Wednesday, March 30, 2011

Lacson is not - and should not be - above the law

Two words describe the actions of Sen. Panfilo Lacson who went into hiding before the warrant for his arrest in the Dacer-Corbito double murder case could be served, and later on surfaced after the charges against him were thrown out by the court: mockery and impunity. As defined by the dictionary, mockery is ridicule, contempt or derision, while impunity is immunity from detrimental effects, such as punishment, for one's actions.

It is true the court nullified Lacson's indictment for the murder of publicist Bubby Dacer and his driver Emmanuel Corbito in 2000, but before this a warrant for Lacson's arrest was issued upon initial finding that there was probable cause to detain him. Under the criminal justice system, when there is a finding of probable cause - although erroneous at times - a warrant of arrest is generally issued to detain the accused person pending trial.

In serious offenses like murder, bail is not a matter of right and the accused person has to prove that the evidence of guilt against him is not strong to obtain temporary liberty. Failure to do so would mean the accused will have to stay in jail while the case against him is being tried. Panfilo Lacson, a senator no less and a former PNP Chief and head of the Presidential Anti-Crime Commission under former Pres. Erap Estrada, flouted such established criminal procedure by going into hiding or, more to the point, disregarding the actions of those invested with the authority to run the criminal justice system while at the same time seeking remedies from them by asking the nullification of the charges against him. It is a classic case of eating one's cake and having it at the same time.

For a person who holds one of the highest public offices of the land and who was once chief enforcer of one of the pillars of the criminal justice system, Lacson's actions prove to be most egregious and reprehensible. Like most people who find themselves on the other side of the law, he should have been man enough to submit to the jurisdiction of the authorities, face and contest the charges against him within the system, instead of becoming a fugitive.

But no, Lacson would rather live in the comfort of his hiding than suffer jail time. His lame excuse for running away is that injustice was being perpetrated against him. You don't run away from injustice, but fight it. People who had not the benefit of military training like he did, such as Ninoy Aquino, Jose Diokno and Jovito Salonga, among others, did not hide when they were being persecuted during martial law. They bravely faced the trumped up charges against them and became symbols of the struggle against oppression while in jail.

With Lacson, there is even more reason for him not to hide. As a high profile personality, how can the government possibly fool around with his rights, let alone ignore them. It is true our justice system still leaves much to be desired, but gone are the dark days of martial law when an accused person's rights mean nothing. There is a cornucopia of rights now available to an accused person, guaranteed by no less than the Constitution, which a shrewd criminal lawyer can exploit at every angle to his client's advantage. Is it a surprise that Lacson got off the hook?

Now, never mind that Lacson has been cleared by the court. Rightly or wrongly, our human fallibility being an unfortunate part of any system we create, the court has spoken and either we accept such decision or legally challenge it if still feasible. But as far as what Lacson did in trifling with the processes of the law, something should be done about it and not let is slip as yet another bad example of some bigwig acting above the law.

As a senator, Lacson should be expelled for disorderly behavior. What could be more disorderly than violating one's oath to uphold and defend the rule of law and running away from and not performing one's duties as an elected senator? Not to punish Lacson for what he did would reinforce - yet again - that those in power can easly break the law with impunity.

But then again, the value for the rule of law in our country is deplorably low, if not lacking, since we have elected into high office people who helped perpetrate a dictatorship, conspired in the imposition of martial law, convicted of rape, launched coup d’etats, etc.

Thursday, March 24, 2011

Libel and free speech

In a free society like ours, there is a constant clash between the right to free speech and the right to protect one’s reputation. And when this clash lands on the doorsteps of our courts, judges sometimes find themselves constrained to draw a fine line between the two. The most complicated of all is when the opposing rights involve a matter of public interest.

The 20-million peso libel suit of Pampanga Chamber of Commerce (Pan-Cham) President Rene Romero against veteran Pampanga journalist Bong Lacson is one such case, wherein the trier of facts and law will have to carefully distinguish between what is constitutionally protected speech and plain and simple defamation.

Libel, which is the publication of defamatory statements that damages a person’s reputation, could either be on a private or public matter. If it is on a private matter, as when it involves a private person or purely private concern, the law presumes every defamatory imputation to be malicious and, therefore, actionable.

But when the defamatory statements involve a public official or a matter of public interest, the complainant must prove malice to become successful. This is in consonance with the freedom of speech guarantee under the Constitution, which protects speech on matters of public interest.

Malice has been defined in the US case of New York Times v. Sullivan as knowledge of the falsity of one’s statements or reckless disregard as to whether or not they are true. In other words, one knows that his statements are false or entertains serious doubts as to their truthfulness, but nevertheless makes the statements.

In the landmark 1999 case of Borjal v. Court of Appeals, our own Supreme Court further defined malice as the presence of spite or ill will; when a person acts not out of response to duty, but for some unjustifiable motives or bad intentions. In that case, the Court exonerated Philippine Star columnist Art Borjal of libel upon finding that he acted out of a sense of civic duty and in the performance of his job as a newspaperman in exposing alleged anomalies in the government.

The Romero libel suit appears to involve a matter of public interest: the Most Outstanding Kapampangan Award (MOKA) – a highly publicized and much anticipated yearly event in Pampanga, wherein awards of recognition are conferred to Pampangueños who have made significant achievements in various fields of endeavor or contributions to the community. If the court finds Lacson’s article as one involving a matter of public interest, it would have to determine the presence of malice to make him liable for libel.

It should be noted that under the doctrine of constitutional defamation, the fact that the defamatory statements are false or erroneous will not necessarily give rise to liability for libel. In the words of Borjal, “[e]ven assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate . . . There must be some room for misstatement of fact as well as for misjudgment.”

It is clear then that when matters of public interest are involved, the Constitution allows greater leeway for speech. As Justice Brennan eloquently said in New York Times, "debate on public issues should be UNINHIBITED, ROBUST and WIDE OPEN, and that it may well include VEHEMENT, CAUSTIC and sometimes UNPLEASANTLY SHARP ATTACKS on the government and public officials.” (Emphasis added).

This, of course, does not mean conferment of an unbridled license to defame. If the offending words are made with malice, the speaker or writer could still be held liable. For in such case, the objective is no longer to create or invite discussion on issues of public interest, but to attack the character of another under the guise of free speech or press freedom.

Wednesday, March 2, 2011

When hateful speech is protected

Voting 8 to 1, the nine-member US Supreme Court upheld the right of the members of the Westboro Baptist Church to picket the funerals of US soldiers killed in the line of duty and hold signs displaying hateful language, such as "Thank God for Dead Soldiers," "Fags Doom Nations," and "You're Going to Hell," among others. Fred Phelps, founder of the denomination, claims that God is punishing the United States, such as the death of soldiers, for its tolerance of homosexuals.

The case, Snyder v. Phelps (March 2, 2011), emanated from a suit by Snyder, father of Marine Lance Corporal Matthew Snyder who was killed in Iraq, claiming damages for the emotional distress and invasion of privacy inflicted upon him and his family as a result of the picketing by Phelps and his fellow parishioners during Matthew's funeral. The jury awarded millions of dollars in damages to Snyder, prompting Phelps to appeal on the ground that the decision violated his First Amendment right of free speech.

There is here an apparent clash between the rights of the bereaved to privacy and respect for their dead and the right of the picketers to free speech.

The almost unanimous decision turned on a determination of whether the picketers' speech involved a matter of public concern. A speech is said to be of public concern when it relates to a matter of social, political and other concern to the community or it relates to a matter of general interest to the public. The Court found this to be present in the picketers' case as their speech relates to the conduct of the United States and its policies as a nation, particularly in relation to homosexuals.

According to the Court, speech on a matter of public concern, no matter how distasteful or controversial, occupies the highest rung in the hierachy of First Amendment rights values. If the speech - its content, manner and context - is of public concern, then it will enjoy special protection under the First Amendment.

The Court stressed that the outrageousness or inappropriate character of the speech is irrelevant in determining whether or not speech is relating to a matter of public concern. Chief Justice John Roberts, who penned the decision, eloquently put it this way:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

In upholding the picketers' right, the Court was careful to point out that the Westboro parishioners neither interfered with the funeral nor were violent. It also empahsized that the picketers were on a public place: on the streets, which have historically been associated with the exercise of free speech.

This decision clearly demonstrates the importance the US legal system accords to free speech. While the US is known to be very protective of, and highly values, its servicemen, the Court unambiguously gave greater protection to the free speech rights of a small group of rabid churchgoers as against the plea for respect and dignity of a fallen soldier's grieving family that has been offended, if not outraged, by the picketers' insentivity and hateful language.

Friday, February 25, 2011

Marcos was no hero

Nothing could be more insulting. While the nation is in the midst of preparation to celebrate the 25th anniversary of the EDSA People Power Revolution that forced Ferdinand E. Marcos out of office and ended his 20-year tyrannical rule, his son Bongbong Marcos has reopened the proposal to bury the late dictator at the Libingan ng mga Bayani, which is a burial site in honor of those who served the country and fought for freedom and democracy.

Imagine how absurd this will look: 25 years ago we ousted Marcos because of his oppressive rule, then 25 years later we buried him as a hero. This is not only an insult to our dignity as a nation, but an insult to our intelligence as well.

Lest we forget, Marcos ruled the country for two decades under the clutches of oppression and tyranny. During his presidency, there was systematic torturing, killing and disappearance of political dissidents. The number of recorded extra-judicial killings under his rule, known in the vernacular as “salvagings,” exceeds 3,000. This is way more than Chile’s Augusto Pinochet’s record of 2,115 extra-judicially killed during his reign of terror. According to University of Wisconsin history professor Alfred McCoy, in his research work Dark Legacy: Human Rights Under the Marcos Regime, 35,000 people have been tortured and 70,000 incarcerated.

On September 21, 1972, Marcos placed the entire Philippines under martial law. Immediately thereafter, opposition leaders and those critical of his administration have been incarcerated and the media was muzzled. In other words, dissent was stifled as Marcos assumed enormous governmental powers by conferring upon himself, through legal shrewdness, executive and legislative powers. Indirectly, he also controlled the judiciary by appointing to the Supreme Court people beholden to him, which gave him victories over legal challenges to the legitimacy of his actions.

Then came the plunder of the nation’s wealth. Marcos gave monopoly of vital industries to his relatives and associates (cronies) and granted them unfettered access to government loans and subsidies, a practice which came to be known as “crony capitalism.” Bribery involving government contracts became rampant and the public coffers were raided and became sources of personal use and luxuries. According to the PCGG, United Nations and Transparency International, Marcos and his cronies amassed assets amounting to $10-$15 billion US dollars!

Some foreign observers say we, the Filipinos, are forgetful as a nation. This observation seems to be true. Whatever happened to the atrocities of the Marcos regime? Where are his cohorts and family members now, who cannot claim innocence of these egregious acts? Imelda Marcos is now a congresswoman, Imee Marcos is now a governor and Bongbong Marcos is now a senator. Heck, there’s even talk of Bongbong running for the presidency!

As if these absurdity and insults are not enough, Bongbong Marcos even had the temerity to say that had his father not been forced out of power, the country would have been like Singapore now. Seriously, there are some people who say we were better off during Marcos’s time. Maybe a little fact-checking is needed to straighten out this younger Marcos and those who share this ridiculous view.

According to Penn World Table, growth in GDP per capita during the period 1951-1965 is 3.5% compared to the period 1966-1986 (during Marcos’s reign), which is a miserly 1.4%. Unemployment soared to 12.55% in 1985 from 6.30% in 1972. The country’s foreign debt ballooned to $27 billion US dollars when Marcos left office. The gap between the rich and poor widened considerably under Marcos’s rule so much so that, coupled with the atrocities of the authorities, many people became disenchanted with the government and the communist insurgency gained traction, not to mention the founding of the MNLF secessionist movement in Mindanao.

Nineteen years ago, no less than a U.S. District Court delivered justice to the hundreds of human rights victims, by finding Ferdinand E. Marcos to have engaged in systematic human rights abuses and awarded the victims $2 billion US dollars, considered the biggest personal injury award in legal history. Now, here we are talking about the possibility of burying Marcos on the heroes’ pantheon. Come on, let’s get real here folks.

Monday, February 21, 2011

People Power Revolutions

There's a wave of revolutions sweeping the middle east, but not the ideological revolutions of the past characterized by bloodshed and carnage. It is the bloodless revolution of the people: from the streets of Tunisia that has unseated President Zine El Abidine Ben Ali, the Tahrir Square of Egypt that led to the ouster of Hosni Mubarak, the streets of Bahrain where there is currently an ongoing clamor for reform, to the streets of Libya that is now threatening the long-running despotic rule of Moammar Gadhafi.

No one could relate more to what is happening in the middle east than us. Twenty five years ago, thousands of Filipinos flocked to the Epifanio Delos Santos Avenue, popularly known as EDSA, to demand the ouster of former president Ferdinand E. Marcos. As history would have it, Marcos was eventually driven out from power by the sheer voice of the people, without guns and bullets.

A few days from now we will be celebrating our preeminent people power revolution. No matter how things turned out thereafter, this event should be remembered by every Filipino, and a stark reminder to our leaders, how the people can elect into - as well as remove from - office a leader no longer worthy of the people's trust and confidence.

Years after the first EDSA, people could be heard complaining, even from among the key players themselves, that things have not changed, if not gotten worse. What these people do not understand, however, is that revolutions are only half the battle and the difficult task of nation-building should come next. Revolutions only pave the way for change. They, of course, change those in power, which is the first most important step toward instituting reform.

After the ouster of a corrupt and despotic regime, the people's revolutionary fervor must continue by seeing to it that change is in fact effected. Hopefully, the events that have unfolded in Egypt and Tunisia will be indications of this. In Egypt, even after the ouster of Mubarak the people still massed at Tahrir Square to celebrate, with a caveat to the military that they could as easily gather to protest if the change they are demanding were not effected. In Tunisia, even after the departure of Ben Ali, protests continued until the care taker government removed from office all of Mubarak's party mates.

EDSA I, as it is now called to distinguish it from the succeeding protest that unseated former president Joseph Estrada and that which sought to unseat former president, now Congresswoman Gloria Macapagal-Arroyo, should be cherished for ending Marcos's oppressive regime and restoring our democratic institutions. That many of our countrymen still suffer from abject poverty and corruption is still widespread in our civil service should not downplay the significance of that revolution.

It is in the second half of the battle - that of following through with the gains of the revolution - where we have stumbled. That responsibility should equally be shared by us and those whom we have seated in power.

Friday, February 11, 2011

What's the Ombudsman doing?

Like a tele-novela unfolding its plot everyday - the suicide of former AFP chief Angelo Reyes being the latest twist - former AFP budget officer George Rabusa's exposé of huge and illegal pay-offs to retiring generals is yet another revelation of what the public already know, but could not only prove, as the culture of corruption pervading the government. Now that a whistleblower like Rabusa, who has intimate knowledge of these illegal transactions and even claims possession of damning documentary evidence, has come out in the open, one wonders why the Ombudsman, personified by GMA ally Merceditas Gutierrez, has not yet taken actions to prosecute those involved.

The Office of the Ombudsman is an independent constitutional body tasked to investigate and prosecute corrupt practices in the government. In contrast, Congress does not have prosecutory powers that would put behind bars those guilty of official wrongdoing, and yet thus far it is the only government institution seemingly interested in going after corrupt government officials. It is true that our distinguished senators and congressmen see opportunities to grandstand in these congressional hearings and that so far no one has really been put to jail (whatever happened to the anomalous NBN-ZTE deal?), but given the feckless Ombudsman, grandstanding aside, these legislative inquiries have made the public aware of murky transactions in the government.

That the malefactors are not being made to answer for their wrongdoing is not so much the futility of these legislative inquiries as it is the ineptness of the Ombudsman in not taking an aggressive stance in prosecuting those involved. In the ongoing congressional investigations on the AFP slush fund, for example, despite the glaring revelations of massive pocketing of mind-numbing sums of money by retired armed forces chiefs, why haven't the Ombudsman initiated any investigation of its own yet? As an independent body, let alone the chief graft buster, the Ombudsman should've already summoned Rabusa, Mendoza, Villanueva, Cimatu, Ligot and all others involved in the payoffs to shed light on these serious allegations.

It is important that the evidentiary value of the testimonies of Rabusa and Mendoza be extracted as soon as possible by having them elicited in the proper forum, which is the anti-graft court or the Sandiganbayan, lest they be lost by, God forbid, some unseen forces silencing them, especially so that those they implicate are very powerful personalities. I remember then Congressman Joker Arroyo when, at the height of the impeachment trial against former President Erap Estrada, he beseeched then Chief Justice Hilario Davide to immediately take the testimony of witness Clarissa Ocampo of Equitable PCI who knew the owner of the infamous Jose Velarde account, if only to protect her from harm and extract the vital information she had. Only by testifying at the proper venue can Rabusa and Mendoza protect themselves from harm, as those who would want to silence them have the most incentive to do so before their testimony is heard in court.

Although these vital witnesses have already testified in Congress, criminal due process requires that for their testimonies to have evidentiary value, they must be given under circumstances affording the accused the opportunity to cross-examine the witnesses pursuant to the right of confrontation under the Constitution. Of course, neither the accused nor their lawyers are given such right in congressional inquiries. On the contrary, it is the legislators who act like frustrated trial lawyers who do the cross-examining instead of asking policy questions that might help them craft laws to prevent the occurrence of the misdeeds they are investigating; after all, these inquiries are properly called investigations in aid of legislations.

Perhaps P-Noy should also take a proactive stance by directing Justice Secretary De Lima order the National Bureau of Investigation (NBI), through its anti-graft task force, do an independent investigation and gather evidence for the Ombudsman. Although independent and beyond his executive control and supervision, P-Noy should make an urgent request to the Ombudsman to launch her investigation already. Only by taking such aggressive stance will the people see P-Noy's seriousness in ridding the government of corruption.

To be sure, higher personalities in the halls of power get more out of these payoffs. Whoever these people are will supply the answers to the most damning questions, but then again, if and only when the Ombudsman takes the cudgels will a true closure be made on these investigations, which have only so far satisfied the public's appetite to know rather than of justice.

The true problem, however, is how far can the Ombudsman go? Or will she ever go forward at all?

Thursday, February 10, 2011

Death as a way out: Angelo Reyes's suicide

Speculations and opinions still run high as to the reason for former armed forces chief Angelo Reyes’s suicide. Just today, former Philippine Military Academy (PMA) superintendent, retired Maj. Gen. Leopoldo Maligalig, opined that Reyes’s death was meant to protect the PMA as an institution – obviously from the attack being hurled against it due to the involvement of some of its alumni in the investigation of corruption in the armed forces.

Another former PMA superintendent, retired Maj. Gen. Rufo De Veyra, said he admired Reyes’s courage of offering his life to end the siege on the military institution. De Veyra, and Reyes’s classmates, even compared the deceased general to the Samurais of ancient Japan who perform ritualistic suicide called seppuku or hara-kiri as a way of saving their honor.

Without meaning to disrespect the dead and being callous to the plight of the deceased’s grieving family, on the contrary, General Reyes’s suicide is neither the courageous way out nor the means to protect the military institution from the assault to its reputation and dignity. By cutting short his life, General Reyes gave up any fight he could put up in defense of his innocence and in clearing the military establishment of any involvement in corruption.

As a famous line goes, death has sealed the lips of Angelo Reyes; he buried the truth to his grave. Sure, he denied – although indirectly and with lack of certitude – receiving the P50 million, but with his death how can the investigation on his involvement proceed and make the public believe his claim as against that of former AFP budget officer Lt. Col. George Rabusa, who spoke firmly and in a straightforward manner? How about the alleged several out of the country trips of his wife and that of former AFP Comptroller Ligot, wherein they were given huge sums of money from the AFP coffers? Will the spilt blood of Reyes wash them away and make the public forget?

Comparing Reyes’s death to seppuku or hara-kiri betrays the deceased’s claim of innocence. The ancient Japanese warriors, the Samurais, disembowel themselves to death to avoid capture from their enemies or to restore their honor for committing serious or grievous offenses. Obviously, Reyes was not evading capture from any enemy, unless one is to symbolically interpret his possible prosecution and imprisonment as such. How about restoring his honor? But that would mean he admitted committing a grievous act.

Reyes’s death will not – and must not, in bold letters – close the investigation to the allegations of massive corruption in the AFP. It shouldn’t be a way out as Sen. Jingoy Estrada seems to be inclined to see now, just days after fiercely questioning to the point of humiliating the deceased general.

Indeed, the suicide of Reyes is a sad and tragic event, but the likes of Generals De Veyra and Maligalig should stop putting the deceased general on a pedestal for trying to escape from a difficult situation instead of facing it squarely and putting up a good fight.

Even more, Rabusa and Trillanes should not be berated, not least of which from their fellow Cavaliers, for their zealousness in exposing corruption in the AFP. Rather than see their acts as a betrayal of the institution they came from, Rabusa and Trillanes should even be commended for by ridding the armed forces of corruption through their exposé and investigation, they are trying to restore the dignity of the military establishment. Does not the cadet honor code state: "A cadet will not lie, cheat, steal, or tolerate those who do"? By coming out and spilling the beans, is not Rabusa in fact reporting a violation of the honor code?

Cleaning the dirt – and not covering it up – by allowing the investigation to proceed to its logical conclusion is the only way to end the siege to the military establishment and restore its dignity.

Sunday, January 2, 2011

Revolutionary taxes and peace talks

Communist Party of the Philippines (CPP) founder Jose “Joma” Sison insists that it is the right of the CPP to impose and collect revolutionary taxes from businesses if it were to continue its operations, fund social programs and undertake other activities for purposes beneficial to the people. He made this assertion in the wake of government’s plan to include this as an agenda in the impending peace talks between the government and the National Democratic Front – CPP’s political arm.

Everyone knows, of course, that taxes are the lifeblood of a country, since it is these sources of revenue that fund the existence and operation of the government. And it is no secret that such pronouncement of Joma Sison is meant nothing more than a political soundbite to bolster his party’s position that it should be accorded a sort of sovereign status in dealing with the government . . . I mean the de jure or legally existing government. Let’s not forget Sison also asserts that the CPP is a revolutionary government, hence should equally be given the right to impose and collect taxes as an attribute of sovereignty.

In reality, these revolutionary taxes are meant to sustain the CPP’s insurgency operations against the government, with the goal of overthrowing and taking over the country. Wars are expensive ventures as they entail the use of arms, ammunitions, artilleries and sustenance of soldiers – which do not come free. So who is Sison kidding by saying that revolutionary taxes fund social programs in the countryside, such as land reform and projects beneficial to the people? If the CPP were to continue existing, not only must it keep its ideology intact, but it must also have sufficient logistics in waging battles against government forces.

The government, on the other hand, knows fully well – as does the CPP – that poorly equipped and starving revolutionaries do not make for a successful insurgency. So government negotiators must be dreaming in trying to secure a concession from the NDF that the CPP discontinue exacting revolutionary taxes. This is but empty posturing as well.

I may sound cynical, but to my mind these peace talks will go nowhere in achieving each party’s position: the CPP wants a country run along its ideological line – from governance to economic policies – and the government wants a country free of an insurgency problem. Honestly, how many among the well-entrenched elite who runs the country, let alone the multitude of Christian Filipinos, who are willing to embrace a new way of life and become card bearing communist party members? Will the CPP lay down its arms for less than an ideological victory?

I dare say that the ideological battle being waged by the CPP has become anachronistic in this age of democracy and modernity. The dream of a revolutionary take-over of the country’s seat of power by rebels converging in the metropolis from the countryside – like the Sandinista take-over of Nicaragua or of Cuba by Fidel Castro- has long become . . . but a dream. The only real place that Maoists can occupy or share in the halls of power is for them to go mainstream, as left wing groups do in European parliaments.

As for the government, it should focus more attention in making the people’s lives better if it were to substantially, if not completely stamp out, the insurgency – something, to be sure, it has known a long time ago, but for reasons only known to it has consistently failed to do so. I believe counter-insurgency experts call it “nation-building” – that wins people’s hearts and minds.