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Invoke Cory’s wisdom, fire Gascon

PRESIDENT Duterte should fire Commission on Human Rights head and Liberal Party stalwart Jose Gascon. Let the courts rule if this is unconstitutional, as the Yellow Cultists claim.

Duterte should invoke the wisdom of the saint of Gascon’s Yellow Cult, President Corazon Aquino, who ruled that the CHR head serves at the pleasure of the President.

Gascon should also find the decency to do what the late icon Jose (“Pepe”) Diokno, the head of her Presidential Commission on Human Rights, the CHR’s predecessor, did. Diokno resigned that post when he realized he could no longer be part of the Cory government because of the Mendiola massacre.

By their actions, both believed that the Commission on Human Rights must not be politicized and made a weapon against an incumbent President, or else it cannot fulfill its mandate, which is what Gascon in fact has been doing since Duterte assumed office.

Aquino through her May 1987 Executive Order 163 implemented the 1987 Constitution’s provision that a Commission on Human Rights be set up. After a few weeks, however, she amended this order, through EO 163-A, to specify that the CHR chairman and its members’ tenure “shall be at the pleasure of the President”.

One-woman rule
Under Aquino’s one-woman rule as head of the Revolutionary Government she imposed under Proclamation No. 3 of March 25, 1987, her order is as if Congress enacted it into law. EO 163-A has never been repealed by Congress.

Aquino must have thought that this amendment was so important that she rushed to issue it on June 30, 1987, the eve before her revolutionary power lapsed and Congress opened.

Since the commission was set up, this in fact has been the practice. CHR head Mary Concepcion Bautista (1987-1992), Sedfrey Ordoñez (1992-1995), Aurora Recina (1996-2002), Purificacion Quisumbing (2002- May 2008), Leila de Lima (May 2008 to June 2010), and Etta Rosales (September 2010 to May 2015) have all been supportive of the incumbent presidents. (An aside: Would you, dear Reader, know of anything memorable these CHR heads did to advance human rights in the country? I don’t.)

Gascon at a Liberal Party assembly: Why should a Yellow Cultist head a government body now that it is no longer in power?

Why should Gascon, appointed a year before his boss President Benigno Aquino 3rd stepped down from office, be an exception? So the Yellow Cult could use a government body as a propaganda tool against Duterte?

There are views that claim that Cory Aquino’s EO 163-A was declared unconstitutional by the Supreme Court in its decision G.R. No. 86439 promulgated in April 1989 involving the suit filed by then CHR acting commissioner Mary Concepcion Bautista against Sen. Jovito Salonga and the congressional Commission on Appointments that he headed.

That is not true. The issue that the court decided in that case was that the CHR chairman and other members have to be confirmed by the Commission on Appointments.

Obiter dictum
While it made a remark that the E0 163-A—which provided that the CHR head and members can be removed at the President’s pleasure—“has to be declared unconstitutional,” it did not categorically declare it unconstitutional as it was not the issue brought before the court.

That remark is what is called obiter dictum (literal translation: “incidentally” or “by the way”) made by a court, which a legal dictionary defines as a “judge’s incidental expression of opinion, not essential to the decision and not establishing precedent”.

The remark is clearly not essential to the high court’s ruling that the CHR head and members have to be confirmed by Congress’ Commission on Appointments: Cabinet members have to be confirmed by that body, although they can be removed anytime by the President.

Why did Cory—or her top adviser then, her executive secretary the late Joker Arroyo, also a human-rights champion—believe that the President can fire the CHR head and members anytime?

It was because they realized that in the country’s condition in which most of our rule-of-law institutions are still weak, a Commission on Human Rights, which is authorized as the Constitution puts it, “to investigate all forms of human rights violations involving civil and political rights” has such broad powers that it can be used to undertake propaganda to undermine an incumbent government.

The commission, or any other government department for that matter, has limited resources so that it is up to the CHR head to determine which “human rights violations” it would focus its manpower and finances on.

Summary executions
As the CHR under Gascon has demonstrated, it has chosen to focus its resources on alleged summary executions by the police on its war against drugs.

Has that choice been the result of an objective assessment of what issues in the entire country the CHR should focus on? Or was it the assessment of the Yellow Cult that this is the issue in which the Duterte administration has become so vulnerable, for the CHR to go to town with, in the hope of building up outrage against Duterte so he could be forced to step down from office?

Did the CHR in the past administration under leftist Etta Rosales ever investigate the communist New People Army’s execution of alleged spies in the countryside, or the massive violation of civil rights of workers at the Hacienda Luisita?

Ka Pepe Diokno had the decency to resign as head of the Presidential Commission Human Rights after the horrendous violation of human rights when the rally mostly of farmers at the Mendiola Bridge in January 1987 was violently dispersed, with police and military firing at the demonstrators, killing 12 and wounding over 51 of them.

While it could have been the top priority of his commission to investigate the massacre, Diokno resigned instead. He realized that he would have had to go against the Cory government because of the massacre, but he could not use a government body for that purpose.

Gascon, a high-ranking Liberal Party officer, obviously hates Duterte and would love to see him toppled. He should have the decency to leave government. But I guess he won’t, as he has grown fond of his P2.5 million annual salary as the ostensible CHR head, but really the Yellow Cult’s deadly operative within government, throwing dirt at Duterte to topple him.