Concurring and dissenting

MANILA, Philippines–I THINK THE SUPREME COURT ACTED prudently in requiring the government to comment on the petition of the 11 broadcast journalists, led by Ces Orena Drilon, who challenged their arrest and detention as an aftermath of the Peninsula Manila Hotel siege. That the Court did not issue a writ of amparo (but merely required a comment) indicates that the correct legal remedy is a petition for prohibition, not amparo. I agree.

Overlook procedural lapses. When great constitutional issues are raised, the high tribunal historically tends to overlook procedural technicalities and looks at the substance of the controversy. Dismissing the Drilon petition on procedural grounds would have merely delayed the case. After having read the petition in full, I am convinced that it has sufficient allegations to be deemed a petition for prohibition.

Tackling the case on its merits augurs well for our democracy. Even the respondent officials, notably Interior Secretary Ronaldo Puno and PNP Director General Avelino Razon, have publicly welcomed judicial guidance on the paramount issues raised; namely, the legality of the arrest and detention of the petitioners; and, the validity of the media advisory issued by the Department of Justice, warning that journalists might incur criminal liability if they disobeyed orders from police authorities during “emergencies.”

Terror courts. I also concur with the Supreme Court’s refusal to name special courts to try controversies related to terrorism, particularly those involving violations of the Human Security Act (HSA). The Court found “no reason yet to create these special courts because the regular courts can still handle terrorism cases.”

Be that as it may, I believe there is a more basic justification for the denial. There are pending petitions to declare the HSA unconstitutional. The Court’s creation of these courts at this time could be interpreted, rightly or wrongly, as a signal that the HSA is valid in every respect, thereby necessitating the creation of these special tribunals.

Imprudent ground. With due respect, however, I disagree with the Supreme Court (acting as the Presidential Electoral Tribunal or PET) resolution junking the election protest of Sen. Loren Legarda “for lack of legal and factual basis.” If I were still sitting in the Court, I would have joined Justice Antonio T. Carpio in dismissing the protest on the sole ground of “abandonment.” By taking her oath as senator, Legarda “effectively abandoned” her complaint against Vice President Noli de Castro.

The Carpio opinion finds basis in an earlier PET decision dismissing, on the same ground of abandonment, the protest of Miriam Defensor-Santiago questioning the election of President Fidel V. Ramos in 1992. After Santiago took her oath as senator following her election to that office in 1995, the PET held that even if she won her protest, she could not have assumed the presidential office since she already opted to become a senator of the Republic. In short, she could not be both President (or Vice President) and senator simultaneously.

By ruling that the “Congress-retrieved” copies of the election returns (ERs) used in the proclamation of Vice President De Castro were “authentic” simply because of the “presumption of regularity in the performance of official duty,” the PET ignored the stark fact that these ERs were markedly different from the six other ER duplicates held by other electoral agencies, like the Commission on Elections. Unless the discrepancies are satisfactorily explained, the presumption of regularity, I respectfully submit, will not find application.

Furthermore, this ruling may have unduly preempted Legarda from suing the perpetrators of the allegedly forged ERs. This suit is essential in ridding our electoral system of fraud. Finally, I believe that the Court should have refrained from “talking too much” and from ruling on matters that were controversial and unnecessary in the disposition of the case.

Had the PET dismissed the protest simply on the ground of abandonment, it could have avoided recriminations from Senator Legarda. Even more important, the resolution would have been freed of any partisan overtones, and the PET of suspicions of political partiality.

Malolos Constitution. The Bulacan State University and the Bulacan Province are commemorating the 109th anniversary of the promulgation of the Malolos Constitution by sponsoring a special lecture series on the history, ideology and salient provisions of this Filipino-created fundamental law.

The unique lectures are being conducted daily (from Jan. 25 to Jan. 30) in the national language. Top caliber lecturers include Chief Justice Reynato S. Puno, Supreme Court Justices Angelina Sandoval-Gutierrez, Minita V. Chico-Nazario and Ruben T. Reyes, as well as former Senate President Jovito R. Salonga and retired Court of Appeals Justice Jose C. de la Rama. I have been invited to speak on the doctrine of “Separation of Church and State” on Jan. 29 at 9 a.m.

OFW travails. OFWs from all over the world continue to pour in their gripes. Because of the sheer volume of e-mail she is receiving, Dr. Carmelita Cochingco Ballesteros, Ph.D., who agreed to collate and analyze these travails and suggestions for submission to President Macapagal-Arroyo, has created a special e-mail address devoted solely to OFW matters. Henceforth, please use this account ( in writing her, with copy to me.

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