NOT IN MY NAME!

Gloria's PP 1017 (now lifted) and "warrantless arrests" (now claimed to persist) remind me of the Senate, the fall guy named Norberto B. Gonzalez—and U.S. Senator Joseph McCarthy in the 1950s.

EXECUTIVE POWER OF CONTROL, OF COMMAND THE SOVEREIGN DELEGATES
Cabinet Secretary Norberto B. Gonzalez is an Executive Officer over whom the President "shall have control of," or the "Executive Power of Control" (Sec. 17, Art. VII). It is a Power akin to the "Power of Command" as "Commander-in-Chief" (Sec. 18, Art. VII).

The verb "control," which means "to have the power of commanding; the power of restraining," is synonymous with the verb "command"--"to have authority or control over, to have at one's disposal." Thus, Secs. 17 and 18, both of which fall under "The Executive Power" in Article VII, authorize the President, as defined, to "order," "direct" or "restrain" acts, among others, of officers in all "executive departments, bureaus, and offices" and members of "all armed forces."

Are these not the same awesome Executive Powers Gloria relied on to "legitimize" her issuance of EO 464?

Incidentally, the U.S. President does not possess the "Power of Control," claiming the exercise of "control" over executive officers to be merely part of a nebulous (and often controversial) "Executive Privilege." This is a "privilege" claimed to be incident to the "separation of powers" the Sovereign dispersed among the three co-ordinate co-equals, the Legislative, the Executive, the Judiciary, wary always of "concentrated power," distrustful even of power itself (as in "lust for") delegated at any level.

Thus, the only way to prevent the continued issuance of executive orders, such as EO 464, is through a constitutional amendment to deny our President the power "of control" over Executive Officers.

In this regard, leaning on a merely implied "Executive Privilege"--and not the Executive Power of Control, of Command the Constitution expressly vests the Philippine President with--and citing U.S. Supreme Court decisions regarding "Executive Privilege" (a "privilege" claimed by a U.S. President who does not possess the Power of Control) to justify EO 464 is irrelevant, impertinent, to say the least.

PARLIAMENTARY QUESTION HOUR AND THE RIGHT OF PARLIAMENT TO INTERPELLATION
The other way to abort the issuance of Executive Orders like EO 464 is to embark on a radical shift to parliamentary wherein the cabinet is under the "control of" the Prime Minister, and the Prime Minister is, in turn, subject to removal at the pleasure of a majority of Parliament, with the entire Cabinet "required" (and not just "requested") to appear before and "answer questions" (and not just to be "heard") by members of Parliament during Question Hour interpellations, as in Sec. 12(1), Article VIII of the 1973 Constitution with a parliamentary form of government.

Note it well that the term "interpellation" in the 1973 Constitution, oddly enough, still appears in Sec. 22, Article VI of the 1987 Constitution (supposedly establishing a "presidential" form of government) although the "Question Hour" has been deleted, as follows:

"The heads of departments may ... upon the request of either House ... appear before and be heard by it ... Interpellations shall not be limited to written questions, but may cover matters related thereto ..."

What is notable is that the term "interpellation" is defined in Wikipedia as "a Right of Parliament," and to quote:

"The word Interpellation is also used to refer to the formal right of a parliament to submit formal questions to the government. In many parliaments, each individual member of parliament has the right to formally submit questions (possibly a limited amount during a certain period of time) to a member of government. The respective minister or secretary is then required to respond and to justify government policy. Interpellation thus allows the parliament to supervise the government's activity."

Owing to these contradictory provisions (the Executive Power of Control, of Command side by side with the "Right of Parliament" to "require" Cabinet members of the Executive "to respond and to justify government policy") engendered by the inexplicable retention of the uniquely parliamentary term "interpellation, the Congress in the 1987 Constitution may be regarded as "semi-" or "quasi-parlimentary" in function. (See a more detailed discussion of this oddity at NOTE 7 later here.)

AUTHORITY TO INQUIRE IN AID OF THE POWER TO LEGISLATE THE SOVEREIGN DELEGATES
Section 21, Art. VI provides that: "The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected."

Note that this provision is copied word-for-word from Sec. 12(2), Article VIII of the 1973 Constitution and did not appear in the 1935 Constitution.

If the Court views either House of Congress or its respective committess as having the authority to summon and compel the appearance of members of the Executive Cabinet during an inquiry "in aid of legislation," then, the 1987 Constitution may be regarded as "quasi-parliamentary," since the Executive is rendered inutile, impotent by the all-embracing extent of the Legislative Power which allows the Legislative to needlessly encroach upon the Executive, a branch deemed coordinate and co-equal under a Presidential form of government.

In fact, this is basically what distinguishes a Presidential from a Parliamentary form of government--the Parliamentary Cabinet is responsible directly to a majority of Parliament.

Fall guy Gonzalez, a Cabinet Secretary, was requested by the Senate to shed light on the Venable LLP public relations Agreement the Executive entered into with a US-based corporation. During the inquiry "in aid of legislation," Gonzalez "responded with evasiveness ... and did not answer any of the crucial questions," was cited for contempt and subjected by the Senate to an ordeal Sen. McCarthy would have loved to do himself--

--Ordered arrested, tried, convicted, and punished by the Senate, the institution authorized merely to inquire "in aid of legislation" (understood to mean to "investigate" to justify the authority to cite in contempt, but not to arrest and detain), but actually acting as the constitutional "investigator," the Ombudsman (an institution the U.S. Constitution does not provide, with the U.S. Congress traditionally assuming the investigative function, as with our Congress before the Ombudsman's creation, constitutionally in 1987, implemented by law in 1989) and, simultaneously, acting as the co-equal Judiciary, exercising in the process "concentrated power," the "Executive Power of Control" of another co-equal notwithstanding.

--Publicly maligned, insulted, humiliated and subjected to "pitiless publicity and exposure" (by itself, already a form of "punishment" inflicted) for seeking refuge under his "right to remain silent" during an "investigation" ("inquiry"?), in glaring violation of the caveat to Congress (embedded in the 1973 and the 1987, but not in the 1935, Constitutions) that "[t]he rights of persons appearing in or affected by such inquiries shall be respected," among which is the right against compulsory self-incrimination.

--Arrested "warrantless" by persons with a military-like designation (Sergeant-at-Arms), but without the authority to arrest and detain, and held hostage (Al Qaeda-style vigilante justice) "legitimized" by an "inquiry in aid of legislation."

--Being placed under "Protective Custody" or "on recognizance" of the Executive (as an Executive Officer and "alter ego" of) was NOT an option made available to him, although made readily available to members of the Legislative (the "Batasan 5") similarly situated.

--Condemned to indefinite detention (for well over a month, or over 720 hours) from 21 Sept to 26 Oct 2005, although temporarily relieved of the "effects of his detention" for "humanitarian considerations"; yet, because of his "mysterious intransigence," the inquiry "in aid of legislation" can be "re-opened if circumstances warrant," and his continued "detention" can be resumed, later (to last forever?).

--Sneered at for seeking medical attention for a serious, life-threatening ailment (diagnosed as hypertension) that incarceration without charges naturally magnifies, exacerbates.

--Accusation proved his guilt, and his denial or refusal doubled it, by subjecting him to the "coercive sanction of contempt" as punishment for his contumacious conduct (his denial, refusal), a mode of "testimonial compulsion," doubtless violative of the prohibition on the use of "threat, intimidation . . . which vitiates the free will" to extract "confession" or "admission."

--Deprived of his liberty without the benefit, the safeguards of "due process of law," section 1 of the Bill of Rights cries out to guarantee, unconditionally; such that, the concession of recourse to the "Writ of Habeas Corpus" later (but often too late) may not be enough to assuage the agony from mortal wounds, impaled earlier by the injustice, the inhumanity of the deprivation ("human rights" violation?).

--Punished before he is guilty for fear that he should be guilty, evidenced by a mere legislative pronouncement of guilt (or "Trial by Legislature"), bereft of even a rudimentary hearing before an impartial tribunal competent to determine the question of guilt.

--Willingly accepted the "coercive sanction of contempt" punishment the Senate meted out to him, (without the usual theatrics and showmanship outbursts), ennobled perhaps by the thought that his mistreatment was the price one pays for having pleaded the valued privilege against self-incrimination or "testimonial compulsion"--"a protection of the innocent though a shelter for the guilty."

--Has not been charged nor convicted in Court for the punishment of an offense he has already served and may continue serving (possibly for life), if he remains tight-lipped, opting not to divulge anything self-incriminatory or disclose those received "in confidence" (as part of the official duties of a subordinate), in order to be worthy of the trust of, and obedient to orders emanating from, a superior.

Thus, the Executive Power of Control, of Command squares off with the Authority to Inquire in Aid of the Power to Legislate, a classic case of two separate, co-equal powers demanding recognition, and hence requiring obviously the third separate co-equal Power, the Judiciary, to intervene and resolve.

RIGHTS THE SOVEREIGN RETAINED
But these are Powers invoked that the Sovereign merely delegated to agencies of government it created. So, what of the RIGHTS the Sovereign retains and, under Sec. 21, Art. VI, expressly commands that: "The rights of persons appearing in or affected by such [legislative] inquries shall be respected"?

What is disturbing to me (and to other voiceless promdi "nit-pickers" out there) is: Why Gonzales, a Filipino citizen entitled (presumably) to the protection of the Republic, "innocent until ..." can just as easily be maltreated (the SPCA would have howled in protest if Gonzalez were a dog).

Yet, no one cared; it was as if it's OK to manhandle--if you're the "enemy," if you're the "friend" of "my enemy," if you're Gloria's "associate"; or what was it all about Sen. McCarthy--"Guilt by Association"?

BAN ON ATTAINDER
The abuses the Senate perpetrated are dangerously close to the dreaded Bill of Attainder, generally defined as "[a] legislative act that singles out an individual or group for punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties within the meaning of the Constitution."

For his part, Sen. McCarthy (joined by Rep. Martin Dies) claimed that a resolution by his HUAC sub-committee--or, in the case of fall guy Norberto B. Gonzalez, an act by just one House of Congress alone--that "singles out an individual" for "punishment without a judicial trial" by detention (or, in McCarthy's case, by "pitiless publicity and exposure" of suspected communists) is not a "bill"; neither would it qualify as a "legislative act." (See Irving Brant, The Bill of Rights: Its Origin and Meaning, Chap. 37 "Attainder by Congressional Committees," 1967.)

But the question by inescapable logic, looms: If Congress, both Houses jointly, is forbidden to pass a Bill of Attainder; can either House of Congress or a committee conducting an inquiry "in aid of legislation" or, for that matter, any legislative process, do what the whole Congress is forbidden to do? Can the Executive?

If "warrantless arrests," "arbiratry detentions" and "punishment without trial" are to be abhorred, the Court should address this anomaly at the next opportunity and revisit stare decisis (Arnault?), since the 1987 Constitution (and the 1973, but not in the 1935) already adds the command that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."

The evil the prohibition seeks to avoid is clearly the deadly "attainder" a hapless victim is brutalized with--and not in the form or manner by which the injustice is handed down "officially" by whosoever, the Legislative or the Executive. The prohibition was meant to be a "positive denial" of any power to government on the subject of "attainder." For "a power expressly denied to the whole government, a single branch may not assume."

To the distraught victims, "punishment without a judicial trial" is the thorns of "terror" unleashed by whatever "rose" it is named, be it by way of a "bill" or by whatever the means concocted, or by the "legal" alibi foisted, as by declaring a "State of National Emergency," no different from the "New Society." Ask the few remaining survivors of the countless victims "attainted" under Martial Rule by an "ASSO" justified by an Executive, surreptitiously wielding Legislative Power usurped under Amendment No. 6 (1976) of the 1973 Constitution (still perfectly "legitimate," not to mention "legal and constitutional," right?).

Like what it was then, if one House of Congress can escape a constitutional ban by the mere expediency of straining taut the authority to inquire "in aid of legislation" to rise above the prohibition on "attainder" (as defined by sorrowful relatives of victims dying, not by legalists debating); there is no limit to what one House of Congress, or both Houses jointly, can do under that assumed authority--an "ex post facto" next? the "spin" editor of a muckraking tabloid later? a jueteng whistleblower?

LEGISLATIVE PRIVILEGE TO PUNISH
The Legislative possesses certain privileges "necessary and proper" for its preservation or existence, one of which is to "punish" ("suspend or expel") its own members for "disorderly conduct" under previously approved "rules of its proceedings"--although "punishment" is solely a judicial function.

That privilege to "punish" obviously extends to protection from "disorderly conduct" of nonmembers. The protection Congress invokes should be afforded by the passage of laws for proceeding against nonmember offenders, laws honoring the Sanctity of the Person, laws protecting rights the people as Sovereign retain.

The legislative, of course, deserves a certain degree of trust and respect. But that trust, that respect to be accorded must be earned; it cannot be extracted or coerced by a blatant "misrule of law"--by threats of a contempt citation or "punishment without trial"--from the very institution the Sovereign delegates the Power to Make Law.

RIGHT TO INFORMATION IN MATTERS OF PUBLIC CONCERN THE SOVEREIGN RETAINED
As regards the refusal of Gonzalez, a Cabinet Member, to furnish information concerning the Venable LLC Agreement, the right "to obtain information in matters of public concern" and to have "access to official records" (Sec. 7, Art. III), together with the State policy "of full public disclosure of all its transactions involving public interest" (Sec. 28, Art. II) are intended, no doubt, to benefit the common good.

But that "right," that "State policy," already "subject to such limitations as many be provided by law," may not be stretched into what would amount to a general authority to allow the invasion with impunity of the "other" rights individuals possess--retain jealously as Sovereign. Mind you, a State Policy (Sec. 11, Art. II) also proclaims that: "The State values the dignity of every human person and guarantees full respect for human rights"--friend or foe.

FREEDOM OF SPEECH, OF EXPRESSION, OF THE PRESS THE SOVEREIGN RETAINED
The assault on media by Gloria's PP 1017 enforcers should not be taken lightly. The view I hold strongly is that media should not just demand "no prior restraint"; it should insist instead on what the Constitution commands, absolutely, in no uncertain terms--"NO LAW SHALL BE PASSED ... " (Sec. 4, Art. III).

For in the words of James Madison in the Virginia Resolutions of 1798: "[T]he censorial power is in the people over the government, and not in the government over the people," the judicial concept of "calculated falsehood" and "actual malice" notwithstanding.

Elaborating on Madison's words, Dr. Alexander Meiklejohn (the U.S. Medal of Freedom Awardee, "the nation's highest honor," in 1963) wrote about what he calls "an activity of 'governing importance' within the powers reserved to the people and made invulnerable to sanctions by their agency-governments"--"the central meaning of the First Amendment"--by these illustrations:

"The principle here at stake can be seen in our libel laws. In cases of private defamation, one individual does damage to another by tongue or pen; the person so injured in reputation or property may sue for damages. But, in that case, the First Amendment gives no protection to the person sued. His verbal attack has no relation to the business of governing."

Meiklejohn adds: "If, however, that same verbal attack is made in order to show unfitness of a candidate for governmental office, the act is properly regarded as a citizen's participation in government. It is, therefore, protected by the First Amendment. And the same principle holds good if a citizen attacks, by words of disapproval and condemnation, the policies of government, or even the structure of the Constitution. These are 'public' issues concerning which, under our form of government, he has authority, and is assumed to have competence, to judge. Though private libel is subject to legislative control, political or seditious libel is not."

To buttress his point, Meiklejohn adverted to the analogy in the immunity members of Congress enjoy which provides (under Sec. 12, Art. VI of our 1987 Constitution) that: "No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof." He argued that: "Just as our agents must be free in their use of their delegated powers, so the people must be free in the exercise of their reserved powers"--otherwise the immunity afforded to mere agents exercising powers the Sovereign delegates to government would enjoy an altogether unfair, even irreverent, advantage.

These "reserved powers," Meiklejohn speaks of, which "he labeled powers of 'governing importance' are concerned, not with a private right, but with a public power, a governmental responsibility. Freedom of expression in areas of public affairs is an absolute. 'Public discussion of public issues,' he said, 'together with the spreading of information and opinion bearing on those issues must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power."

Meiklejohn explained that the people "are, it is true, 'the governed.' But they are also 'the governors.' Political freedom is not the absence of government. It is self-government ... The people do not delegate all their sovereign powers ... [the Constitution] speaks of a reserved power which the people have decided to exercise by their own activity ... [and that is] the voting power through which the people, as an electorate, actively participate in governing both themselves, as subjects of the laws, and their agencies, as the makers, administrators, and interpreters of the laws."

"The revolutionary intent of the First Amendment," Meiklejohn concludes, "is, then, to deny to all subordinate agencies authority to abridge the freedom of the electoral power of the people."

Meiklejon goes on to clarify the extent of this "Power": "It is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors ... In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant." Indeed, for how can the exercise of a mere delegated Sovereign power supersede the supremacy of the reserved power the Sovereign wields directly?

Acting as "the governor," the citizen in a republic is "the most important public official" and to be critical of "public servants" in government is a citizen's "public duty" in a democracy, Thus, the "right" to vote, the "right" to speak for or against the government, the "right" to peaceably assemble are some of the retained "rights" the Sovereign exercises individually or collectively under a reserved "Governing Power," the Electoral Power.

The Bill of Rights is, therefore, intended, not only to restrict and delimit the Powers the Sovereign delegated to government it created; but also, more importantly, to proclaim "Rights" the Sovereign retained, the "Governing Powers" the Sovereign reserved.

These quotations from Meiklejohn's "The First Amendment is Absolute" (1961) is cited in William J. Brennan, Jr., "The Supreme Court and the Meiklejohn Interpretation of the First Amendment," Harvard Law Review (November 1965). Justice Brennan (later Chief Justice) penned the "landmark" free speech decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

The concurring opinions in that case echo Madison's and Meiklejohn's thesis: "An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment" (Justice Black); "[t]he Constitution accords citizens and press an unconditional freedom to criticize official conduct" (Justice Douglas).

So, from Madison: "The censorial power is in the people over the government, and not in the government over the people"; from Meiklejohn: "Over our governing, they have no power. Over their governing we have sovereign power"; and that Power the Sovereign reserves to be exercised at its pleasure, immune from sanctions for criticism of official conduct, Meiklejohn calls--"THE ELECTORAL POWER."

In this light, Gloria's PP1017 enforcers should be warned to refrain from encroaching upon grounds sacrosanct to a Sovereign--The Electoral Power to choose or to remove, to establish or to dissolve government, to legitimize, to criticize.

RIGHT TO PEACEABLE ASSEMBLY THE SOVEREIGN RETAINED
Similarly distressing is Gloria's CPR (Calibrated Preemptive Respose). "The right of peaceable assembly is a right cognate to those of free speech and is equally fundamental," Justice William O. Douglas in "The Right of the People" (1962) quotes from a U.S. court decision. But the "traffic congestion [in walking and massing towards a peaceful gathering] is a legitimate concern of any city," he adds, and continues by saying that "[o]ne would not be justified in ignoring the familiar red traffic light ... to direct public attention to an announcement of his opinions."

In short, what of the nameless passengers in public transportation caught, unwillingly, in the middle of a monstrous gridlock? Unlike PU drivers, PU passengers, collectively, do not belong (as yet) to any militant group, NGO, or "Party-List." But unorganized they may be, these sacrificial lambs are citizens nonetheless. So, allow me to call them as belonging to a group named, say, "ANAK PASAHERO"--as in "ANAK PAWIS."

"Anak Pasahero" members also possess "rights" too (don't they?), like, for instance, the "right" to work to earn a living, without being penalized for arriving late at work. How about the "right" to education of those who wish to attend school--on time, or after work? I'm sure they have nothing bad to say against rally organizers; all they wish for is simply to be able to reach their respective destinations or appointments on time. Is this unquestionably legitimate desire (or right?) of fellow citizens to be PUNCTUAL too much to ask?

So, during the usual confrontation between rallyists and Gloria's CPR enforcers, who will represent the muted yet exasperated voices of "Anak Pasahero" whose members are mercilessly left to fend for themselves? Ignored for so long now, nobody seems to care for them at all. As citizens of the Republic, I suppose their anger, their frustrations are valid "grievances," entitled equally to be listened to and addressed.

If a "rights" compromise is to be agreed upon between rallyists seeking to "redress grievances" and Gloria's enforcers insisting on a "No Permit, No Rally" policy regarding, say, how to reroute traffic and avoid inconvenience to the public, that agreement should include, or take into consideration, the "rights," not only of the rallyists, but also of the silent, lamentably unrepresented "Anak Pasahero."

Fair enough, "Anak Pawis"? And reasonable still, if the requirement of having to secure a "permit" (actually, a "traffic" permit) is not to be employed by Gloria's PP 1017 enforcers as a pretext to deny or abridge the right the Sovereign retained to peaceable assembly--the same "right" the Filipino people invoked at EDSA in 1986 to wield their reserved Electoral Power to remove.

EXECUTIVE DUTY TO INFORM THE SOVEREIGN OF THE STATE OF THE NATION
Under Sec. 23, Art. VII, the President is obligated to "address the Congress at the opening of its regular session"--or to deliver the "State of the Nation Address" (SONA). So, that goes without saying that, at any time, if the President wants to address, not only Congress, but the entire Filipino people as well to inform them of the "State of the Nation," the President who wields the Executive Power is free to do so, duty-bound, in fact, in times of "lawless violence" or "rebellion."

For if the "State of the Nation"--as perceived by the President who is sworn to "ensure that the laws be faithfully executed"--be confronted with a "national emergency," why should legalists construe PP 1017, declaring the "State of the Nation" to be under a "National Emergency" unconstitutional? On the contrary, the proclamation should be viewed as a laudable performance or execution of a duty.

I think the controversy lies, not in the presidential authority to proclaim and to inform the Filipino people of the "State of the Nation," but in the "unlawful" implementation of orders issued under that proclamation. Newspaper reports, however, confirm that those who claim to having been arrested "warrantless" have at least been afforded the opportunity of "due process of law."

THE JUDICIARY--THE THIRD SEPARATE, CO-EQUAL POWER THE SOVEREIGN DELEGATED
Punishment, in ANY case, is too serious a matter to be entrusted to ANY group (particularly those who anoint themselves to be the "good" people and arrogate to themselves the prerogative to dictate who are to be the "bad" people to be tagged as the "enemies of the State") other than the judiciary.

And there is only ONE way, and no other, in which the "good" can dispose of the "bad," and that way is, by the Court after a trial conducted with all the judicial safeguards in place.

UNRESTRAINED BY THE RULE OF LAW
PP 1017 has been lifted--"officially," at least. Yet, an omnipotent Congress reigns supreme and continues to wield the assumed authority to order a "warrantless" arrest and the indefinite, arbitrary detention of Filipino citizens (even including foreign officials of a bank) under the guise of conducting an inquiry--"in aid of legislation."

Sadly, during the litany of horrors (or "terror") the Senate inflicted openly upon a "named" citizen of the Republic, the avowed champions of freedom and democracy, among many in the media and the opposition, simply looked the other way, eerily silent--Gonzalez was their perceived "enemy"--condoning instead the humiliation, the deprivation the fall guy Gonzalez endured.

Doubtless, it's not just the Executive, after all, that's "unrestrained by the rule of law," but the Legislative as well; so, why make a fuss over the "warrantless," the "arbitrary," the "dictatorial" repercussions under Gloria's PP 1017--only now?

SHOULD ADVOCACY OF A CAUSE BE SELECTIVE?

"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." --Thomas Paine

Justice Rutledge quoted Paine's line, dissenting in, In re Yamashita, 327 U.S. 1 (1946), to emphasize the Court's unwavering commitment to due process of law--the bedrock--that he viewed as having been compromised by the majority decision, and concluded forcefully:

"That door is dangerous to open. I will have no part in opening it. For once it is ajar, even for enemy belligerents, it can be pushed back wider, perhaps, ultimately for all."

To that, add this dying wish of St. Thomas More—King Henry VIII's "bosom friend" (later his "enemy") ordered beheaded by an "Act of Attainder" in 1535, canonized 1935:

"Yes, I'd give the Devil benefit of law, for my own safety's sake!"--"A Man of All Seasons"

Meanwhile, "Good Night, and Good Luck," McCarthyism lingers to haunt. It lurks clothed with that assumed congressional authority to "attaint" and, like the "sword of Damocles," hangs unsheathed ready to decapitate its next victim, the "enemies of the State," caricatured as the "bad," the "devil."

Yes, not just the Executive, either House of Congress can, a Congress the "Sovereign Will" enthroned to represent "We, the Filipino people." So, to the "public servants" the Sovereign delegated the Power to Legislate; go ahead, let the "Rule of Your Will" continue to prevail. Armed with the "legitimacy" of that assumed authority to "attaint"--"Thy Will Be Done" anyway.

But, please, I beg you--NOT IN MY NAME!

NOTE: ATTAINDER BY CONGERSSIONAL COMMITTES
I am quoting below the U.S. Supreme Court decision in WATKINS v. UNITED STATES, 354 U.S. 178 (1957) regarding "congressional attainder." (See also GROPPI v. LESLIE, 404 U.S. 496, 1972.)

"MR. CHIEF JUSTICE WARREN delivered the opinion of the Court ...

"Since World War II, the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House. The sanction there imposed is imprisonment by the House until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does [354 U.S. 178, 207] not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.

"The appropriate statute is found in 2 U.S.C. 192. It provides:[See also 193 and 194]

"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. 45 [354 U.S. 178, 208]"

"In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases ..."

GROPPI v. LESLIE (1972), reiterates the WATKINS view:

"Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherebt power to protect their own processes and existence by way of contempt proceedings. The Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts (52 Stat 942, 2 U.S.C. Secs 192-194)."

The U.S. law cited (52 Stat. 942) was enacted in 1857 yet. Brant (op. cit. at page 433) has this to say: "One of the greatest recommendations of this bill, said [Senator] Bayard, was that it transferred the power of punishment for contempt from Congress to a court of justice after judicial inquiry. 'I am aware,' said he, 'that legislative bodies have transcended their powers--that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of co-ordinate branches of government.' if our institutions were to last, there could be no greater safeguard than to transfer that indefinite power of punishment to the courts of justice."

In any case, the "coercive sanction of contempt proceedings at the bar of the House" mentioned above--now deemed "abandoned" by the U.S. Congress--is what Section 18 (on "Contempt") of the "Senate Rules of Procedure Governing Inquiries in Aid of Legislation" similarly provides, the same provision the Senate invoked to detain indefinitely, and "attaint," fall guy Gonzalez.

To thwart any attempt in the future to transform congressional inquiry "in aid of legislation" into "congressional attainder," our own Congress should be respectfully petitioned to adopt the solution offered above in 2 U.S.C. 192 (identical to Sec. 150 Revised Penal Code), and let the separate, co-equal Court try, decide and punish after a "judicial" inquiry has been concluded.

This way, "[t]he rights of persons appearing in or affected by such [legislative] inquiries" the Constitution commands Congress "to be respected" are upheld (particularly the privilege against self-incrimination), in the same way that the cherished rights of a group now labeled the "bad" people, "enemies of the State"--the "Batasan 5" accused of rebellion--be equally honored, protected.

I conclude this Note by freely quoting Brant's (op. cit.) enumeration, among others, of "concerted attacks that put the very foundation of government at peril":

"... when the wrong people ask the right remedies"
"... when lawyers who have the courage and sense of professional duty to act as counsel of Communists, though hating their doctrine and despising their conduct, are assailed as sympathizers with the system they condemn"
"... when the rights of citizens lawlessly attainted by congressional committes, invite not only scurrility of extremists" but unconcern, apathy of the majority.

Add, finally, to attacks that imperil government, this definition of "Communal Reinforcement" by skepdic.com in relation to GARCI:

"COMMUNAL REINFORCEMENT is the process by which a claim becomes a strong belief through repeated assertion by members of a community ... independent of whether the claim has been properly researched or supported by empirical data significant enough to warrant belief by reasonable people ... [o]ften the mass media contribute to the process by uncritically supporting the claims ... and provide tacit support for untested and unsupported claims by saying nothing skeptical about even the most outlandish claims ... explains how entire nations can pass on ineffable gibberish ... how testimonials reinforced by other testimonials within the community of ... theologians, politicials, talk show hosts, etc., can supplant and be more powerful than scientific studies or accurate gathering of data by disinterested parties."

Is this not how the GARCI TAPE persists to be welcome as "breaking news" everytime?

So, "reasonable people" kindly go to and search the following definitions in the same website for your "illumination":

--Selective thinking is the process whereby one selects out favorable evidence for remembrance and focus, while ignoring unfavorable evidence for a belief.

--Confirmation bias refers to a type of "selective thinking" whereby one tends to notice and to look for what confirms one's beliefs, and to ignore, not to look for, or undervalue the relevance of what contradicts one's belief.

--Wishful thinking is interpreting facts, reports, events, perceptions, etc., according to what one would like to be the case rather than according to the actual events.

--Incontrovertible evidence is evidence introduced to prove a fact which is so conclusive, that by no stretch of the imagination can there be any other truth as to that matter. Examples: a fingerprint ... a DNA test.

This is relevant to the GARCI controversy since every Certificate of Canvass bears the imprint of the right hand thumbmarks (aside from the signatures) of each the three members of the Board of Canvassers of each constituency.

Rather than listen to testimony (mostly hearsay) of partisan witnesses, Congress should have summoned these board members to authenticate the figures and words (or corrections, if any) in the certificates of canvass wherein their "incontrovertible" right hand thumbmarks appear.

ADDITIONAL NOTES:
01. IS PEOPLE POWER THE ELECTORAL POWER THE SOVEREIGN RESERVED, RETAINED?
To the question of whether the Electoral Power is the same Power the Filipino people wielded at EDSA in 1986, now renamed aptly People Power, the writings of John Locke (Of Civil Government, Chapt. XIV, Prerogative) offers a clue:

"They [the people] reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, by a law antecedent and paramount to all positive laws of men, whether they have just cause to appeal to heaven ..."

W.T. Jones (Masters of Political Thought, Vol. II, p. 200, 1964) elucidates:

"By this pious phrase, an "appeal to heaven," Locke does not mean the people passively to wait the operation of divine justice on their behalf. He means that, when no earthly judge exists before whom they can take their case (i.e. when no constitutional channels of change exist), they must put their trust in heaven and, believing in the rightness of their cause, appeal to arms."

The Locke-inspired American Declaration of Independence (1776) proclaims that the exercise of the "Electoral Power" is a "right," a "duty":

"... Governments are instituted among Men deriving their just powers by the consent of the governed--that whenever any form of Government becomes destructive of these ends [earlier enumerated], it is the Right of the People to alter or abolish it ... it is their Right, it is their Duty to throw off such government and to provide new Guards for their future security ..."

"People Power" is, therefore, an exercise of the supreme "Electoral Power" Meiklejohn coined from Madison's concept of "Censorial Power" and referred to as "an activity of governing importance, a power Locke viewed as "a law antecedent and paramount to all positive laws of men" or to constitutions, the Filipino people as Sovereign reserve to choose or remove those chosen, to create or dissolve government created, to promulgate or rewrite a Constitution ordained and provide new safeguards; it is a Power "which belongs to all mankind" the people jealously forever retain and do not delegate or relinquish to any government they establish.

In 1986, with "no constitutional channels of change" left open and "believing in the rightness of their cause," the Filipino people opted to wield the Electoral Power they reserved to Remove, to make their "appeal to heaven," but not an "appeal to arms" as Locke;s writings exhorted.

Rather, still placing "their trust in heaven" and in prayers to the Almighty, the Filipino people gathered for a "peaceable assembly" at EDSA and dutifully exercised their reserved ELECTORAL POWER to demand the immediate removal from office of Marcos, the dictator, and to bestow, by that Power invoked, "Sovereign Legitimacy" to Aquino's assumption to the Presidency as the winner in the 1986 presidential snap election held weeks earlier and her dissolution of the 1973 Constitution.

02. LEGISLATIVE POWER TO IMPEACH AND REMOVE THE SOVEREIGN DELEGATES
Kin to "attainder" (to legitimize beheadings and check Royal Prerogative), the Power to impeach, "try and decide" the "removal from office" of the Executive is an extraordinary authority the Sovereign (who reserves the Electoral Power to choose, to remove--aptly renamed "People Power"--Locke refers to as "a law antecedent and paramount to all positive laws of men," or to Constitutions) delegates to the Legislative for one specific purpose only--to shorten the tenure of the incumbent impeached by a "removal from office."

Nonetheless, the Sovereign still leaves to the Judiciary the "prosecution, trial, and punishment" of the officer impeached--or to the Court to decide the "CLOSURE" of acts politicians (not necessarily the law) define to be "impeachable." In fact, the non-voting Chief Justice presides to paint a "judicial" color to what Alexander Hamilton in the Federalist No. 65 (1787) refers to as a trial "which may with peculiar propriety be denominated POLITICAL" (all caps as in original).

A "well-constituted court for the trial of impeachment," Hamilton clarified, "is an object not more to be desired than difficult to be obtained in a government wholly elective." Often, he adds "The prosecution of them will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt."

And, "from that circumstance," Hamilton continues, "the most cunning or the most numerous faction" in an "elective" legislative "can hardly be expected to possess the requisite neutrality towards those whose conduct may be subject of scrutiny."

Well, that's how Hamilton, a framer of the U.S. Constitution and one of the authors of The Federalist Papers (a "classic in American political theory"), defined--and defended as "necessary"--the Impeachment Clause, a description that still sounds starkly familiar to us today, since a removal is to be decided "by the most cunning or the most numerous" rather than "by the real demonstrations of innocence or guilt."

03. WHEN DOES AN OFFENSE BECOME IMPEACHABLE?
Section 2, Art. XI mandates that: "The President ... may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."

The phrase "may be removed from office" signifies that a verified complaint of an impeachable offense to be deemed impeachable should be initiated and tried while the Executive is still "in office" serving the six-year presidential TERM OF OFFICE--and certainly NOT after the term has lapsed or terminated.

For how could the President be "removed from office" if the President is already out of office, having served the full six-year TERM OF OFFICE?

The phrase likewise means that--in order to be impeachable--any allegation of "culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust" must be committed by the President DURING the presidential TERM OF OFFICE, while still being authorized to exercise Executive Power--and certainly NOT after the six-year TERM OF OFFICE has lapsed or terminated, and surely NOT before assuming the Office of President.

For how could the incumbent be held liable to be "removed from office" for offenses committed before assuming office as Presideng or after having already served the prescribed TERM OF OFFICE?

Then Vice-President Gloria succeeded to the Presidency to serve President Estrada's unexpired term which ended at noon of 30 June 2004.

Gloria was allowed to run for President during the 2004 elections. She was "proclaimed elected," having received the highest number of votes in the certificates of canvass prepared by the board of canvassers of each province and city, and assumed the Office of President beginning at noon 30 June 2004--as successor to herself, the incumbent President--for a NEW, SECOND six-year TERM OF OFFICE.

What this means is that, the alleged election fraud which is now the subject of so much controversy, cannot be regarded as a valid impeachable offense for Gloria to be "removed from office" during her NEW--or SECOND, now current--six-year TERM OF OFFICE, since the factual basis of the alleged offense committed occurred at the time Gloria was still serving her FIRST TERM OF OFFICE as President which already expired at noon 30 June 2004.

For how can Gloria be "removed from office" during her SECOND TERM OF OFFICE for an alleged impeachable offense committed during her FIRST TERM OF OFFICE as President that has already lapsed or expired on 30 June 2004?

Is the Supreme Court decision in Aguinaldo v. Santos (212 SCRA 768, 1992) relevant?

Not only that, the case of Gloria's classmate William Jefferson "Bill" Clinton is also pertinent and instructive.

Bill faced a lawsuit filed against him by Paula Corbin Jones during his incumbency as U.S. President for sexual harassment which occurred while Bill was still Governor of the U.S. State of Arkansas. The evidence-gathering process in the Jones case ultimately uncovered Bill's affair with White House intern Monica S. Lewinsky. It was this relationship with Monica and allegations of perjury in a deposition in Jones case--with Bill now U.S. President--that fueled his impeachment trial, and NOT his earlier tryst with Jones as Arkansas Governor (See Clinton v. Jones 520 U.S. 881, 1997).

No one, of course, is above the "Rule of Law." And so, like classmate Bill (who eventually paid $850,000 to settle the Jones sexual harassment suit), Gloria is still "liable and subject to prosecution, trial and punishment acording to law" for offenses she allegedly committed during her FIRST TERM OF OFFICE that ended 30 June 2004--but NOT, to repeat for emphasis, to be impeached and "removed from office" during her SECOND TERM OF OFFICE.

04. THE INSIGNIFICANCE OF PULSE ASIA AND SWS SURVEYS SPINNED AS SIGNIFICANT
The Philippines is proclaimed as a "democratic and republican state"; but it's constitution allows the President to be chosen by less than an absolute majority (fifty plus one) or by a MINORITY--Ramos (21%); Estrada (39%); Gloria (40%) of total votes cast.

Arroyo, the INCUMBENT running for a new mandate in May 2004, garnered 40% of the votes cast, while the other 60% (100% minus 40%) voted for the six other presidential candidates.

By opting to vote for candidates other than Arroyo (the "incumbent," to repeat), the 60% obviously wanted to change the "incumbent" seeking re-election for another.

That was May 2004.

It's now, "the first quarter of 2006"; and SWS tells us in a recently-released survey that 48% say that "It is good for the country if PGMA will be removed by means of a People Power."

But 60% already wanted to kick her out in 2004. Now, two years later in 2006, 48% want her "removed by means of People Power" (or "kicked out").

So, the data to compare with are: The solid 60% in 2004 (with no "undecided" votes cast) and a lower 48% in 2006 against GMA.

That's a spread of 12% (60% minus 48%) in two years.

In an earlier survey, Pulse Asia tells us that fully 65% want Gloria to quit in 2006; but, as early as 2004, 60% (100% minus 40%) did not want her to be President in the first place, reflecting a difference of only 5% (65% in 2004 election minus 60% in 2006 survey).

At 3% margin of error, is the recent Pulse Asia survey result showing a difference in preference (during the 2004-2006 time frame) of only 5% against Gloria significant? Really, Pulse Asia?

Is SWS (and Pulse Asia earlier) both ignoring altogether the relevance or significance of what contradicts its "mind-set"; its "selective thinking"; or its "confirmation bias," perhaps?

05. CONGRESS, THE ONLY LEGITIMIZER AUTHORIZED TO EFFECT A CLOSURE ON GARCI AND GLORIA'S LEGITIMACY
Sec. 4 (4th par.), Art. VII states that:

"The returns of every election for President and Vice-President, duly certified by the board of canvassers ... shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall ... open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

"The person having the highest number of votes shall be proclaimed elected ..."

So, Gloria did not proclaim herself President; Congress "proclaimed elected" Gloria. Hence, it was Congress that "legitimized" Gloria's assumption to the Presidency--and her alleged "cheating."

In reality, not just Gloria, but Congress should bear the blame as well for their negligence, dereliction in the performance of the duty entrusted to "canvass the votes."

Congress, THE LEGITIMIZER, particularly the Senate President to whom the "certificates of canvass is to be "directed to," should be ashamed of their dereliction, apologize to the Sovereign for their negligence, and rectify their mistake.

The congressional Power to Proclaim Elected the President carries with it the Power to Review (as in "to appoint" carries also "to remove") for the purpose of either affirming or rescinding that proclamation issued.

The Power to Review the Proclamation can be implied from, or is incidental to, the Power to Proclaim Elected, since Sec. 4 (6th par.) cited specifically provides that:

"The Congress shall promulgate its rules for the canvassing of the certificates."

The power to promulgate "rules for the canvassing" obviously carries with it also the power to review the manner of canvassing.

Not only that, Sec. 4 (5th par.) further suggests that the additional authority to Congress to "break a tie" may justify resort to the power to review:

"... but in case two or more shall have equal and highest number of votes, one of them shall be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately."

Section 30 of R.A. 7166 (Synchonization and Electoral Reforms) implements the constitutional duty of Congress to canvass under Sec. 4, Art. VII cited earlier:

"Congress shall determine the authenticity and due execution of the certificate of canvass for President and Vice-President as accomplished and transmitted to it by the local boards od canvassers, on a showing that:

"(1) each certificate of canvass was executed, signed and thumbmarked by the Chairman and members of the board of canvassers and transmitted or caused to be transmitted to Congress by them;
"(2) each certificate of canvass contains the names of all of the candidates for President and Vice-President and their corresponding votes in words and in figures; and
"(3) there exists no discrepancy in other authentic copies of the certificate of canvass or discrepancy in the votes of any candidate in words and in figures in the certificate."

The authority to review the manner in which Congress performed its "determination of the authenticity and due execution" of the certificates of canvass is NOT to be confused with that in a contest "relating to the election, returns and qualifications of the President and Vice-President," which the Constitution confers solely upon the Supreme Court (sitting as PET).

Legalists can argue that Congress is devoid of that authority to Review; but the public interest towards the "closure" to questions concerning Gloria's "legitimacy" as President demands that any doubt raised be resolved (please!) in favor of recognizing that authority.

For no congressional proclamation; no "legitimacy" to Gloria's presidency.

06. THMUB PRINTS DO NOT LIE
In conducting the review, Congress should bear in mind this time around that fingerprints (like DNA) never lie.

Each certificate (prepared in 7 copies with one already with PET) bears the incontrovertible "right hand thumbmarks" of the three members of the board of canvassers of each constituency along with their signatures.

Signatures can easily be faked or forged; but thumb prints do not lie.

Instead of calling Garci, Ong and the rest of the partisan hustlers who were not even present during the actual voting and canvassing in the provincial and municiapl levels, Congress should summon all three members of each board of canvassers (career officers) assigned to all contested constituencies (provincial and city first, municipal boards later).

Let experts (independent and from the COMELEC) verify the authenticty of the certificates and thumb prints and let the board members attest to the correctness of the words and figures they wrote in the certificates.

Having done that, proceed to compare everything affixed or written in all 6 (since 1 is with PET) copies available for each certificate in front of the board members in public view of those interested to witness the review of the canvassing.

So, let Congress, the ONLY constitutional "legitimizer" (and no other entity), review the "legitimacy" of that proclamation in the manner proposed above so that the Filipino People can look forward to a finality--the "closure"--of the longest "election period" in world electoral history.

After this, ONE TERM ONLY, NO RE-ELECTION, NO DYNASTY, and INELIGIBILITY OF PERSONS WHO EVER OCCUPIED ELECTIVE POSITIONS LOCAL AND NATIONAL, INCLUDING BARANGAY, PARTICULARLY THE ELECTIVE INCUMBENTS, FROM THE TIME THE PHILIPPINES BECAME A REPUBLIC ON 04 JULY 1946.

Lord, please, bless the Filipino People with a government without the MARCOSES, ARROYOS, ESTRADAS, DRILONS, ANGARAS, DE VENECIAS, LACSONS and the rest of ALL the TRAPOS who, collectively, destroyed this nation and give the remaining 80 million promdis the opportunity to serve.