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GMA’s 7-Page Covenant

(Article published in the Nov 10, 2003 issue of TODAY, Business Section)

By the time this column sees the light of print (10 November 2003), the 7-page draft of a so-called “Covenant to Ensure Principled Adherence to Constitutional Processes and To Strengthen the Democratic Institutions” prepared by Malacañang will have been, either a landmark document, or a mere scrap of paper.  As I crank this out of my computer, reports in the media seem to indicate the greater likelihood of the latter rather than the former.  Hence, I read draft in the same vain as the tons of paper generated in this time of year, those “papers” submitted by unconcerned students to their equally nonchalant professors “in partial completion of the requirements of” their undergraduate courses.

It is easy to see why GMA’s draft would readily garner a grade of “5”, no lower mark than which a professor could give.

The title appears pompously contrived and consequently too long.  “Covenant”, which used to be a revered term but was irretrievably debased when used by the late Ferdinand Marcos to describe how he was bound to the leadership of the nation, is, to begin with, itself ambiguous, even in biblical literature. It could mean a contract or it could mean an oath.  And the draft is neither.  The proposed “agreement” is made “subject to approval, where applicable” and thus does not propose to bind the signatories quid pro quo nor unilaterally.  Better to call it a “letter of intent”, a dubious instrument brought into the country by foreign investment bankers and their lawyers, designed to simply memorialize what they have done, to support reimbursement for their travel and representation expenses, but really, as some even expressly stipulate, a “non-binding agreement”, meaning, nobody honestly believes that it will hold water in court should it be necessary to invoke it. 

Perhaps aware that editors, when running out of print space, would cut a story from the end, the title tries to slip in what the paper is supposed to do.  But a Freudian slip reveals too much of the wordsmith.  “To ensure principled adherence to constitutional processes” sends the signal that some people, presumably those who signed the offensive impeachment complaint, are conceived as following constitutional processes but are not principled.  And “strengthen the democratic institutions” betrays a naïve belief a mere hand shake has the capacity to prop up human institutions which are threatening to implode due to the tug and pull of internal contradictions.

The first portion is a “Preamble”, an unabashed attempt to draw some solemnity from the Constitution.  But whatever cosmetic virtue there is in the word is immediately wiped away by the series of eight WHEREASes.

As every crafty lawyer knows, (lawyers are called crafty because it is they who craft the drafts), a WHEREAS, is not an essential part of a contract but is often put in there to provide the context of the core agreement.  It is not a stipulation, but is an aid to interpreting a stipulation should it be in the interest of one of the parties to bicker about a term or two in the contract.  Hence, it is place to plant booby traps, designed to remain unnoticed until the time, should it ever come, for it to explode.

            Two land mines are immediately evident in the WHEREASes.  First, there is “the filing on 23 October, 2003 of another impeachment complaint”.  Ignore the error of a comma after October.  Most likely an excusable confusion of the typist between the American and international date formats.  More significant is “another”.  Side by side with the date, it presents as a fact the Judiciary Development Fund impeachment complaint is of the same genus and is at the same stage as the first impeachment complaint of Erap Estrada, which everyone considers as having been “initiated”. Aha! Then, the one-year ban on second impeachment complaints is in effect.  But wasn’t that among the major issues the Supreme Court was consulting its amici about for two boring days?

            The other is a one-liner, for emphasis no doubt, saying that our great and fearless leader must show us the way, i.e. “President Gloria Macapagal Arroyo must lead forthwith in responding to the call”, not the call of nature but “the urgent call of the hour” to prevent the worsening of our present crisis.  But why GMA only to lead?  Why not the proposed signatories and endorsers?  That, to be honest, stumps me.

            The Preamble is followed by two sections called successively “General Provisions” and “Specific Provisions”, both totaling 3 pages.  Only in this age of word processors has reproducing texts ad nauseam become in fashion.  In the age of the manual typewriter, all that verbiage would have been disposed of by simply saying that “Sections So and So of Articles So and So are hereby incorporated by reference and made a part hereof”.  Still verbose, but merciful to the clerk typist.  

            The abundance of the verbiage, however, could not obscure the undertones which may not be completely acceptable. For instance, the Constitution is raised up as “the source of all governmental powers. Article I, Part I)”  Does not the Constitution itself say that all government authority emanates from the people (Sec. 1, Art II)?  If the document is the source, then the interpreters of the document hold the key to its meaning.  Listen, carefully, boys.

            Another, Article 1, Part II.  The last sentence says that the House of Representative’s “oversight function must be exercised within the paraments as established by jurisprudence”.  Now, boys, it is possible you cannot spell “jurisprudence” or, if you did not take up latin at the Ateneo, you do not know what is meant by “juris”.  Go ask your fathers, they know both.  In fact, allergic to them.  

            I give this unsolicited advice not because I am for you, boys.  What you did is as irresponsible as my driving drunk without a license.  But Part I and Part II are not, in my parental mind, the proper ways to put you in line.  

            At any rate, to finish my grading of the covenant. The heart of the draft is “Part III- Agreement”.  There is no need to examine this closely.  Others more interested and more learned than I am (assuming without proving that I have a claim to any learning) have done that already.  But it stands out as the only portion in the draft that makes me think that maybe it should get a more generous rating of “3”.  

            The value of Part III is not its contents but its tenor. Part III has the aura of an oath, not of a contact.  It is a promise to do something, specific for the House and General for the Supreme Court and the Executive, without what lawyers call, a reciprocal commitment on the part of the counterparties.  Its virtue is that it calls to mind the oath that our public officials swore before us.  And it reminds us that the last resort of those like me, who are sick and tired of all this, is to swear at them.