Category Archives: right to travel

GMA’s “Pinochet Maneuver”

By Romel Regalado Bagares

On March 10, 1998 – after some 25 years in power – Chilean strongman Augusto Pinochet relinquished his power to his supposed successor, Gen. Ricardo Izurieta.  He left behind him a murderous legacy: 3,197 victims of executions, disappearances and killings from nearly three decades of a reign of terror as a US-backed military dictator. An estimated 1,000 of these victims have been disappeared and nearly 90 percent of them remain missing to this day.

Yet the dictator’s return to civilian life was by no means ordinary.  On the contrary, he made sure he would be shielded under Chilean law from being prosecuted for his atrocious human rights record.

First, he put in place a constitution under which only his top generals could be appointed as chief of state.

Second, he made sure that before he stepped down from office, the rubber stamp Chilean parliament had already passed an amnesty law that virtually absolved him of any criminal responsibility for the human rights violations committed under his regime.

Third, he did not exactly disappear from public life from then on because the very next day,  he occupied a new office at the Senate as a senator for life, in the splendid company of former military underlings and cabinet ministers who, under his direction,  wielded power as unelected legislators who could veto together any proposed legislation.

Fourth, his parliamentary office meant that he enjoyed constitutional immunity from any suit or criminal proceeding. This was because the rules of the time required that an appeals court must first strip him of immunity and suspend him from his legislative post before he could be charged in court.  Also, his senatorial office afforded him with the power to stifle detractors by prosecuting them under a law on state security.

Mrs. Gloria Macapagal-Arroyo’s stepping down from the heights of power wracked by allegations of unprecedented corruption and numerous human rights violations was no less inspired.

First, she made sure she would remain in the political limelight by running for a congressional post in her hometown Lubao, Pampanga. And she assured her win  in the elections by pampering her cabalens with development projects and doleouts sourced from her nearly limitless access to public funds while she was still President.

Without doubt, in a country where congressmen are often seen as untouchables, she thought that being a member of the House of Representatives afforded her with some measure of protection from any legal maneuver aimed at her direction by her successor, Benigno Aquino III.

Second, with the help of allies in the House of Representatives, she carved out a new congressional district in the Bicol region for her own son, Datu Arroyo, who could add additional weight to her power bloc at the Lower House.

Third, her own allies also fielded new entrants to the House of Representatives through the party-list elections, and her son Mikey Arroyo made it through this back-door entrance to the legislature as a joke of a representative for security guards, plus a good number of others.

Finally, for the piece de resistance, she packed the High Court with her appointees, and in the closing days of her administration, picked Renato C. Corona as her chief justice, over against a long-standing rule in the Constitution that prohibited such a so-called “midnight appointment.”

A Supreme Court ruled by a majority of her own appointees and presided over by her former chief of staff and presidential legal counsel was her security from any attempt to prosecute her for her legacy of profligate governance and record human rights violations not seen in the country since the martial days.

With Mr. Corona as primus inter pares at the High Court, any conviction for any criminal offense in the lower court can be easily overturned on appeal to the Supreme Court.

With Mr. Corona at the helm, any criminal proceeding against her can be torpedoed before it could prosper through the simple device of a Temporary Restraining Order (TRO).

Indeed, when it became obvious that the Aquino administration was bent on bringing her to the bars of justice, she collected on her ultimate insurance from prosecution and obtained a TRO against the Department of Justice, which had prevented her from leaving the country on the pretext that she needed urgent medical treatment abroad for a life-threatening illness.

But like Pinochet, she could not count on history to flow according to her wishes.

In the case of the Chilean strongman, he also invoked a life-threatening sickness to seek treatment abroad, following a decision by the Chilean Supreme Court stripping him of immunity from any kind of suit.  His city of choice: London.

What ensued was a series of dramatic legal proceedings that begun when a Spanish judge issued international arrest warrants against the ailing Chilean dictator for the deaths of Spanish citizens in Chile at the height of his dictatorial rule. It culminated in a judgment that would be hailed by many human rights organizations and would come to be known as the Pinochet Precedent; that is, the principle that – in the words of the international legal scholar Philippe Sands – “no one is above the law.”

In the case of Mrs.  Macapagal-Arroyo, what she did not count on was Justice Secretary Leila De Lima defying the deeply-flawed TRO issued by her beloved  “midnight” Chief Justice at her behest.

And today, we witness the historic impeachment trial of the very same Chief Justice.*

This essay may also be read in my weekly column for the Iloilo City-based The  News Today.

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Filed under Impeachment, Impunity, International Law, right to travel

Aquino wins Round One over Arroyo

By Romel Regalado Bagares

In the end, it was still the court – a regional trial court housed in a rundown, poorly-constructed government building in Pasay city, to be exact – that saved the day for the Executive in its running tussle with the Supreme Court over an ex-President named Mrs. Gloria Macapagal-Arroyo.

At 4: 30 pm yesterday, Judge Jesus Mupas of the Pasay City Regional Trial Court Branch 112 issued a warrant of arrest against her and several others for allegedly rigging the 2007 senatorial elections in favor of administration candidates.

Two hours later, it was served by a team of policemen led by Senior Superintendent Joel Coronel on her 16th floor suite at the St. Luke’s Medical Center, by all indications now the favored hospital of the rich, famous and powerful in the Philippines.

And with the judge’s signature on the warrant of arrest, a constitutional crisis was apparently averted.

It also somehow muffled criticisms the Aquino administration had moved so little and too late to prosecute Mrs. Macapagal-Arroyo, 64.

Indeed, the Executive was willing to take it to the edge of constitutional brinkmanship.

In an earlier post, we noted with dismay the defiant denial by Justice Secretary Leila De Lima of the legal worth of a temporary restraining order (TRO) issued by the High Court against a watchlist order she slapped on Mrs. Macapagal-Arroyo, which prevented the latter from leaving the country.

The high drama of Tuesday night at the Ninoy Aquino International Airport – which everyone now knows to be one of the world’s most hated, –showed she was willing to do anything, including risking a constitutional crisis, just to stop the woman said to be one of the most hated Presidents the Philippines has ever had, on her tracks.

Of course, if Justice Leila De Lima didn’t do something , Mrs. Gloria Macapagal-Arroyo , with the TRO issued by the Supreme Court in her favor in hand,  would have flown the coop.  As it turns out later, her defiance finds some strong factual and legal  support in the dissenting opinion of Justice Maria Lourdes Sereno on the issuance of the TRO.

Friday morning came, and the Commission on Elections, after voting 5-2, filed charges of electoral sabotage against Mrs. Gloria Macapagal-Arroyo with the Pasay City Regional Trial Court,

Just in the nick of time it came, as later in the day, the Supreme Court heard a Motion for Reconsideration  filed by the DOJ asking the High Court to reconsider its issuance of the TRO on the justice department order which served as the basis for placing the former president in a watchlist and prevented her from flying out of the Philippines.

The High Court threw out the DOJ’s motion. But by the time it did so, the charge had already been filed against Mrs. Arroyo and an arrest warrant issued.

The TRO only covered the question of the constitutionality of the DOJ’s issuance of a watchlist order against Mrs. Macapagal-Arroyo. Unfortunately for the former President and her lawyers, it could not be applied to the new case – for electoral sabotage, a non-bailable one –  and for which, moreover, a warrant of arrest was also issued.

This, the High Court’s spokesman Jose Midas Marquez, himself acknowledged at a press conference later in the day.

Moreover, the question of whether it was an act of desperation or a brilliant political move executed at crunch time has been eclipsed by new revelations about the High Court’s deliberations on the TRO.

You see, at his press conference,  Marquez said the TRO stays.  He also claimed the voting remained at 8-5.

A news report quoting a highly reliable source within the Supreme Court said otherwise. As Verafiles reported:

Contrary to the announcement of Supreme Court Spokesman Midas Marquez that the High Court voted 8-5 reiterating the temporary restraining order on the Watch List Order of Justice Secretary Leila de Lima issued on former President Gloria Arroyo and her husband, a highly reliable source said the tribunal,  voting 7-6, actually declared its Nov. 15 TRO inoperative following the failure of the Arroyo camp to comply with all the conditions set by the court.

The seven who voted that the TRO is inoperative were  Senior Justice Antonio Carpio, Associate Justices Maria Lourdes Sereno, Bienvenido Reyes, Estela Perlas-Bernabe, Jose Mendoza, Martin Villarama and Roberto Abad.

The six who stood firm on the TRO were Chief Justice Renato Corona, Presbitero Velasco Jr., Arturo Brion, Diosdado Peralta, Lucas Bersamin and Jose Perez.

The source said the Arroyo couple did not comply with the second condition requiring that the former First Couple appoint a legal representative to receive subpoenas, orders and other legal processes on their behalf while they are abroad.

The two other conditions were a bond of P2 million each and a requirement that they report to Philippine consulates in the countries they will visit. The legal counsels of the Arroyos also have to coordinate their travels.

The  SC also directed Justice Secretary Leila de Lima to show cause within 10 days why she should not be held in contempt of court  for refusal to comply with the TRO issued by the Supreme Court and for disrespect towards the SC.

The High Court also  rejected the Arroyo camp’s motion to schedule earlier the oral arguments on the Arroyos’ petition to lift the watchlist order and declare as illegal Department of Justice Circular No. 41 paving the way for scheduled oral arguments  on Tuesday. ( Click here for the full text)

A dissenting opinion of Justice Maria Lourdes Sereno on the denial of the Motion for Reconsideration, widely circulated on social networking sites  later confirmed Verafiles’ report.  Justice Sereno, in the same opinion, scolded  Marquez for interpreting the opinions of the justices for them.

On late night television, Marquez  would correct himself and say that indeed, the latest round of voting  has changed the make up of the Supreme Court on the issue. It is now at 7-6,  one more justice joining the dissenters.

But he omitted what  Justice Sereno noted in her dissent – that the TRO is  suspended because of the failure of  Arroyo’s lawyers  to comply with the Supreme Court’s requirement that the former First Couple appoint a legal representative to receive subpoenas, orders and other legal processes on their behalf while they are abroad.

All told, Friday was the unraveling  of the Arroyo camp’s immediate travel plans. When news of the Pasay court’s decision to issue  a warrant of arrest broke out,  her camp announced they had canceled all airline reservations for the day.

It was clear they had been outpointed in the first round.

Saturday afternoon, Mrs.  Macapagal-Arroyo underwent the inevitable  police procedural in the comforts of her suite at St. Luke’s Medical Center:   police took finger prints and mug shots, for the return to the court of the served arrest warrant.

It seems police honored her camp’s request not to release to media her mug shots  – at least for now.

Surely, the disappointment of Tuesday night was nothing compared to the humiliation of Friday night. Within two hours of the issuance of the warrant of arrest, she became the second ex-President of the Philippines to have been indicted, charged in court and arrested for a criminal offense.

Preparing for Round Two

Her camp is obviously preparing for the second round, including the  oral arguments on their first petition set for Tuesday next week.

And they may find some ammunition in a new report from the on-line magazine  that the Comelec disregarded its own rules when it voted to charge her in court without allowing her an opportunity to contest the decision in a motion for reconsideration. (There’s also the claim that it was irregular of the judge to issue a warrant of arrest when all that the government was asking for was a Hold Departure Order. Now any student of criminal procedure knows the judge on his own, may issue a warrant of arrest on his own finding of probable cause).

Already her legal advisers have indicated they’re questioning before the Supreme  Court the filing of the electoral sabotage charge and the issuance of the warrant of arrest against her.

Legal pundits are wont to say there had been instances in the past when the Supreme Court upheld  the Comelec’s decision to set aside technical rules to get to the bottom of an election case.

But the big question is whether this particular Supreme Court, headed by  a chief justice once assailed by President Aquino for being a “midnight appointee” of  Mrs. Macapagal-Arroyo herself, will give the Comelec the benefit of the doubt.

I seriously doubt it.

But then again, Friday afternoon’s 7-6 defection  at the Supreme Court wasn’t expected either.

What’s for sure — at least for President Aquino —  is that  it only just began.

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Giving GMA a taste of her own medicine?

Not so fast....PDI picture of GMA at the NAIA I

By Romel Regalado Bagares

Much as we want Mrs. Gloria Macapagal-Arroyo to answer for the crimes she committed while she was in power,   we do the very idea of the Rule of Law great harm by shirking from its high demands in our zeal to bring her to the proverbial bar of justice.

The Supreme Court has spoken, allowing her to travel abroad purportedly to seek medical treatment for her rare bone ailment,  despite our wishes to the contrary

If we must,  there are ways of holding accountable the honorable justices of the Supreme Court who gave her free rein; but  defying their collective decision and forcing a constitutional crisis is not one of them.

If, during her hold on power, Mrs. Macapagal-Arroyo  distinguished herself by the cavalier way in which she dispensed with  even the smallest of judicial niceties to suit her crooked ends,  we must not do further damage to our judicial institutions by  giving her a taste of her own medicine.

President Beningno Aquino III rose to power on a high public expectation that he will hold Mrs. Macapagal-Arroyo accountable for her administration’s misdeeds.

That until now, his Department of Justice has not filed a single case against her in court cannot be blamed on the accused;   It certainly defies any justifiable explanation why our prosecutors had not acted sooner.

The only possible explanation is the seeming lack of focus of this administration’s officials to do what should be done.

But what it also shows is the Aquino administration’s lack of imagination.

It  knew from the very beginning that Mrs.  Macapagal-Arroyo had  packed the Supreme Court with her appointees.

At the very least, it could already have anticipated exactly the kind of decision the High Court’s majority handed down earlier today and accordingly taken steps to deny the good justices the opportunity given to them to vote the way they voted today.

But instead it took its sweet while, issuing press releases about the urgent need to prosecute Mrs. Macapagal-Arroyo without actually prosecuting her. As its prosecutors have now painfully learned, press releases do not a case make.

Too,  when it had strong public support, it waffled in its  position that the midnight appointment by Mrs.  Macapagal-Arroyo of Renato Corona as chief justice of the Supreme Court was unconstitutional. It could have forced the issue by calling for an impeachment of Corona and the other justices who closed ranks behind their colleague Mariano Del Castillo in the latter’s wanton plagiarism in the Comfort Women case.

That would have been the constitutional way of resisting the Corona Court’s unconstitutionality. Alas, even that opportunity, the Aquino administration failed to seize.

What a year-and-a-half of lost opportunities for the Aquino presidency.

And now it had to resort to highly doubtful legal sleight-of-hand to keep Mrs. Macapagal-Arroyo from leaving the Philippines.  Irony of ironies, in order to uphold the rule of law, it has become necessary to trample on it.


Filed under asylum law, right to travel