The Bangus Ultimatum

I’ve always thought that an EDSA-style insurrection was a great hack. Gather a sufficient number of people (usually pissed), and there is art and politics and rage and religion, and with some luck, actual change. It can be beautifully executed, distributed intelligence and diverse agendas converging to achieve  shockingly fast political transitions, all with relatively no violence. I have heard my mom talk about Version 1.0, and I was there for Dos.

I’m not sure if I have it in me to go to another.

As beautiful and as enticing as it is, an “EDSA” (I think Makati is the place to be right now) is still a hack - a temporary solution. It is a well-placed application of mass and motion, like nudging a pinball machine with your hips. It’s sexy and exciting as hell, but like any hack, can have unexpected, unintended consequences. Case in point: today’s rally would probably be joined by Erap Estrada, recently convicted of plunder (later pardoned by GMA). Didn’t we already get rid of this sleazebag years ago? Aren’t we supposed to be raging about the kind of corruption that makes Erap free to join rallies? And don’t get me started with Joe “Moral Revolution”* De Venecia within the ranks of the protesters. I’m beginning to think we’ve arrived at the planet of the apes, where the apes ride on horseback and the humans are scurrying like vermin, and the whole world is upside down. Can we really build our futures on such paradoxes?

Maybe I’m just getting old, but  really, I’ve had enough of this shit. I want something more elegant, more lasting.

* Smirk

Alright. Let me just ease into this a bit.

I haven’t attended an NBN/ZTE related rally. Not a single mass for truth or accountability. And although I am not exactly a fan of this administration, I find myself unable to rely on non-secular institutions to solve our problems. Lord knows what happened the last time we had a “divinely-inspired” insurrection/coup d’etat.

It’s easy to tack this mess to character flaws - greedy politicians, or a president who is just plain evil. Or maybe we can look at the way our political code is written and executed. Clearly the provisions giving the president the power to enter into executive agreements was too easily exploited. Perhaps oversight powers of Congress for deals like this could have been more explicit.

This is a failure of secular institutions. This means that this is ultimately our responsibility as voters.

How dare I put this back on our laps, right? Did we really get to know our Congress Critters? Were we actually willing to stick our neck outs for clean, credible presidential elections? Are we actually determined to go out to the streets, for as many times that it would take until we get the leaders we deserve?

The freedom of association is often summoned and repeated like mantra whenever one begins to talk of regulation concerning fraternities. It’s as if mentioning it alone is enough to end all debate and render these organizations untouchable.

My problem with the whole freedom-of-association routine is that there are at least two meanings of the right, and people conveniently confuse and conflate these meanings to muddy up the debate.

You can view the freedom of association as protecting those acts that are constitutive of “association” – the carving out of exclusive times and spaces, the appropriation of collective signs and names, simply hanging out and communicating. This is actually an aspect of the right to privacy – the right to manage and be autonomous about your relationships. As an aspect of personal liberty, it is not subject to regulation without compelling state interest, so the bar for messing with this one is set pretty high.

And then there’s the public, “expressive” meaning of the freedom of association - shaped by the intersection of the rights to free speech, assembly, and to form unions and organizations not contrary to law.

These two meanings of the right to association serve different ends, and the scope of protection (and the extent of permissible regulation) would have to be read in the context of those ends. How exactly do you “ban” or “abolish” those acts that are constitutive of association in its private aspect?

But association in its public aspect is another thing. It is deeply correlated with values of free speech, assembly, and the right to petition the government for redress of grievances. Values that are not necessarily affected by a selective and narrowly-drawn regulation of fraternities.

Well, I guess we won. It’s a sweet, solid victory: A unanimous decision to issue what could be the fastest certiorari and mandamus writs in the High Court’s history. Also, immediately executory. (So take that, Abalos)

I like doing casework for individual litigants at trial court level, but there’s something about doing Rule 65 work that thrills me to no end.Maybe it’s because most of the time, you’re not really fighting for any identifiable personal interest, but for an idea, a policy, an interpretation of law and underlying values. You can see the edges of the whole enterprise from this vantage point, and, if you think you’re up to it, push those limits forward.

Granted, this was NOT the party list case that I wanted H to handle. Perhaps in some weird-ass alternate universe…

Attached: Akbayan/Kilosbayan’s Petition for Certiorari. Bitchin’ Arguments! Exhilirating Points of Law!

Cert Petition - Rosales v. COMELEC

Deep into the night, a majority of the members of the Lower House are plotting to knife the Republic as we sleep.

So I’m stuck in another losing battle, doing research for another certiorari petition that could either mean everything, or be totally useless. A cert petition against the House is always a long shot, but one has to try. One should always try.

This is a problem of constitutional interpretation. Representative Jose De Venecia and the rest of Malacañang’s lemmings have interpreted Article XVII Section 1 of the Constitution (the all-important amendments provision) to mean that they can smother the Senate with raw numbers, and amend the Constitution notwithstanding the Senate’s opposition.

A crude, superficial reading of the Constitutional provision’s text can support that interpretation. We want to convince the Supreme Court (and everyone) that this interpretation is wrong: it’s shallow and stupid and just doesn’t fit.

The Constitution is code. Beneath this code is an informational underspace, a substructure of history and values. Evidence of original intent. Every first year law student is taught in her first semester seek out this intent. The text of the Constitution, standing on its own, is problematic. The structure of the Constitution, taken as a whole, and the records of the 1986 Constitutional Commission that trace design decisions of its framers, on the other hand, give a picture of what the Constitution ought to mean. Bicameralism is there by design. It embodies values that we have chosen, for good or bad, as a polity. A bicameral structure was put in place precisely to diffuse the power of Congress, and prevent it precisely from doing the kind of rented, unilateral clusterfuck half of it is doing right now.

No ghoulies for today’s post. Although I’ll share something really scary (at least for consti law dweebs). This is Justice Puno’s dissenting opinion in Lambino v. COMELEC, the latest “people’s initiative” case. It lost only by one vote. In a parallel world, this is the prevailing ruling of the Court, and we’ll probably have another spooged constitution on our plates by the end of the year.

I’m not one of those who think that the provisions of the Constitution are sacrosanct, and should thus be preserved at all cost. The amendment process was built so that we could do exactly that - evolve our core legal principles so that they can track our changing values. There are parts of the 1987 Constitution that are just broken, and given a well thought out chance to fix them, we should.
What I oppose, however, is hijacking the amendment mechanisms, and in such a sleazy manner, all to advance a selfish agenda.

The dissenting opinion should be taught alongside Carpio’s main opinion, so that it can be carefully analyzed by generations of law students. I don’t even know where to begin (I see a paper here somewhere) with Justice Puno’s opinion. Part of me couldn’t accept that even Justice Puno was buying what he was saying. True, I’ve always found the amendment/revision distinction problematic, but I wasn’t prepared for Puno’s tremendous leap, that as long as we retain the republican character (less than a line in our Constitution), all deep structural changes aside, it’s still an amendment. As an (erstwhile) programmer I have trouble accepting that. Instinctively you feel the difference between a patch and a new release.

So there.  I’m back worrying about Constitutional Law. That’s another scary thing.

I promised a friend I’ll blog about this, so here goes.

Ang Ladlad, a network of LGBT organizations, registered in the COMELEC last Wednesday so they can run for Congress under the party-list system.

There has always been a lack of informed political discourse on gender issues in the Philippines, and that Isagani Cruz piece shows just how ignorance and bigotry have taken hold at the core of our institutions. The law continues to speak with the voice of an old, male, straight, upper class mestizo. For someone who continues to look to constitutional ideas, this is a profound tragedy. The true limits of freedom can be found in who we choose to marginalize. If we continue to deny rights to a large number of human beings based only on gender or on the way they structured their private relationships, then what freedom we claim to have will be tainted by inauthenticity.

Help change the voice of the law. Vote for Ang Ladlad!