petition for redress of grievances — over property rights has been sustained. Emphatic reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes Our duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all.”

In fact, even in cases where the Court has found an illegal strike to have occurred, it has taken pains to distinguish between the invalidity of the strike – for having failed to adhere to the process required under the Labor Code – and the protected character of specific acts done during the strike. For instance, in one case where the Court declared a strike at a hospital illegal, it nonetheless clarified that the “wearing of armbands” and “putting up of placards” cannot be construed as illegal, as “they are within the mantle of constitutional protection under freedom of speech.”

The Dusit decision, unfortunately, does away with such fine distinctions, and raises concerns about the way in which the freedoms of speech and expression will be construed within the workplace in the coming years.

To begin with, it is an abrupt turnaround from the recognition of the primacy of the freedom of speech particularly with respect to property rights. Dusit implies that if workers’ speech is detrimental to an employer’s reputation – in other words, it “embarrasses” the employer – then it may be disallowed, and, in fact, punished. This reverses the long-established hierarchy of rights that give more weight to free speech than to property interests.

Furthermore, by expanding the definition of a strike, and, as a consequence, the range of workers’ activities that may be subject to more stringent regulation, it severely limits the freedom of workers to speak and express themselves within the workplace. It is easy to envision that Dusit may eventually be used to restrict activities such as wearing of pins or armbands or displaying placards or signs.

For employees in the public sector, this expanded definition has even direr consequences. Since public employees are allowed to organize and engage in peaceful concerted activities but are prohibited by law from conducting strikes, expanding the notion of “strike” to cover not only cases of actual work stoppage but also any action “embarrassing” to the employer may eventually lead to a total restriction on any type of activity critical of or in protest against the government.

This will undoubtedly constitute a significant erosion of these fundamental freedoms. The mere possibility that the Dusit decision may signal a sea change in the State policy on freedom of expression within the workplace is threat enough. For as pointed out by the Court:

“Because these freedoms are “delicate and vulnerable, as well as supremely precious in our society” and the “threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,” they “need breathing space to survive,” permitting government regulation only “with narrow specificity.”"

If we are to continue to uphold the tenets of our democratic society, we should strive our utmost to ensure that that crucial “breathing space” continues to be respected by our courts.

Institutionalizing morality

An interesting, if not exactly novel, point was raised in a forum I was at yesterday. In essence, it contends that the more serious concern with respect to the Philippine government and legal system is not the inadequacy or inefficacy of our current laws, but the character of the public officials implementing them.

Now normally, as I’ve indicated, this would hardly be a new argument. After all, I’ve heard it, perhaps phrased slightly differently, from countless fellow citizens, usually as a prelude to some appeal for greater “spirituality” in society. But with no less than the Chief Justice, our highest judicial officer, stating just last week that what the country needed was “moral force,” I think that the position merits some discussion.

To start with, I have to say that on the most basic, instinctive level, I find the first part of the argument appealing. Who wouldn’t, particularly in a country where public “servants” already awash in cash have no qualms about dipping further into an already depleted national treasury while cash-strapped taxi drivers, for all their poverty, nonetheless see fit to return thousands of pesos inadvertently left in their cabs. It’s easy enough to see that personal “character” and “morals” must play a role there somewhere.

But it is with the other component of the position that I have some difficulty with. I mean sure, we could certainly use more honest and upright women and men in government, but does this necessarily have to preclude changing the existing legal system as well?

Ideally, laws are in place precisely to encourage certain kinds of behavior and to discourage others. Granted, law and language being as subject to “interpretation” as they are, they will not always be used or followed in the manner originally “intended.” However, I do not think that this “uncertainty” in legal text unavoidably implies that one law (or one way of phrasing a law) is as good as any other. In other words, the impossibility of coming up with an ultimately idiot-proof (or perhaps, tyrant-proof) legal text should not be a justification for not striving to come up with a tighter formulation.

Just take the case of many of our public laws, a significant portion of which were enacted under the less than ideal conditions of the Martial Law regime. Or take the case of our law on inciting to sedition, which is still largely based on statutes enacted by the Americans during the early years of colonization. These laws, which we continue to observe to this day, given their context and original purpose, are, quite unsurprisingly, heavily biased toward upholding executive power as against the power of a popularly elected legislature, and the right of citizens to free speech.

I suppose we can argue that if we had a “good” President, who had a strong personal commitment to democratic ideals, it would not matter if these laws were still on the books — she or he would simply not apply them in a manner which tended to stifle democratic discourse. But that does that mean we should leave them as is, crossing our fingers that that “good” President comes to power? Or do we try and change them, making it more difficult for these laws to be “interpreted” in an abusive or oppressive manner, just in case we get a “bad” President?

Personally, I’d rather we hedge our bets.

Rights and wrongs

The start of another year! So I suppose this is a good a time as any to resume posting.

For the past few weeks, the headlines — and for that matter, most of the inside pages as well — have been dominated by news about the Alabang 3 and the alleged million peso bribes offered to agents of the Philippine Drug Enforcement Agency (PDEA) and prosecutors of the Department of Justice (DOJ) to secure their release. For the most part, the emphasis in the news articles and opinion columns written on the matter has been on the heroism and steadfastness of the PDEA officers who refused the bribes and rebuffed attempts by DOJ prosecutors (who, most would suppose, actually succumbed to bribery) to have the three suspects released. Even my own professor, former UP Law Dean Raul Pangalangan,  characterized the issue, in his column in the Inquirer, as a demonstration of “how the legitimate safeguards of due process can be misused.”

I must admit that from all appearances the issue seems fairly cut and dried. Those involved eve readily fulfill the stereotypical roles we have all come to expect in relation to the local justice system — the rich and privileged suspects, arrogant in their assumption that they can buy their way out of anything; the corrupt government lawyers, only to willing the twist the letter of the law for personal monetary gain; the sleazy private practitioner, adept at using bribes and connections to get his guilty clients off; and standing alone against this tide of iniquity, the idealistic and incorruptible law enforcement officer, a rare gem of virtue amid the decay of the criminal justice system.

But while I do not discount the bravery and integrity of Major Ferdinand Marcelino of the PDEA (or for that matter, do I doubt the corruption that pervades so much of the justice system), I cannot help but be disturbed by the fact that in the wake of this entire affair, concepts such as “due process” and “rights of the accused” have seemingly become inextricably linked to corruption and tolerance for crime; “legal gobbledygook” that repulsively smooth lawyers use as overly technical excuses to get privileged suspects off the hook.

One thing that immediately struck me when this story hit the headlines was the fact that the PDEA refused to release the suspects despite an order from the DOJ, claiming that said order was still subject to “automatic review.” Now while most of us may believe that the suspects were “really” guilty, and that the DOJ order was “really” prompted not by sound legal considerations but by cold, hard monetary ones, should we really be happy at the thought that, in this particular case, instead of seeking recourse through the proper legal venues, the arresting officers simply chose to ignore what on its face was a legal order of release from a duly empowered civilian authority?

Article 125 of the Revised Penal Code requires that suspects arrested without a warrant (as in this case) can only be kept in police custody for a maximum of 36 hours before formal charges must be brought against them in court. In this case, formal charges were not brought precisely because the office that was tasked to bring them, the DOJ, found, at least ostensibly, that the arrest, and consequent search, of the suspects was invalid. Yet notwithstanding this, the PDEA chose to keep the suspects in custody well beyond the legally permitted 36-hour period.

Now I may not exactly be the biggest fan of the DOJ (or more precisely, this particular DOJ), but I am certainly less inclined to allow on-the-ground law enforcement agencies like the PDEA to ignore clearly established legal rules and act in whatever manner they feel is “right,” laws and rules be damned.

While I strongly agree that the corruption in the criminal justice system urgently needs to be addressed, I feel just as, if not more, firmly that simply ignoring procedure is definitely not the way to go.

Two legal wrongs will not certainly make a right.

On the Alston Report

Was writing this brief comment on the Final Report of UN Special Rapporteur Philip Alston — my professor at NYU as it so happens — when the Manila Peninsula “incident” took place. Distractions and all, it came out in the Inquirer on Saturday, December 1.

Earlier this week, Philip Alston, the United Nations Special Rapporteur on Extrajudicial Executions, released his final report on the extrajudicial killings in the Philippines. Consistent with Alston’s earlier public pronouncements on the issue, the report concluded that responsibility for most of the killings, particularly those of leftist activists, could be laid at the doorstep of the military.

According to the report, these extrajudicial executions were carried out as part of a military counter-insurgency strategy which targets leaders and members of “front” organizations of the CPP-NPA. The “official line” of the AFP that the killings were the result of internal purges within the ranks of the communist insurgency was dismissed as being “strikingly unconvincing.”

The report, however, did not stop there. While dismissing the military’s theory of internal purge, it nonetheless recognized the responsibility of the CPP-NPA for some extrajudicial executions, most notably the murder of civilians under the guise of “revolutionary justice,” and the killing of peasants in the course of agrarian reform disputes. The report was just as firm in characterizing these CPP-NPA killings as being clear violations of international law.

Responses to the report have thus far run along predictable lines. A spokesperson for the President was quick to deny that there was an official “policy” supporting the killings. The PNP doggedly insisted that the report was merely an “opinion” and that any of its findings should be supported by “evidence which could stand in a court of law.” On the other side, the party-list groups Bayan Muna, Anakpawis, and Gabriela immediately called for the sacking of top defense officials for their culpability in the killings, while remaining silent on the report’s similarly firm indictment of the CPP-NPA.

These initial reactions, anchored as they are on the vested political interests of these various groups, fail to adequately grasp the purpose and full import of the Alston report.

To begin with, the principal objective of a report by a special rapporteur is to assess a State’s compliance with its legal obligations in a given area under international law. Hence, the report opens with an enumeration of applicable treaties that the Philippines has ratified, namely the International Covenant on Civil and Political Rights and the Geneva Conventions. These form the legal basis for Philippine obligations with respect to the issue of extrajudicial killings.

These obligations, according to a familiar mantra, are those to respect, protect, and fulfill, in this specific case the right of persons to life and to judicial process. The obligation to “respect” requires government to refrain from engaging in extrajudicial killings. The obligation to “protect” mandates government to prevent third parties, whether rogue soldiers or armed insurgents, from doing the same. The obligation to “fulfill” compels government to put in place the necessary mechanisms, such as courts clothed with adequate powers, to ensure enjoyment of the rights.

Under this framework, it does not matter if government does not formally adopt a policy condoning the killings. It still is in breach of its obligations so long as the killings are perpetrated by its agents, in this case the military, and it fails to take appropriate actions to stop them and enforce liability on the perpetrators.

Similarly, as the report is concerned with the larger issue of State compliance, it should not be characterized in the same manner as a criminal investigation. Insistence on the report following the formal rules of evidence observed by courts is misplaced, since what is at issue is not individual criminal culpability, but the adequacy of State action with respect to its obligations under international human rights law.

The fairness or validity of the report, rather, should be assessed by the methodology utilized in collecting the information on which it was based. In the case of the Alston report, it was anchored on extensive interviews from the government, military, and civil society, as well as documents provided by these same groups. In other words, its conclusions are derived from weighing of the information from various, undoubtedly contradictory, sources.

That the report paints a grim picture of the Philippine situation cannot be denied. But rather than viewing it as a public relations dilemma that has to be “handled” or dismissed, government should take up the real challenge of acting on the recommendations set forth in the report. After all, Alston’s investigation was done at the behest of the Philippine government itself. It would be the height of obtuseness, not to mention absurdity, for the government to dismiss the selfsame findings it sought.

Christmas Grifts

Last Thursday, at a breakfast meeting between GMA and around 190 of her congressional allies, it was reported that envelopes containing amounts between P200,000 to P500,000 were distributed. At another meeting held a few hours later, this time between the President and local government officials, more of the money-filled envelopes were given out.

So far, two people have publicly confirmed the cash distribution. The first, Cebu congressman Antonio Cuenco, in a radio interview, stated that the P200,000 was a “Christmas gift.” Later, perhaps realizing that this admission may have been a bit too honest, Cuenco backtracked and said he was merely “joking.” The second was Pampanga Governor Ed Panlilio, who claimed that while he was walking toward his car, he was given P500,000 in a brown paper gift bag by a Malacañang staffer for “barangay projects.”

Even going solely by appearances, there is something extremely suspicious about putting huge sums of cash in envelopes and paper bags and handing them out to public officials. In a government bureaucracy that has created an entire culture out of paperwork and red tape, where money disbursements are made though checks and supported by countless written approvals and endorsements, it is strange to see cash handed out in such a fashion – casually and seemingly without a paper trail. It is a practice you would expect from drug dealers or jueteng operators, but certainly not from upright members of the public service.

However, going by the explanations given by Cuenco and Father Ed, the whole matter crosses over from merely “looking suspicious” to becoming “outrightly illegal.”

The Revised Penal Code states that the crime of indirect bribery is committed by a “public officer who shall accept gifts offered to him by reason of his office.” Similarly, PD 46 makes it crime for “any public official and employee… to receive, directly or indirectly… any gift, present or other valuable things on any occasion, including Christmas, when such gift, present or other valuable thing is given by reason of his official position.”

Clearly therefore, attempting to justify the receipt of P200,000 in cash by calling it a “Christmas gift” only makes it more obviously illegal under the law.

Packaging the distribution as disbursements for “barangay projects” or some other public purpose, on the other hand, will not automatically make it valid. All disbursements of public funds have to be supported by an allocation under the Congress-approved budget, and must follow the proper administrative and accounting procedures. It is highly doubtful that handing over a paper bag with P500,000 cash in a parking lot to a provincial governor constitutes sufficient compliance.

Laws and regulations concerning the giving of money and other assets to public officials have one basic, common purpose – to ensure accountability and integrity in the public service. It should be crystal clear that handing out bundles of cash at breakfast meetings and in parking lots does nothing to further either of these interests.

The Great Escape

On Monday last week, the first day of October, we were witness to what in the Philippines amounts to a minor miracle – a high ranking government official voluntarily relinquishing office.

In our country, where we have come to expect those in power to cling with all their might to public office even in the face of public outrage, widespread scorn, or even court orders, the resignation of Commission on Elections (COMELEC) Chairperson Benjamin Abalos came as a welcome surprise. As some quarters put it, his resignation set “an example” that should be viewed as a “victory for the public.” Similarly, it “spared” Congress and the public from the “tedious and tiring impeachment process.”

But though Abalos’ resignation may indeed constitute a refreshing draught of delicadeza amid the desert of current public conscience, it may not be as selfless as many of us would want to believe. After all, the good Chairperson, in announcing his resignation, was quick to clarify that he was “not admitting guilt for any wrongdoing” nor was he “giving up on [his] crusade to clear [his] name and reputation.” Going one step further, Abalos and his lawyer even announced that they would file libel charges against his two principal accusers, Joey De Venecia and Romulo Neri, based on the “false testimony” they gave before the Senate.

Clearly therefore, the resignation is the furthest thing from a conscience-salving confession. If anything, it would seem that the principal motivation was to avoid an embarrassing, and perhaps potentially explosive, impeachment proceeding in Congress.

Resignation as a means to avoid removal proceedings or disciplinary sanctions, though not always disallowed, is definitely discouraged under our law. For instance, under the Local Government Code, a local official facing removal through a recall election is barred from resigning. Similarly, the Supreme Court has ruled in several cases that “resignation should not be used either as an escape or as an easy out to evade administrative liability.”

The reason for this is self-evident: there is a high level of public interest in ensuring that public officials are held accountable for any wrongdoing committed while in office. While resignation may seem like a “shortcut” solution to the administrative process, it nonetheless prevents full disclosure of the extent of the wrongdoing, as well as imposition of the full set of legal sanctions.

In the case of Abalos, a full blown impeachment would have led, most likely, to disclosures that would provide a more complete picture of the entire ZTE scandal – including the names and involvement of other public figures. Similarly, a conviction by an impeachment court would be a legal finding of Abalos’ culpability that could lead to additional penalties, such as imprisonment.

As it stands, his resignation leaves too many questions unanswered. Of course, one way to find the answers, and prevent his “escape,” is to insist that, despite the resignation, criminal charges must be aggressively pursued against him.

The Legality of Forgiveness

Almost three weeks ago, the Sandiganbayan convicted former President Joseph “Erap” Estrada of two counts of plunder. In convicting Erap the court concluded that the evidence showed “beyond a reasonable doubt” that he had committed the acts constituting the crime of plunder –accepting “payoffs” from jueteng operators and receiving kickbacks from government purchases of certain shares of stock.

The verdict has since spawned a loud and oftentimes vicious public debate on the validity of the decision. Quite apart from arguments concerning the finding of guilt itself, however, a second discussion has emerged. That is, setting aside the question of Erap’s guilt or innocence, should he in fact be made to suffer the penalty of imprisonment?

The Sandiganbayan judgment sentenced Erap to reclusion perpetua or imprisonment from 20-40 years. A number of voices have been raised in support of granting amnesty or pardon to Erap, to the end that he be exempted from actually serving out this period of imprisonment. Senator Mar Roxas, for instance, filed Senate Resolution 135 urging that Erap be pardoned “at the appropriate time and on humanitarian grounds.” A Social Weather Stations (SWS) survey taken a week before the Sandiganbayan verdict showed that 84% of the public favored a pardon either immediately (48%) or after some time (36%).

In the Philippines, both amnesty and pardon have the effect of exempting a person convicted of or charged with a crime from serving the penalty attached by law to the offense. Amnesty, however, is granted to a class or group of persons, while pardon is given to individuals. Likewise, amnesty can only be granted by the President with the concurrence of a majority in Congress, while pardon is solely the act of the President. Lastly, amnesty is traditionally granted only to offenders of “political” crimes such as rebellion or sedition, while pardon can cover any type of offender

Pardon can be absolute or conditional. An absolute pardon operates to immediately and irrevocably relieve an offender from all the penalties which arise from conviction. A conditional pardon partakes of the nature of a contract, where the offender agrees to perform certain acts (get a steady job, refrain from committing other crimes) in return for being relieved from serving sentence. In our law, conditional pardons require the offender to accept the pardon, and its terms. Absolute pardons, however, immediately take effect even without acceptance.

“Forgiveness” is what, in essence, pardon is. It is an act of grace, or pure generosity, on the part of the President extended to a person who has been “convicted by final judgment.” In other words, it is an act of clemency extended by the Executive to one who has been conclusively adjudged as guilty by the courts.

Thus, any effort to pardon Erap, whether absolutely or conditionally, will have to wait until the full court process, appeals and all, is exhausted.

Willful Blindness

Two controversial inquiries currently being conducted by the Senate – the revived “Hello Garci” hearings starring a newly loquacious T/Sgt. Vidal Doble, and the ZTE/NBN investigation showcasing a finger-pointing (literally) Joey De Venecia – have once again thrown into the legal limelight the issue of executive privilege as against the power of Congress to conduct inquiries “in aid of legislation.” The issue first cropped up two years ago when GMA issued Executive Order No. 464, a directive criticized by many as a virtual “gag order” on administration officials.

EO 464 subsequently became the subject of a Supreme Court decision (Senate of the Philippines v. Ermita) which attempted to delineate the boundary between the powers of Congress and the prerogatives of the Chief Executive. While the decision, when actually read, seems clear enough, its impact has been greatly weakened by conflicting claims and interpretations from the two contending camps – the Senate and the Office of the President.

What does the decision actually prescribe, and how does it bear on current efforts by the Senate to extract testimony?

To begin with, the Court in Ermita clearly underscored that, as a rule, Congressional inquiries in aid of legislation must be given the broadest possible leeway. This is to ensure that Congress is always given the opportunity to equip itself with information necessary for passing legislation. Furthermore, Congress, in its representative capacity, acts as an instrument by which the general public can assert its right to information on matters of public concern.

That said, the Court likewise stated that as an exception to this rule, the claim of “executive privilege” can be raised. Executive privilege allows the President to withhold information from the public, the courts, and Congress where such non-disclosure “is necessary to the discharge of highly important executive responsibilities.” This covers information of a sensitive or highly confidential nature, such as military or diplomatic secrets, whose revelation could harm the State.

However, the Court emphasized that executive privilege is an exception that must be strictly construed. It can only be validly asserted directly by the President and only upon an explanation as to why the disclosure of the specific information would cause damage to the public interest. Therefore, unsupported claims of “executive privilege” cannot be used to justify outright refusal to appear or participate in a Congressional inquiry.

In this light, it is strange why administration officials still insist on avoiding Senate inquiries upon the bare claim that “it would violate EO 464.” First of all, no official other than the President, or the Executive Secretary acting under her explicit direction, can make the assertion. Secondly, the claim must be made with respect to specific information. Thirdly, an explanation on the danger of disclosure must accompany the claim.

A careful reading of Ermita makes it clear that these persistent refusals are anchored more on the intention to thwart, rather than uphold, public interest. But then, of course, there are none so blind as those who will not see.

The Power of Trust

The Sandiganbayan decision convicting deposed President Joseph “Erap” Estrada on two counts of plunder has been met with a storm of public reaction since it was announced last Wednesday. Oddly enough, despite the being a matter ostensibly based on technical, legal considerations (i.e. whether the evidence presented was sufficient to convict Erap “beyond reasonable doubt”), reactions to the decision, be it praise or condemnation, tended to rely more on extralegal concerns such as “public interest” or “political pressure.”

To a large extent, public reaction has focused more on the implications, the decision-making process, and the motives of the court and the government, rather than the technical legal merits of the decision itself.

This fact gives us an insight on the relationship between courts and the public at large. Courts, in carrying out their task of interpreting the law and applying it to resolve specific cases and disputes, go through the rather technical process of evaluating evidence, weighing precedent, and rendering a judgment anchored on its appreciation of formal, established legal rules. Most members of the public will be unable to fully understand this arcane process, either because of lack of familiarity with the rules, or more simply, because they did not have the opportunity the court had to observe witnesses, read the documents, and sift firsthand through the evidence.

Nonetheless, despite this lack of understanding, we expect court judgments, as a rule, to remain unquestioned and, in fact, to be wholeheartedly accepted by the general public. For this we rely on one of the most important features of our judicial system – firm public trust in the courts.

Trust leads the public at large to accept court judgments even if they are not personally and specifically aware of their legal soundness. In other words, institutional trust in the courts dispenses with the need to convince each individual citizen of the merit of a decision by explaining at length how it was arrived at. In fact, the overwhelming majority has probably never even read an actual decision, and yet the validity of court judgments is, on the whole, accepted.

Given this, it becomes apparent just how crucial and dispensable trust in the courts is to the sustainability of our justice system. In recognition of this, the Code of Judicial Conduct specifically mandates that “a judge should avoid impropriety and the appearance of impropriety at all times,” so as to avoid the slightest doubt to cloud public trust in the courts.

The reaction to the Erap verdict, in particular the howls of outrage over alleged “political considerations” in crafting the decision, tend to indicate that, at least in this case, public trust in the Sandiganbayan is not as firm as it could be. And obviously, this does not speak well for the health of our judicial system.