Time & Circumstances: constitutional law

Friday, May 25, 2012

events: corona defense-a legal technique

the defense of the CJ is a form of legal technique-a trap in order to drag the IC in a situation where there would be a 'question of law' , hence beyond the jurisdiction of the IC since the SC has exclusive jurisdiction on questions of law.

the IC must stir clear of this obstacle on the FCDA since it is actually irrelevant. the CJ himself said it: " wala pa akong nakitang jurisprudence regarding the alleged conflict". all it has to do is stick to its guns on the SALN law.

it is actually that simple. the CJ has the prerogative ex oficio with regard to the implementation of the SALN. it is his duty and responsibility to see to it that this is implemented in the judiciary branch. if he had questions regarding its implementation, he should have coordinated with the CSC but that was not to be. there is an existing administrative resolution to hide the SALN's of the justices from the general public.

being the highest administrative officer of his branch, he constituted the appeal board for all discrepancies in the SALN's implementation and regulation. he however, chose not to. this is pure and simple misdemeanor. the failure to perform a duty.

every person who files a SALN knows its requirements. one must declare all forms of financial interests.

the none observance or application of a law does not repeal it. neither does it mean that there is no law. once it is applied, you cannot question its validity.

you might say that there is no such thing as misdemeanor in the philippine constitution.

misdemeanor is the root word for impeachable offenses together with high crimes, originally provided for under the british parliamentary provision. it understandably circumscribes 'mal-administration' but does not include malfeasance, misfeasance, nor nonfeasance which are crimes specifically defined under the revised penal code.

from misdemeanor sprung what we term as 'betrayal of public trust' and 'culpable violation of the constitution' which are acts not in the category of 'high crimes'. here, there is some truth to the saying that "impeachable crimes are what the 'legislature' says they are", limited only by public policy.

and what is 'high crime'? they are those crimes which are punishable under our penal codes and special laws. the term 'high' being a derivative of the nature of the person's or officer's public office.

conclusion

i therefore hold that it is an error to use 'ejusdem generis' in determining the impeach-ability of an offense.

you only use ejusdem generis in singular classifications. for example, in 'high crimes', defining all crimes. or in 'misdemeanor' alone defining all forms of misdemeanors.

that is the reason why its usage in 'high crime and misdemeanors' becomes a conjuration of something 'fowl' and 'twisted' because they are two independent concepts.

Monday, December 22, 2008

issue: rights of the unborn

whereas, the constitution under article ii section 12 explicitly and expressly provides that: "...equally protect the life of the mother and the life of the unborn at the moment of conception..." i felt it necessary to expound on the said matter.

what exactly is the right of the unborn?
does it have a right?

lets pick it up from the constitutional convention members...

The formula that is found in the second sentence of section 12 is the product of much debate. It is first of all important to understand what it does not assert. It does not say that the unborn is a legal person; nor does it deny, however, that the state under certain conditions might regard the unborn as a person. It does not assert that that the life of the unborn is placed on exactly the same level as the life of the mother. It recognizes that when necessary to save the life of the mother , it may be necessary and legitimate to sarifice the life of the unborn. It however, denies that the life of the unborn may be sacrificed merely to save the mother from emotional suffering or to spare the child from a life of poverty. The emotional trauma of a mother as well as the welfare of the child after birth ca be attended to through other means such as availing of the resource of welfare agencies. The provision , in fact, is intended primarily to prevent the state from adopting the doctrine in the United States Supreme Court decision of Roe v. Wade which liberalized abortion laws up to the sixth month of pregnancy by allowing abortion at the discretion of the mother anytime during the first six months when it can be done without danger to the mother.

The unborn's entitlement to protection begins "from conception," that is, from the moment of conception. The intention is to protect life from its beginning, and the assumption is that human life begins at conception and that conception takes place at fertilization. There is however no attempt to pinpoint the exact moment when conception takes place. But while the provision does not assert with certainty when human life precisely begins, it reflects the view that, in dealing with the protection of life, it is necessary to take the safer approach.

Incidentally, too, the respect for life manifested by the provision harmonizes with the abolition of the death penalty and the ban on nuclear arms.-----SOURCE: The 1987 Consti. A Commentary by Joaquin G. Bernas, S.J.; pp. 77-78

POINT OF CONTENTION:

1. Roe v. Wade does not legalize abortion on the first six months. The period as stated by the controversial case is during the "first trimester". It is either that the convention was mis-informed or deliberately misled.

2. The provision has the effect of over-turning the U.S. Supreme Court. Without arguments, discussion of different views, consultations , public debate and consensus which can only be properly done in the legislature. It is a very broad sweep. Congress being the repository of sovereign will. Just like the way the pope handled the collegial body tasked to study the 'humanae vitae.' The holy-ass overruled it. Typical behavioral pattern. These religious people have no respect for the democratic process. The insertion to the new provision introduces a new subject . The subject is that of the "life of the unborn". A subject which did not exist in the previous 1973 as well as the original 1935 constitutional provisions and which were eventually carried over to the present. Noting the presence of the subjects on 'family as an institution" and "the molding of youth" relative to the mandate for government support-not regulation. Bernas has even admitted that it was basically inserted to counter the possible adoption of roe v. wade in this jurisdiction. It means that Bernas stands above the U.S. Supreme Court with regard to the controversial issue. Inappropriate in the sense that its like he just turned around, pulled down his pants then showed his butt. Abhorent in the sense that it is without regard for "the rule of law." Typical manifestation of "jesuit superiority complex".

3. Abortion of the unborn is basically immoral. The perversion of government/institutions to regulate it is equally unacceptable on grounds of 'due process.' The human body must never be tampered in order to conform with society's demands. To do so, would reduce the citizen to status of an animal. We are not large cattle nor sheep to be herded. Conscience prevails in each individual. The best the government and church can do is provide support in any way possible without being coercive or intrusive towards individual dignity. Contraception is equally repulsive-it is not a solution. It makes women objects of sexual gratification. However, considering that persons have different outlooks and orientations...it must be left as a personal option. Following the doctrine of parens patria, the limitation is clear.

4. One effective way to reduce abortion is through economic sufficiency. By providing proper reforms and opportunities for personal development. Where 20% or even less of the country's elite control 80% of the resources there is no social justice. This is the root cause of most social problems. The world's resources is not unlimited. But man's greed has no bounds. The reduction in rates of abortion in the US, for example, may be attributed to government support for 'unwed' mothers in terms of benefits like tax discounts-exemptions or periodic financial allowances for the mother and child. The effectiveness of institutions.

5. Coercion of the mother to give up the child for adoption traumatizes her and leaves a stigma.

6. I strongly believe that the issue on the 'life of the unborn' deserves a separate section within the article. It should not have been inserted in such a manner as to subscribe to the narrow dogmatic prescriptions of the church. This is a patent violation on the constitutional provision for the "separation of church and state." Marriage should be viewed as a solemn agreement between man and woman or two parties. Even without the intervention of the priest. As a civil union of human beings. Otherwise to subscribe to the religious doctrine that marriage is for procreation is to follow an outdated and obsolete idea. What about gay marriages? Adoption? Don't they also result in parenting the child?

7. The section definitely deserves a re-examination, an amendment, a devolution to its original state. The insertion partakes on the nature of fraud if not trickery. A 'rider' within legislative parlance.