KISSACK, YOU ARE GONE. LONG YOU WILL LIVE.

Last night, we paid tribute to a fine young man who has gone to the West: Atty. Kissack Batong Gabaen. He was known for his staunch defense of human rights especially of indigenous peoples. People came from as far as Palawan to express admiration for this great man. Yes, he had personal flaws, but no one can question his track record as an activist and his dedication to stand up for the marginalized and oppressed and to fight for justice.

In his lifetime, I was blessed to have him as a brother, friend, and comrade all rolled into one. We handled human rights cases together. We participated in the human rights education of communities together. He counted me as one of his mentors. During our two last speaking engagements as a team, one in the Benguet State University and another before a community in Ifugao, he publicly acknowledged me as his mentor. On both occasions, I thanked him for the honorable attribution which I found humbling. But actually, I am now his mentee. His life of service to the people is worth drawing inspiration from.

The last time we saw him conscious was on June 28. I told him jokingly, "Kissack, NUPL-National has a meeting today and I committed to be there (This was true.). But today, something was telling me this might be my last time to see you like this so I chose to be with you and asked Edre Olalia to excuse me." (As an aside, I also sent a message to Grace Saguinsin explaining my non-attendance. I told Grace my inner fear: That Kissack might give up the ghost). He laughed and said, "Aye, I will outlive you."

The next time I saw him on June 30, he was comatose in the ICU. I told him, "Wake up. Today, the man you vigorously campaigned for took his oath as President. Change is coming. Let us help Duterte. Wake up and pay your dues to your children. Watch them grow up. Wake up. There is still a lot we need to do." His partner, Shen, exclaimed weeping, "Look, his tears are rolling." I really hope he heard me.

I am physically alive. Kissack is now a cold, hard body which will be cremated at 9:30 AM tomorrow. But he is a memory, too. He is a beautiful, powerful memory that will indeed outlive me. The things we do for the weak and oppressed in the name of justice, the things we do for humanity will stay in the memory of the present and the future---bigger than us, more than us. They will inspire people, they will inspire movements. Today. Tomorrow. They will change the world.

Today, we say our final goodbyes to him.

Au revoir, Atty. Kissack Gabaen, President, National Union of Peoples Lawyers-Baguio. Long shall you live.

VICE-PRESIDENTIAL IMMUNITY FROM SUIT: A MYTH MOTHERED BY JUSTICE SECRETARY DE LIMA

by: CHERYL L. DAYTEC

Justice Secretary Leila de Lima reportedly issued a statement that the Vice President of the Republic of the Philippines enjoys immunity from suit during his incumbency  as the President does. She declared that the immunity applies to all impeachable officials.

The 'short' of my 'long' comment: De Lima is wrong that the Vice President  is immune from suit. If the President is not immune from suit, why should he be? Assuming the President is immune, the traditional reason for it -that he may be unimpeded in the exercise of presidential powers-- does not apply to the Vice President who has not one power under the Constitution.

Why should  the  Vice President be immune from suit when, in fact, the 1987 Constitution does not even state that the President who is higher than him, is?There has to be a reason why presidential immunity textually expressed in the 1973 Constitution was dropped from the 1987 Constitution which however retained the provision on non-suability of the State enshrined in the previous Constitution. Presidential immunity  was a legal creation of Pres. Ferdinand Marcos. When his regime repudiated the 1935 Constitution in place of a new Constitution, he ensured that there would be a provision granting himself immunity from suit. Thus, Art. VII, Section 7 of the 1973 Constitution provided:  "The President shall be immune from suit during his tenure. Thereafter, no suit or whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure."

Presidential immunity  positioned Marcos above the law.In a functioning democracy, no one is above the law. No one is above the law, not even the President, especially not the President who, under a presidential system like that of the Philippine Government, must ensure the faithful implementation of the laws.

The Marcos regime, to this very day, is internationally known for having been a government of men and women and not of laws. Rule of law was repudiated in the name of an oppressive dictatorship. There is no need to be apocryphal about the consequences of presidential immunity from suit.

In 1986, Marcos was ousted during the so-called People Power Revolution. Having learned its lessons, the Filipino people newly emergent from the cocoon of tyranny, sought to dismantle legal structures that desecrated the rule of law and put a few self-proclaimed leviathans above it. One way of realizing this was by hurling presidential immunity  into the dustbins of history.

Thus, in the 1987 Constitution, there is already a very conspicuous absence of any provision to the effect that the President is immune from suit. It was the intent of the Filipino people, regardless of the intent of the constitutional drafters, to make the President of the Philippines accountable before the law. Accountability is a constitutional watchword under Section 1 of Article XI and is inherent in a functioning democracy. After all, the President is the chief implementor of laws. This becomes meaningless when, while he hoists the trident to enforce laws, he may not be made accountable while he sits when he violates them.

It is worth noting that the few decisions of the Philippine Supreme Court recognizing presidential immunity  under the 1987 Constitution  are friable. Its very tenacity  was discussed  in the case of  Soliven, et. al.v. Judge Makasiar, where the Court stated that  "(t)he rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being a Chief Executive of the Government is a job that, aside from requiring all of the office-holder’s time, also demands undivided attention." Yet, Soliven disproved its own point. In this case, then President Corazon Aquino  sued journalist Louie Beltran for libel occasioned by the latter's report that she hid under the bed at the height of a coup d’ etat against her administration. This suggestion of being a lameduck President so enraged Ms Aquino that she dragged her accuser to court. She was not denied access to the courts. And why should she? She was also a citizen subject to the same rights and obligations as the next citizen. At any rate, the point here is that under the doctrine of necessary implications, if the President can institute complaints under the spirit of the Constitution, s/he may also be made to respond to complaints. And if s/he can sue while President, then his/her attention gets divided. Soliven thus allows the President's attention to be divided, which immunity seeks to prevent.

David v Arroyo's pronouncement on presidential immunity was merely an obiter dictum (or a "by the way" comment, for those who are not familiar with legal gobbledygook) but it would be cited later in Lozada v. Arroyo. Regardless of this, the Supreme Court in Davide  relied on the judgment of the US Supreme Court in Mississippi v. Johnson. This case was decided in the 1866 when the United States of America was engaged in a civil war which required that the President should not be distracted. To invoke this decision as a precedent is absurd considering that the exigencies obtaining in the United States at the time Mississippi was promulgated are not obtaining, even remotely, in the Philippines at present.

Philippine jurisprudence on presidential immunity is not supported by the Constitution. At the risk of belaboring the point, the textual or literal expression of presidential immunity present in the 1973 Constitution was dropped by the 1987 Constitution, which must be interpreted as abandonment by the people of a provision that could entrench tyranny.

Moreover, the principle of rule of law and the basic tenet that democracy is a government of laws and not of people pervade our Constitution in spirit and must be considered written there. It is also remarkable that the United States on whose Constitution was based the Constitution of the Philippines, abandoned absolute presidential immunity from suit as a doctrine. In US v Nixon, the Supreme Court of the United States (SCOTUS) rejected President Richard Nixon’s  claim of immunity from judicial processes because of executive privilege.

In Nixon v. Fitzgerald, a divided SCOTUS  ruled that an absolute presidential immunity for official acts was existing for reasons of public policy. The absence of such immunity "could distract a President from his public duties, to the detriment not only of the President and his office but also the Nation that the Presidency was designed to serve." The immunity according to the doctrine in Nixon applies only to official acts, but not to crimes and other unofficial acts. In Clinton v Jones, the SCOTUS said that a sitting President is not immune from suit for acts committed before election.

 
During his tenure, President George Bush was similarly haled to court. Among cases against him were Boumediene v. Bush, and Rasul v. Bush, both of which involved presidential acts, not private acts. That Nixon, Clinton, and Bush as sitting Presidents were sued and the SCOTUS did not dismiss the cases against them on grounds of immunity as our courts do when the President is in the same boat is a recognition that the US President is not, or is no longer, immune from suit as a rule. 

These are already telling indicia that the SCOTUS  has been departing from the undemocratic notion that the President is immune from suits, parallel to legal developments in other democracies in the world which have since rejected claims of presidential immunity from suit or immunity for heads of governments including presidents and prime ministers.

In the international community, what is currently recognized is immunity of heads of government for purely sovereign acts abandoning an antiquated legal relic that  sovereigns could not be fallible. Discarding presidential immunity merely affirms a basic tenet of democracy: that in democracies, there are no leviathans other than the sovereign people.

Geographically closer to the Philippines is Thailand. Last year, its Constitutional Court purged Thai Prime Minister Yingluck Shinawatra from office for abuse of power committed when she illegally transferred a civil service servant to another office more than three years ago. Along with the Prime Minister, other members of the cabinet who were in office at the time the transfer was effected were likewise ordered to step down.

For many of the reasons I cited, the National Union of Peoples' Lawyers disagrees that the President is immune from suit. We always implead the President in cases where acts of the Executive Branch are assailed.

Now, even granting that the President is immune from suit, the underpinning reason for the immunity does not obtain in the case of the Vice-President: the President should not be distracted from the exercise of presidential powers.Indeed, the President has many powers under the Constitution. But how many powers does the Vice President have under the Constitution? None at all. S/he is a spare tire for the presidency and that is not a power.When appointed to a Cabinet position, s/he exercises powers as an alter ego of the President but not as VP.

Thus, Justice Secretary De Lima's legal opinion that the  Vice President is immune from suit is so, so flawed. 

NUPL ON THE APPOINTMENT OF THE NEW CHIEF JUSTICE

NUPL STATEMENT:

CJ Sereno Should Move the People to Seek Succor From the Court

A day after Justice Ma. Lourdes Sereno took her oath of office as the new Chief Justice of the Supreme Court, human rights lawyers and law students from the National Union of Peoples’ Lawyers (NUPL) reiterate the challenge for her to be independent, impartial and pro-people. 

The challenge is doubly pounded on CJ Sereno.  Also perceived as a favoured presidential appointee, it is not unexpected for some quarters to cast doubt and to question her judicious resolve to institute the reforms she promised to protect and promote the Constitution and the so-called rule of law, and put life and meaning to the basic principles of check and balances and the separation of powers.

The new Chief Justice should have and maintain the people’s trust. She has to face up to the immense challenge to be truly independent and impartial and prove that she is really her own woman. 

Being the one of the youngest and the first woman to be appointed to the highest position in the country’s judicial branch, CJ Sereno’s catapulted ascendancy to the post is both highly significant and historical.  She should seize this moment and her quite long term of office to concretely bring genuine reforms to the judiciary. These reforms must indispensably include those which will benefit the ordinary folk who have less in life.

We as officers of the court shall hail the new Chief as befits her stature and position but we shall temper our expectations and let her decisions and actions speak for themselves. 

We hope CJ Sereno will have the vision and use her position and inimitable chance to move the people to seek succor from a Court that should give them a fair shake and that will put the mighty and the powerful in place. 

Else, it would be an unspeakable tragedy of its own if she squanders this defining moment.  She must be conscious that the people and history would judge her accordingly in this light.  ###

Reference: Atty. Edre U. Olalia, NUPL Secretary General, 09175113373

FrEEDOM by Isagani Zarate

Kris-Crossing Mindanao

FrEEDOM

By: Isagani Zarate
Philippine Daily Inquirer

2:52 am | Monday, October 3rd, 2011

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Not even the foreshadowing ferocity of Typhoon “Pedring” concealed the immense delight of Maricon Montajes and six other political detainees inside the Batangas Provincial Jail, as they shared their stories to our group of lawyers and paralegals who visited them last Wednesday.

The 21-year-old Montajes, a native of Davao City, was a Film and Audio Visual Communication student at the University of the Philippines-Diliman when she was “illegally arrested” together with two other youths last June 3, 2010 by elements of the Philippine Air Force while on an exposure and integration trip with farmers in Taysan, Batangas.

Accustomed to the nurturing environment of a close-knit family back in Mindanao, the diminutive Montajes, also known as “Eedom” to friends, has since learned to lean on her fellow political detainees and share her joys and tears with them. “Sa kulungan, ang pagsuko ng malayang kaisipan ang pangunahing kalaban na dapat talunin (In prison, the temptation to surrender the freedom to think independently is the No. 1 enemy one must conquer),” she said.

The howling rain almost drowned her accounts of seemingly endless, rough interrogations and “torture” that she and her friends suffered after they were arrested; and, her lament over the slow resolution of the cases filed against them.

Eedom decried the government’s “criminalization” of their status, an irony that was not lost on her. As it was before, it is still so now. “We were falsely presented as NPA rebels, but we were charged with common crimes,” she bewailed. They are facing such charges as illegal possession of firearms and explosives, election gun ban violation, and frustrated homicide.

The charges shocked her childhood friends in Davao City, where she is known as someone “who would never do anyone or any living organism on earth any harm.” Consistently a student leader, Eedom spent her elementary and high school years at the city’s Stella Maris Academy, where she was a “grand slam class president from elementary to high school, became vice president of the Student Coordinating Council and president of the Social Studies Club until she graduated with academic honors in 2007.”

“Young as she was, she already manifested a strong sense of justice and unwavering leadership among her peers, the embodiment of a Marisian leader possessing the kind of faith in God’s people,” said the academic community of Stella Maris in a statement calling for her and her companions’ release. “Maricon’s passion for what is good and just is clearly expressed in her art, in her dances, music and poetry, where she knows no bounds but freedom in relaying the kind of social consciousness expected of a true Marisian.”

Earlier that day, in a meeting, our delegation from the National Union of Peoples’ Lawyers (NUPL) brought the cases of Montajes and her companions to the attention of Justice Secretary Leila de Lima.

Records of the rights watchdog Karapatan show that out of the country’s 360 political prisoners as of August 2011, at least 303 (84.17 percent) have been charged with common crimes. Only 15 (4.17 percent) have been charged with rebellion. Twenty others have been charged with common crimes in addition to rebellion and two are charged with “terrorism.”

“This phenomenon continues despite the fact that even the testimonial and documentary bases—spurious or otherwise—submitted to the prosecutors show that the alleged acts are obviously in furtherance of one’s political beliefs,” stated an NUPL aide mémoire submitted to De Lima during the meeting.

We also presented to De Lima the rampant and improvident use by prosecutors of the “John Doe” information in court, in violation of the justice department’s Circular No. 50, which mandates, among other things, that other appropriate descriptions of a particular “John Doe” must be elicited from supposed witnesses, to distinguish him or set him apart from the others.

The October 1999 department circular also directed public prosecutors “to place a new name in the Information in lieu of a John Doe only when the description of this John Doe as appearing in the sworn statement of a witness substantially tallies with the description of the person in John Doe’s stead.” Yet, despite these clear directives, public interests lawyers are still “confronted with this frustrating and unjust practice and the same continues to be violated and not strictly complied with.”

“There is from our experience on the ground, a continuing trend to indiscriminately file charges and secure warrants of arrests against our clients who are invariably leaders, members of legal mass organizations, NGO workers, party-list groups and even human rights advocates by means of ‘John Doe’ cases, which are intended to silence or neutralize them and deter others from joining their causes,” the NUPL noted.

We hope changes are forthcoming. De Lima said she “agreed” with the NUPL’s “legal posturing” and committed to immediately form a committee to draft guidelines relating to the criminalization of political offenses and the use of John Doe charges. “It is just a question then of how to operationalize (these guidelines) and make our public prosecutors understand,” De Lima said.

Indeed, it is the height of irony that Eedom and other political offenders continue to languish in various jails, while those who sponsored and promoted the culture of impunity in our country remain scot-free in this supposed era of “matuwid na daan”—shamelessly enjoying their plundered riches and flaunting their residual power and influence.

But, as political detainee and teacher Charity Dino noted during the meeting: “Mga katawan lang talaga namin ang puwedeng ikulong ng mga rehas na bakal (It’s only our bodies that they put behind a jail’s iron bars).”

Free Eedom. Free them all.