THE MORAL CONSISTENCY BROUHAHA

Over there at DJB’s blog is a post entitled MORAL CONSISTENCY AND REGIME CHANGE. This is actually part of his continuing crusade on the search for morally consistent principles on how a regime change should occur regardless of who is the sitting President. For a clearer understanding as to what he means by the search for the so-called eternal principles, let us read what he has to say:

I believe that the real issue for Democracy in the Philippines is how Regime Change is supposed to occur, inside or outside the Constitution. How we want or expect it to occur the next time is colored by everything that happened the last time, and especially by our understanding of the transcendental moral principles governing our actions as citizens. I believe the task is to discover what those eternal principles are. What Politics, what Law, what Morality are we willing to live by no matter who the President is. Or the AFP Chief of Staff. Or the Chief Justice. Or the Vice President. What is the morally consistent strategy for regime change?

I’ve posted some of my comments but the comment threads have become unusually long that it takes time to read and react to each and every piece of it without getting misquoted, taken out of context or simply opposed for the sake of opposing. So I decided to post an entry in my blog for others to have a clear grasp on what my position is with regards to this issue (assuming they are at all interested in knowing where I stand). By the way, I admire, respect and most often than not agree with DJB’s opinions on current social and political issues. But on this latest post of his, I’m left with no other choice but to disagree with him.

For me, the real issue for democracy in the Philippines is not HOW a regime change is supposed to occur but WHY a regime change should occur. If the reason for regime change is to oust a corrupt, incompetent and immoral government, then I don’t see any reason why we should limit ourselves to certain moral standards in achieving the desired result. In the current Philippine political setting, there are only two mechanisms by which the people can effect regime change: the constitutional and extra-constitutional. The former obviously has a limited scope, owing to certain constitutional parameters that must be complied with before the same can be exercised. The latter, on the other hand, is limitless. It can be peaceful. It can turn violent. It may involve the participation of the broad masses or only a segment or sector of the population. Or it may have an armed component which could either be the people themselves or the armed forces of the government under seige. There is no written or unwritten rule requiring a particular method by which an extra-constitutional regime change must be undertaken. Given the above assumptions, the following questions are asked: Are these two strategies mutually exclusive? Which is the better, moral way between the two?

I submit that we must first exhaust the remedies provided by law and the Constitution before we even entertain any thought employing extra-constitutional means. Only when such democratic institutions fail to render justice or exact accountability from erring public officials should we assert our revolutionary right to correct the evils in the system by whatever means. Hence, the morality aspect only comes into play when:

1. Despite the obvious and successful moves by the powers that be to block and frustrate the law, the people play blind to the immorality of it under the false expectation that the law will eventually work its way out to render justice to the oppressed; or

2. Instead of exhausting first all available legal and constitutional remedies, the people right away resort to extra-constitutional means to achieve their end.

Corollarily, when the issue involves no less than the President of the Philippines, be it one of legitimacy or of the fitness to stay in office, the Constitution expressly provides for two ways by which a sitting President may be booted out even before the expiration of his or her term. The first is the lesser-known provision in Section 11, Article VII which in essence allows the Vice President to immediately assume the powers and duties of the office as Acting President if a majority of all the Members of the Cabinet transmit to the Senate President and to the Speaker of the House their written declaration that the President is unable to discharge the powers and duties of his office. The President can subsequently issue a counter-declaration to the effect that no such inability exists. However, when the same majority of Cabinet Members insist on their earlier declaration that such inability indeed exists, they will have to secure the concurrence of two-thirds of both Houses of Congress which shall convene precisely for that purpose.

The other way is of course found in Sections 2-3, Article XI, more popularly known as the impeachment process. A two-thirds vote of all the Members of the Senate is necessary for a conviction. This was applied during the time of President Joseph Estrada, but the process had to be aborted when the House Prosecutors walked out at the height of the hearing after the vehement refusal of eleven Senators identified with the former President to open the second envelope.

DJB as well as commentators Hillblogger and BFR contend that due process was not accorded Erap when the Prosecutors unilaterally walked out while then Chief Justice Hilario Davide did not bother to lift a finger to cite them for contempt. As regards Davide, it was certainly within his discretion as Presiding Judge whether or not to apply the contempt powers given him. I am not saying what he did was absolutely right. I am not also saying what he did was wrong. I am merely emphasizing that it was a judgment call on his part. He, like the others who observed the proceedings, was probably too stunned to even think of preventing the dramatic walk out. And the suggestion that the Prosecutors should have been cited for contempt was more of an afterthought than a spontaneous idea that cropped up only after some quarters opined that the threat of contempt could have compelled the Prosecution to resume the impeachment proceedings against Estrada.

Be that as it may, I still doubt if the Prosecutors would have reconsidered going back to trial even with the threat of contempt hanging over their heads. At that time, emotions ran so high that the Prosecutors and their supporters decided to continue the fight at where else than EDSA and resumed instead their call for the President’s resignation. They felt that the impeachment trial was already a foregone conclusion, an exercise in futility. With the refusal of the eleven Senators to open the second envelope, they foresaw that each and every attempt to present damaging evidence against Estrada would be blocked because the Erap majority in the Senate was hell bent on protecting the beleaguered President. They were not merely acting as Senator-judges, they were acting as Senator-lawyers!

Hillblogger blames the failure of the impeachment process on the Prosecutors led by Joker Arroyo and company for disallowing the trial to continue. She contends that the walk-out was an affront to the 11 million votes that catapulted Erap to the Presidency and that his eventual ouster was the result of some premeditated connivance among the media, the clergy, the elite, the intelligentsia, the leftists and the middle class. She condemns those who supported EDSA 2 for imposing their own brand of moral consistency on people like her. But what struck me the most was her and BFR’s thesis that these groups conspired against Erap simply because he is not one of them!

Allow me, therefore, to dispute these allegations before the same will be passed of as the moral truth behind the ouster of Estrada.

First, as I tried to explain in the comment threads of that article, it was the pro-Estrada Senators who made a mockery of the democratic processes and circumvented the purpose of the Constitution when they resorted to applying a strict interpretation of the technical rules of procedure. An impeachment trial is sui generis, meaning, it is a class of its own. It is neither a civil nor a criminal case. Hence, procedural rules must only be used suppletorily if only to arrive at the truth behind the allegations. What the Craven Eleven did was treat the impeachment as if it was a regular criminal proceeding which should not have been the case. Be it noted that an impeachment trial does not even determine the criminal guilt of the accused. The only question to be resolved is whether a sitting President deserves to continue in office based on the grounds of impeachment as provided in the Constitution. From the start of the trial until the attempt to open the second envelope, the pro-Estrada Senators, from the tenor of their interpellations, were already bent on frustrating the truth from coming out. It was not a question of who allowed or disallowed the trial to continue. It was a question of whether or not to participate further in a trial that had become a moro-moro. Of course, it was the prosecutors who walked out. But to treat their walking out as equivalent to disallowing the impeachment to continue is like treating a chicken’s egg as similar to a dinosaur’s! The better questions to ask should have been: WHY did the prosecutors walk out? WHY was the impeachment trial discontinued? Moreover, if you were confronted with a situation whereby each and every evidence you present is opposed on some dubious technicality which, if allowed to proceed, would result in a travesty of justice, will you still waste your saliva arguing your case before a panel of hostile Senator judges? I would rather risk being cited for contempt than being deceived into hoping for an outcome that was literally scripted from the start.

Second, while it is true that the Clergy, the Elite, the middle class and the Left took active roles in the Erap resign movement that led to the culmination of EDSA 2, their reason was not because they simply disliked him for not being one of them. That is too flimsy a reason to even consider and an insult to those who sincerely believed the accusations against Erap. I concede that there may be others who were either too harsh or otherwise in a hurry to comdemn his person but that does not change the fact that Erap’s malfeasance was the main cause of his downfall. I no longer wish to enumerate and discuss the various charges levelled against Estrada. He is now being tried for plunder before the Sandiganbayan.

Third, it was not EDSA 2 that failed to consider the plight of 11 million people who voted for Erap. It was Erap himself who betrayed their cause when he associated himself with dubious personalities that used his name in vain in order to gain an upperhand in lucrative transactions both in and out of government. Besides, 11 million people is nothing compared to the more than 80 million who would stand to suffer the consequences of a discredited Presidency. Of course, we can always argue that life as a whole was much better and democracy was healthier during the the time of Erap than under GMA’s rule. Under present circumstances, I’ve always said that Erap would even be a much better alternative to Gloria. In fact, quite a considerable number of people regretted having supported EDSA 2 that brought to power a President far worse than her predecessor.

But wait. There seems to be a misconception and a misappreciation of the facts. EDSA 2 was never intended for Gloria Macapagal-Arroyo. As far as ordinary people like me were concerned, she was merely an accidental beneficiary. We thought of EDSA 2 more as a quest for truth and accountability, not a class war between the Elite and the masses as some would want to impress upon and perceive. I supported EDSA 2 because I was convinced of Erap’s culpability, not because I wanted to consciously disregard or disenfranchise the 11 million people who voted for him.

Fourth, DJB opposes the means by which Estrada was ousted and condemns what he calls the military mutiny of Angelo Reyes as a morally inconsistent strategy for regime change. He thinks EDSA 2 was merely a cover for what actually was a military mutiny of the AFP in conspiracy with the Arroyo couple and of ordinary people who wanted Erap deposed and were duped into thinking that the AFP Generals’ withdrawal of support was forced on them by People Power. He believes the end does not justify the means and puts heavy premium on the impeachment process as the only way to legally remove a President.

DJB may have a point but I am more inclined to believe that it is in the END and not in the MEANS where this issue of moral consistency should be stressed and applied. To reiterate, I agree that we must first exhaust all available legal and constitutional remedies. By all means let us uphold the rule of law! But when such remedies are precisely rendered inutile by very people mandated to uphold them, like what happened in the impeachment case against Estrada, isn’t that enough reason to seek redress through other means even if it suggests going outside the express provisions of the Constitution? I am not saying here that what happened in EDSA 2 was unconstitutional. As a matter of fact, I have always held the view that if it was not outrightly constitutional, then it was at least extra constitutional. The withdrawal of support by Angelo Reyes may not find support from any specific, express provision in the Constitution but it doesn’t follow that the act was illegal or unconstitutional. In fact, if we only broaden our horizon a little more, it may be justified under Sections 1 and 3, Article II of the Constitution. Thus, if withdrawal of support was the only means then to shorten what otherwise could have been a long, drawn out battle between Erap’s supporters and the Edsa 2 forces (and which could have resulted in bloodshed), why can’t the same formula be applied in Gloria’s case? A military mutiny (be it in the guise of a coup or withdrawal of support) in its generic sense and without the support of a critical mass seems to be a wrong option. I don’t even think it would succeed. BUT when taken in the context of EDSA 2 and the volatile political situation at present, I don’t see anything fundamentally and morally wrong with it.

To me, what is morally reprehensible is what the current military top brass is doing — supporting a morally and legally bankrupt presidency.