tag:blogger.com,1999:blog-43629369082318412112024-03-12T21:03:48.341-07:00THE RIGHT TO SPEAKNo law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.(Article III, Section 4, Philippine Constitution)Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.comBlogger109125tag:blogger.com,1999:blog-4362936908231841211.post-88115309008693995262022-09-06T14:44:00.004-07:002022-09-06T14:49:40.117-07:00DERAILING THE CHECKS AND BALANCES<p> <span style="text-align: justify;"> </span></p><p class="MsoNormal" style="text-align: justify;"><span></span></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhcNJaVIiZIC25lIyH4uiE7q_zGgnC1_s0TUsvN0GE8GrYpTm-DMLV-JfqZnaEfOUbonNuqbQe5igWO9qM9PjUN5_VtbgAElncP7lm9RSWbObvDQpVZXiRKofz5u9MftAwR0QlICCKL3JrRYtrhB_O4-zh5QFUF20BaMSDRXMF4DzV65Itqj-LVUO_Swg/s700/BBM.jpg" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="485" data-original-width="700" height="194" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhcNJaVIiZIC25lIyH4uiE7q_zGgnC1_s0TUsvN0GE8GrYpTm-DMLV-JfqZnaEfOUbonNuqbQe5igWO9qM9PjUN5_VtbgAElncP7lm9RSWbObvDQpVZXiRKofz5u9MftAwR0QlICCKL3JrRYtrhB_O4-zh5QFUF20BaMSDRXMF4DzV65Itqj-LVUO_Swg/w240-h194/BBM.jpg" width="240" /></a></div><div style="text-align: justify;">Early on in his term, President
Bongbong Marcos is already antagonizing a co-equal branch of government, the
legislature, by ordering his Executive Secretary Vic Dominguez to snub the
invitation to attend a Senate inquiry on the sugar importation mess.</div><o:p></o:p><p></p>
<p class="MsoNormal" style="text-align: justify;">This does not bode well for a vibrant democratic system. Under our scheme of
government, each of the three branches (executive, legislative and judicial)
has the additional and important function of checking and balancing the
exercise of powers by the other in what is known as “checks and balances.” <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The
Constitution enumerates the several ways each branch exercises this function.
For example, the president as head of the executive branch has the power to veto
any law passed by Congress; the legislative branch, through the Senate, must
ratify a treaty negotiated and signed by the president with another country
before it becomes binding; the judicial branch, particularly the Supreme Court,
has the power to invalidate the actions of both the executive and legislative branches
by declaring them unlawful.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The
conduct of legislative inquiries is one of the powers of Congress to aid it in
crafting legislations. Legislative inquiries help Congress pass new laws or
amend existing ones to address a particular problem, such as the current sugar
shortage. To be sure, this function has been abused several times by scheming
legislators to drag before them and publicly flail public officials they deride
or to grandstand on a particular issue without the least intention of crafting
a law from the exercise.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Given
the importance of the sugar shortage crisis, however, the executive must
cooperate with Congress in getting into the bottom of the problem so that a
solution can be found. Bongbong’s directive to Secretary Dominguez not to attend
the Senate inquiry is an alarming indication of his disrespect to a co-equal
branch of government, which forebodes an authoritarian tendency on his part.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">We
all know what happened under Ferdinand Marcos, Sr.’s rule when he started
acting as the executive and legislative at the same time and controlled the
judiciary. Hopefully Marcos, Jr. is not trying to follow this playbook in snubbing
the Senate. <o:p></o:p></p>Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-11893645685108676182018-03-08T14:30:00.001-08:002018-03-09T10:06:25.736-08:00THE SUPREME COURT MUST UPHOLD THE RULE OF LAW<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEirPOJpzSz3cgRXnenW0ZBy0d4k9pwkWmrIfM-BZ6W0kzBS1NWb9mwjPtV6XQY0_zwOOWdNPONlrPiSmvUVTkMLeWzYLS4uY87KBY9YZagTdAzRhw74p0PWgWUSGVzmHT_6fwiFazTnyNtw/s1600/Supreme+Court.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="209" data-original-width="574" height="232" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEirPOJpzSz3cgRXnenW0ZBy0d4k9pwkWmrIfM-BZ6W0kzBS1NWb9mwjPtV6XQY0_zwOOWdNPONlrPiSmvUVTkMLeWzYLS4uY87KBY9YZagTdAzRhw74p0PWgWUSGVzmHT_6fwiFazTnyNtw/s640/Supreme+Court.jpg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Members of the Supreme Court.</td></tr>
</tbody></table>
<i style="text-align: justify;"><br /></i>
<i style="text-align: justify;">We are not final because we are infallible, but we are infallible
only because we are final</i><span style="text-align: justify;">. These astute words from U.S. Supreme Court Justice
Robert Jackson will once again find relevance if the Philippine Supreme Court
were to grant the </span><i style="text-align: justify;">quo warranto</i><span style="text-align: justify;"> petition
of Solicitor General Jose Calida to unseat Supreme Court Chief Justice Lourdes
Sereno.</span><br />
<div class="MsoNormal" style="text-align: justify;">
<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
While it is beyond doubt – well, until now that is – that
the chief justice can only be removed by impeachment under the Constitution, majority
of the members of the Supreme Court, who have shown antagonism towards the
Chief Justice and seeming fealty to the current administration, may hand down yet
another controversial decision that will assert more the finality of the Court rather than its infallibility as interpreter of the law of the land. <span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Although it was careful to qualify its order by the phrase “without
giving due course to the petition,” the mere fact that the Court entertained
Calida’s petition by requiring the Chief Justice to comment rather than dismiss
it outright gives one the chills of where this Court can go.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Of course, this will not be the first time that the Court
will depart from its traditional role of guardian to the Constitution if ever
it decides to skirt the impeachment process and unceremoniously removes the
Chief Justice from office. As the final voice on what the law is, the Court has
on several occasions handed down decisions that were seen more as serving
political ends rather than fidelity to the meaning of the law. <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
That the Supreme Court ultimately decides along political
considerations in political cases is expected, for after all its members are
appointed by the highest political entity of the government, the president. Inevitably,
the majority that don the same political color declare what the law is consistent
with the interests of their political patron.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
But to overturn a well-established rule, created by no less
than the Constitution, that the officials enumerated under Article XI (2) of
the Constitution – which includes members of the Supreme Court – may only be
removed from office by impeachment is a flagrant flouting of the rule of law. <span style="mso-spacerun: yes;"> </span>Notably, the Supreme Court itself has
consistently held in <i style="mso-bidi-font-style: normal;">Cuenco v. Fernan, In
re Gonzales, Jarque v. Desierto, </i>and <i style="mso-bidi-font-style: normal;">Marcoleta
v. Borra</i> that the impeachable officials under Article XI (2) can only be
removed from office via the impeachment route and this cannot be circumvented
by resorting to other means of removal.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
In <span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Cuenco</i>, for example, the disbarment case
brought against then Supreme Court Justice Marcelo Fernan (who later became chief
justice) was dismissed for being an attempt to remove an impeachable official via
another route not allowed by the Constitution. The Court noted that since one
can only become a member of the Supreme Court by being an attorney, to disbar a
member of the Court would be equivalent to removing him from office which
cannot be done because he can only be removed by impeachment.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
The members of the Supreme Court must remain steadfast and
resist any importuning albeit powerful if the Court were to remain guardian of
the Constitution and protector of the rule of law. Giving due course to Calida’s
petition is a first step toward the crumbling of the pillars on the edifice of the
Court.<o:p></o:p></div>
<div style="text-align: justify;">
<br /></div>
Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-6805421838070854882017-11-10T10:36:00.000-08:002018-03-09T11:09:50.037-08:00IS NOYNOY LIABLE FOR THE MAMASAPANO MASSACRE?<br />
<div class="MsoNormal" style="text-align: justify;">
One of the hardest things about being a president is owning
up or taking the blame every time a high profile military operation goes south.<span style="mso-spacerun: yes;"> </span>Imagine if Oplan Geronimo, the U.S. military
operation that led to the killing of Osama Bin Laden were a failure?<span style="mso-spacerun: yes;"> President </span>Obama would have taken tons of criticisms
from his political opponents.<span style="mso-spacerun: yes;"> </span>Remember
the military operation to rescue hostages from the U.S. Embassy in Iran that was
prematurely aborted when the helicopters carrying U.S. commandos crashed?<span style="mso-spacerun: yes;"> </span>It cost Jimmy Carter’s reelection bid
against Ronald Reagan.<o:p></o:p></div>
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-Igv6KziCtypfLJ7d8aNRuX2Jh-iXg4LZpmmbgWTG3hhyphenhyphenO54_XPTB3I30ivcdD9QqN-pnBHXJc1k19vv3Vl0sl8U_UhZjGQ0NG0t9VKHnYCc_8f7fYwZ7cIuWy29SmvLAYPJhjg9_gmra/s1600/mamasapano-maguindanao-saf.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="427" data-original-width="370" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEg-Igv6KziCtypfLJ7d8aNRuX2Jh-iXg4LZpmmbgWTG3hhyphenhyphenO54_XPTB3I30ivcdD9QqN-pnBHXJc1k19vv3Vl0sl8U_UhZjGQ0NG0t9VKHnYCc_8f7fYwZ7cIuWy29SmvLAYPJhjg9_gmra/s320/mamasapano-maguindanao-saf.jpg" width="276" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">SAF Policemen carry their fallen comrades.</td></tr>
</tbody></table>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
And so it is with Mamasapano, which resulted in the
slaughter of 44 police commandos.<span style="mso-spacerun: yes;"> </span>Former
President Noynoy Aquino took the heat for this tragic incident and until now
his political opponents are using it to discredit his administration, not least
among them is current President Rodrigo Duterte.<span style="mso-spacerun: yes;"> </span>But while it is a given that presidents must
own up or take full responsibility for every failed military or police
operation, fairness demands that culpability must be clearly shown.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
As in every military or police operation, the
decision-making process that goes into a mission must be understood as being
divided into the policy and operational levels. The policy level is the domain
of the President, which has something to do with the performance of his duties
as the country’s chief executive that calls for the exercise of his discretion
in balancing the imperatives of national security and political implications of
his actions.<span style="mso-spacerun: yes;"> </span>On the operational level,
this is the domain of the military or police advisers and personnel who will carry out the
mission.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
When Oplan Wolverine, the name of the mission to capture wanted
terrorist bomb-maker Sulkifli bin Hir (also known as Marwan), was planned,
there was an ongoing peace talks and ceasefire between the government and
MILF-BIFF forces.<span style="mso-spacerun: yes;"> </span>Intel reports point to
Mamasapano, an area controlled by MILF-BIFF, as the hiding place of
Marwan.<span style="mso-spacerun: yes;"> </span>This calls for Pnoy’s discretion
on whether to proceed with the operation without informing the MILF-BIFF, which
would be in breach of the terms of the ceasefire, or coordinate with them at
the risk of forewarning the elusive Marwan of the impending operation to capture him. <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
The other option is for President Aquino to wait for another opportunity
to avoid jeopardizing the peace process with the Moro rebels.<span style="mso-spacerun: yes;"> </span>This would, however, clash with his duty to
protect the citizens from harm by promptly apprehending and neutralizing
terrorists.<span style="mso-spacerun: yes;"> </span>Letting go of the window of
opportunity they got in catching Marwan may have devastating consequences as
the latter and his cohorts may soon carry out bombings that could kill and maim
a lot of people.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Here was a real dilemma facing President Aquino.<span style="mso-spacerun: yes;"> </span>But as president, he must make a decision and
whatever decision he makes he will have to own up and live to it.<span style="mso-spacerun: yes;"> </span>This is the policy level of the
decision-making process and if President Aquino were to be made culpable, his actions
should be gauged by the decision he made at this level and the soundness of the
reasons for it.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Of course, we now know that President Aquino greenlighted the operation
without coordination with the MILF-BIFF.<span style="mso-spacerun: yes;">
</span>There was no question Marwan must be captured or neutralized and there
was probably an urgency to do so, as there is no telling of the carnage he may
cause unless sooner captured or neutralized.<span style="mso-spacerun: yes;">
</span>It was also probably worth the risk of jeopardizing the peace process
with the MILF-BIFF as the fact that Marwan, a high value terrorist target, is
in hiding in their lair could be a sign of their double dealing with the
government.<span style="mso-spacerun: yes;"> </span>After all, negotiating a
truce with the Moro rebels is discretionary on the government, but capturing
and neutralizing terrorists is a duty or obligation in protecting the citizens.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Another aspect of the policy level of decision-making
process is for the President to ensure that the operation would have a high
probability of success and minimal risks to the troops.<span style="mso-spacerun: yes;"> </span>At the very minimum, he must see to it that
the plan is feasible and would very likely succeed – as no one can guarantee
the success of any military or police operation -<span style="mso-spacerun: yes;"> </span>and that there are contingency measures or
back up plans to minimize the risks of harm to the operatives who will carry
out the mission.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
The above factors are of course dependent on the inputs of
his military or police advisers.<span style="mso-spacerun: yes;"> </span>The President, even one with a military experience, is not expected to know the
intricacies of military or police strategies and tactics.<span style="mso-spacerun: yes;"> </span>That is why he has experts who will advise
him on the matter.<span style="mso-spacerun: yes;"> </span>He relies on the assessments
and recommendations of his military and police advisers.<span style="mso-spacerun: yes;"> </span>Which unit will carry out the mission, how
many men are needed, what type of weaponries, the timing, etc., are not within
the competence of the President.<span style="mso-spacerun: yes;"> </span>These
are the nitty-gritties of military or police planning and operation which only
the President’s military or police generals can decide.<span style="mso-spacerun: yes;"> </span>The President need only be satisfied and assured
of the high probability of success of the mission with minimum casualties. <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br />
In the U.S. mission to capture Osama Bin Laden, then U.S.
President Obama was faced with the dilemma of intruding into the territory of
Pakistan and not having 100% identification of Bin Laden.<span style="mso-spacerun: yes;"> </span>Intel reports cannot provide absolute
certainty on the identity of the man found in a secured house in Abbottabad,
Pakistan as that of being Bin Laden.<span style="mso-spacerun: yes;"> </span>The
decision to proceed with the mission at the risk of a diplomatic war with
Pakistan and without 100% identification of Bin Laden was Obama’s decision
alone as the chief executive, while the decision to have the U.S. Navy’s SEAL
Team Six carry out the operation, instead of the more secretive and equally
highly trained counter-terrorist unit Delta Force, and the manner of carrying
out the mission were his military advisers and commanders’ decision.<span style="mso-spacerun: yes;"> </span>The former is the policy-level while the
latter is the operational level.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
At the operational level of the decision-making process in
Mamasapano is Director Getulio Napenas, the head of the Police SAF, and then
suspended Chief of the Philippine National Police (Chief PNP) Director General
Alan Purisima.<span style="mso-spacerun: yes;"> </span>Again, it is their call,
especially SAF Commander Napenas, as to which unit will carry out the mission,
the type of weaponries to use, the number of personnel needed, the timing of the
operation and the type of back-up or contingency plans to adopt.<span style="mso-spacerun: yes;"> </span>This is their realm of competence upon which
the President can only rely.<span style="mso-spacerun: yes;"> </span>The actual
field commanders in the operation are the ones who will also call the shots as
they lead their men during the course of the mission.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
So, what exactly went wrong with the operation?<span style="mso-spacerun: yes;"> </span>Based on reports and investigations, the
Seaborne Unit of the SAF were overpowered by the huge BIFF forces nearby, who
scrambled into action when they heard gunfires during Marwan’s
apprehension.<span style="mso-spacerun: yes;"> </span>It would seem, therefore,
that the back-up forces of the SAF’s Seaborne operators were not sufficient in
number and possibly, firepower, to be safely extricated.<span style="mso-spacerun: yes;"> </span>This is a clear lapse in operational
planning.<span style="mso-spacerun: yes;"> </span>Napenas should have known that
since Mamasapano is the lair or territory of the MILF-BIFF, his men would run
the risk of a heavy encounter with nearby MILF-BIFF forces, especially so that
they decided not to coordinate with the Moro rebels for fear of forewarning
Marwan.<span style="mso-spacerun: yes;"> </span>He should have readied a
stronger back-up force, such as seeking the help of the Army, which is
stationed not far away from the incident, who could provide an imposing
presence and deter the MILF-BFF forces from further engaging the Seaborne
operators.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Since President Aquino said he directed Napenas to coordinate with the
Army before and <i style="mso-bidi-font-style: normal;">not</i> during or at the
start of the operation which they call “time on target,” Napenas clearly
committed gross insubordination resulting in the unnecessary deaths of his
men.<span style="mso-spacerun: yes;"> </span>If President Aquino commanded Napenas not to
coordinate with or get help from the Army, it would have been a different
story.<span style="mso-spacerun: yes;"> </span>But Napenas went on his own
and decided to do things his way, which proved fatal to 44 police
commandos.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
There were also stories of the SAF troopers not being able
to provide coordinates to the Army that could’ve helped the latter provide
artillery support.<span style="mso-spacerun: yes;"> </span>Assuming this to be
true, should this be the fault of the President?<span style="mso-spacerun: yes;"> </span>Of course, not! Again, this is purely operational
matter.<span style="mso-spacerun: yes;"> </span>The claim that it should not have been the police who
carried out the mission because the police is trained only in urban and law
enforcement operations is erroneous and shows lack of understanding of the
nature of the operation. First, the
mission to capture Marwan is a law enforcement operation to serve a warrant for
the arrest of Marwan and his cohorts.
Second, the SAF is not an ordinary police unit. It has special operational capabilities not
possessed by regular police units, which involves counter-terrorism in urban
and jungle areas. In fact, one of the
mandatory trainings every SAF operator has to undergo is the Scout Ranger
training course. Scout Ranger training
includes jungle survival and operations.
Finally, the Seaborne Unit – the one that actually apprehended Marwan –
is a special unit of the SAF; in other words, the best of the best in the
police, which is highly skilled in special urban and jungle warfare
operations. </div>
<div class="MsoNormal" style="text-align: justify;">
<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
As to the involvement of suspended Chief PNP Purisima and
keeping the acting chief in the dark, suffice it to say that it is the President’s prerogatives as to who to involve in a sensitive operation.<span style="mso-spacerun: yes;"> </span>In addition, Purisima has been handling the
Marwan case for a long time and is familiar with it so his expertise on the
matter came handy.<span style="mso-spacerun: yes;"> </span>The fact that he is
suspended has nothing to do with the operation, but on a different matter.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
In sum, President Aquino cannot be held culpable for pressing forward
with Oplan Wolverine despite the fiasco that attended it later, for the tragedy
resulted not because he decided to greenlight the operation, but because of
operational lapses that are clearly within the domain of the military
commanders involved in the supervision and execution of the mission.<span style="mso-spacerun: yes;"> </span>As president, Aquino was duty-bound to promptly
arrest and neutralize terrorists who pose clear and present danger to the
people.<span style="mso-spacerun: yes;"> </span>That his decision could’ve
jeopardized the peace process with the Moro rebels by not coordinating the
mission with them may have political repercussions, but certainly not legal
culpability for as president he has the discretion whether or not to proceed
with the peace process.<span style="mso-spacerun: yes;"> </span>Besides, the
objective of the mission was accomplished, which was to apprehend or neutralize
Marwan and his cohorts.<span style="mso-spacerun: yes;"> </span>The 44 SAF
troopers did not die in vain.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
If it is shown that President Aquino prevented or halted efforts to
rescue the SAF troopers when he learned of their dilemma, such as by ordering
the Army to stand down, then we can undoubtedly say he should be held liable,
even criminally.<span style="mso-spacerun: yes;"> </span>But he in fact even
ordered that all manpower and resources be mustered to help the besieged
troopers.</div>
Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-32997521061266921002017-08-22T11:24:00.000-07:002018-03-09T11:26:32.168-08:00NOYNOY IS WRONG TO SAY THERE ARE NO EJKs<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQWuZX-uPqGBWyp0kvsWR_pAX7biuJJmj3nO2uknghbNaDcUxmp7GySbu7PPa6LIG9-3gRP9SpkC16rIggdBNB_YIakOt1UQu9eMITpsu2PxKKBLvfP6ynF-o2IF0fvV8p0AXW68eyRAoN/s1600/noynoy_aquino3.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="317" data-original-width="275" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgQWuZX-uPqGBWyp0kvsWR_pAX7biuJJmj3nO2uknghbNaDcUxmp7GySbu7PPa6LIG9-3gRP9SpkC16rIggdBNB_YIakOt1UQu9eMITpsu2PxKKBLvfP6ynF-o2IF0fvV8p0AXW68eyRAoN/s1600/noynoy_aquino3.jpg" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Former President Noynoy Aquino.</td></tr>
</tbody></table>
<br />
<div class="MsoNormal" style="text-align: justify;">
On the occasion of Sen. Ninoy
Aquino’s 34<sup>th</sup> death anniversary, the son, former President Noynoy
Aquino – in an answer to questions regarding the spate of killings taking place
under Duterte’s drug war – said that there are no extrajudicial killings (EJKs)
taking place in the country because there is no judicial killing. No judicial killings, ergo
no extrajudicial killings goes his reasoning. He added that these killings were simply
murders.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
President Aquino’s apparent logic is that
in order for these killings to be classified as EJKs, there must also be
killings being authorized by the courts under a death penalty law. The logic of opposites: night and day, black and white, legal and illegal, judicial
and extrajudicial. The logic is, however, over-simplistic and disregards the
essential elements of what define the term extrajudicial killings.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
If indeed EJKs can only exist if
there is judicial killing, why then did the Supreme Court promulgate the rules
on the <i>Writ of Amparo</i> on October 24,
2007 with the objective of addressing the problem of extrajudicial killings and
enforced disappearances? Thus, in <i>Balao,
et la., v. Macapagal-Arroyo, et al, </i>G.R. No. 186050, 186059 (December 13,
2011), the Supreme Court pronounced the following:<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 8.0pt; margin-left: .5in; margin-right: .5in; margin-top: 0in; text-align: justify;">
The <u>Rule
on the Writ of <i>Amparo</i></u> was promulgated on October 24, 2007
amidst <b><i>rising incidence of extralegal killings</i></b> and enforced
disappearances. It was formulated in the exercise of this Court’s expanded
rule-making power for the protection and enforcement of constitutional rights
enshrined in the 1987 Constitution, albeit limited to these two
situations. (Emphasis added).<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
In the earlier case of <i>In re Rodriguez v. Macapagal-Arroyo</i>, GR
Nos. 191805, 193160 (Nov. 15, 2011), the Supreme Court said that the <i>Writ of Amparo</i> “serves both preventive
and curative roles in <b><i>addressing the problem of extrajudicial
killings</i></b> and enforced disappearances. (emphasis added)” <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
It is noteworthy that the death
penalty was abolished by Congress under RA 9346 (An Act Prohibiting the
Imposition of the Death Penalty in the Philippines) in June 2006 and has not
since then been re-imposed. Therefore, this recognition by no less than the
Supreme Court of the existence of extrajudicial killings despite the absence of
the death penalty in our statute books clearly contradicts President Aquino’s notion that
for killings to be categorized as EJKs the death penalty must be in existence
that will authorize the courts to carry out judicial killings. <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
For added context, the <i>Writ of Amparo </i>is a legal remedy whereby
an individual whose right to life, liberty and security is violated or
threatened can ask protective orders from the courts. In a report by the United
Nations, there were 903 documented cases of extrajudicial killings from January
2001 to March 2008. In response, the Supreme Court created the Melo Commission
to promulgate the <i>Amparo</i> rules.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Going now to the definition of
EJK, the Supreme Court in the <i>Balao </i>case
defined EJK as “killings committed without due process of law, i.e., without
legal safeguards or judicial proceedings.” Thus, the constitutive elements of
EJK are the following: (1) there was a killing; and (2) the killing was
committed without due process of law. This definition is similar to the
definition given under the United States Torture Victim Protection Act of 1991
which defines EJK under Section 3(a) thereof as the “deliberated killing not
authorized by a previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as indispensable by
civilized peoples. . . .” <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Nowhere under both definitions
can be found the existence of judicial killing as an indispensable element of
EJK. Clearly the existence of EJK is not premised on the existence of judicial
killing. Besides, if we follow President Aquino’s
logic, it can lead to ridiculous conclusions. For example, one can argue that
since there is no legal killing (because the death penalty has been abolished),
there can be no illegal killing; since there is no legal prostitution in the
Philippines there can be no illegal prostitution. <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Notably, the phrase “without due
process of law” under the second element of the definition indicates that the
killing was carried out by agents of the State or State actors, such as the
police or military. In legal principles
whenever due process is at issue it involves the participation of the State or
the government under the concept of "State Action." In other words, the killing is
carried out by law enforcers or the military without affording the victim his or
her rights to due process of law. A
killing is carried out without legal authority when there is no law authorizing
it (no death penalty) or the legal processes required to carry out the
execution (i.e., charges are filed in court, evidence pro and con is presented,
there is finding of guilt by the court) are not observed. <o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
Although there is a growing trend
to not only limit EJKs to State actors, just the same this tendency still
recognizes the participation of the State even if the killings were carried out
by private individuals to categorize them as EJKs. State participation usually takes the form of
providing encouragement or support or organizing private individuals to carry
out the killings. Private armies and
death squads come to mind in these cases.<o:p></o:p></div>
<div class="MsoNormal" style="text-align: justify;">
</div>
<div class="MsoNormal" style="text-align: justify;">
<br /></div>
<div class="MsoNormal" style="text-align: justify;">
By taking the position that the
spate of killings taking place right now, such as the execution of Kian Lloyd
Delos Santos, are not EJKs but simply murders, President Aquino has committed the mistake
of unwittignly downgrading the seriousness of the problem involving these killings. <o:p></o:p></div>
Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-87316180724575101702016-08-24T10:28:00.000-07:002018-03-09T10:30:46.659-08:00FALSE EQUIVALENCY<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhe8cHRbNWcXPV2PrFSDIeWlcmBfrsaotWGtrf4AVr9n0gNuWXh398F0q_PY4h5BNa6wHCcqnoeUVMd2CtTFnxF5D29Ajg1xW7zDR43o_De5R9zufgiX04PGOf4-Oi18lILI0kOtvtR4HVF/s1600/Kian+Delos+Santos.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" data-original-height="633" data-original-width="950" height="263" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhe8cHRbNWcXPV2PrFSDIeWlcmBfrsaotWGtrf4AVr9n0gNuWXh398F0q_PY4h5BNa6wHCcqnoeUVMd2CtTFnxF5D29Ajg1xW7zDR43o_De5R9zufgiX04PGOf4-Oi18lILI0kOtvtR4HVF/s400/Kian+Delos+Santos.jpg" width="400" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Lifeless body of Kian Delos Santos being carried by police.</td></tr>
</tbody></table>
<br />
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;">Pictures of
people who have been raped or killed by alleged drug addicts with captions
asking why there was no rally held for them by the same people who held rallies
for Kian Lloyd Delos Santos, the 17-year old killed by policemen under
questionable and suspicious circumstances, are being circulated on social
media. The question of why anti-Duterte lawmakers, like Trillanes and
Hontiveros, have not visited these victims’ wake is also being asked. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;">The problem
with this argument is that while the case of these crime victims is the same as
that of Kian – all of them were brutally killed – the similarity ends there.
The former were killed or victimized by criminals who may have been
drug-crazed, but Kian was killed by the police. Let us pause and absorb this
well: <i style="mso-bidi-font-style: normal;">killed by the police</i> (with
emphasis). The police are supposed to be the guardians and protectors of the
people; they are supposed to enforce the rule of law; preserve peace and order;
stop and prevent crimes; apprehend and neutralize criminals. The police are
supposed to keep and make us feel safe in their presence, not sow terror on the
citizenry by killing innocent civilians or disregarding the rule of law.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;">Obviously,
we do not expect the same protection or safety from criminals, whether high on
drugs or not. We know their object is to inflict harm and are up to no good. So,
when these deranged beings go killing spree or commit heinous crimes, we as a
society are shocked by the depravity of their crimes but we accept as a sad
fact of life that there are such evil men ever lurking in society. And we look
upon the authorities – the police – to protect us from these kinds of people. <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;">But what do
we do when the police themselves become the very evil against which we seek protection?
When the police become the very evil that threaten our lives and limbs, we find
ourselves in graver danger because unlike criminals the police freely roam our
streets under the badge of authority. They can go about their nefarious ways,
armed by the state, unhampered by anyone. Who will we call for help or
protection when the very people who are supposed to provide it are the very
cause of our distress? <o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;">But now that
this matter has been brought to light, let us call for justice for every victim
of crime, especially victims of heinous crimes. Let us demand from the
government and the police to protect us against criminals; let us demand from
government that those responsible be prosecuted.<o:p></o:p></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;"><br /></span></div>
<div class="MsoNormal" style="text-align: justify;">
<span style="font-size: 12.0pt; line-height: 107%;">If we cannot
see these very clear distinctions, we are truly lost and are driven only by our
political persuasions. Victims of common crimes deserve our utmost sympathy and
the criminals our most vehement condemnation.<span style="mso-spacerun: yes;">
</span>But when the police, whom we have armed and whose salaries we foot
through the taxes we pay so that they can make our streets safe and protect us
against bad elements of society, become the very threats to our safety and
well-being, the line must be drawn and we must become vigilant and resist such
evil if we are to survive.<span style="mso-spacerun: yes;"> </span>And when
there is no one to whom we can turn to for help, we have only ourselves to
protect us. </span></div>
Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-72273206907962314762014-02-24T20:11:00.000-08:002014-02-24T20:11:19.874-08:00We still speak not with bated breath
<br />
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjLGY3MwGGV1xvYFslattJSTYhC4aMCo9bmgyNhNPL1AofXkWp9InD-7yPD9CGCG43xUP_gpWxex3oUPxYwPq_VMCAgDzIhZCLy7GdaP7qn2P6Tonu0SrJ3XXfitJXOCcbuosF7aXn9HtrR/s1600/Online+Speech.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjLGY3MwGGV1xvYFslattJSTYhC4aMCo9bmgyNhNPL1AofXkWp9InD-7yPD9CGCG43xUP_gpWxex3oUPxYwPq_VMCAgDzIhZCLy7GdaP7qn2P6Tonu0SrJ3XXfitJXOCcbuosF7aXn9HtrR/s1600/Online+Speech.jpg" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Source: dailyopinioninternational.com</td></tr>
</tbody></table>
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
When the Supreme Court decided to
uphold the anti-cybercrime law, netizens were fast to decry the decision as an
erosion of our fundamental right to free speech and paving the way for online
martial rule.<span style="mso-spacerun: yes;"> </span>This issue assumes much
relevance at a time when we celebrate the 28<sup>th</sup> year anniversary of
the EDSA People Power Revolution that toppled the Marcos dictatorship. </div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
Those who lived through the
Martial Law years know that they could only criticize Marcos and the government
in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search
and Seizure Order) by the state’s security forces.<span style="mso-spacerun: yes;"> </span>This could mean being incarcerated without
charges or worse, joining the ranks of the <i style="mso-bidi-font-style: normal;">desaparecidos
</i>or those who disappeared and never to be heard from again.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
The 1986 People Power revolution
ended this garrison state and with it came the restoration of our cherished
freedoms, particularly our freedom of speech and expression which is now
enshrined in Article 3, Section 4 of the Constitution.<span style="mso-spacerun: yes;"> </span>It prohibits Congress from making any law
abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress of
grievances.<span style="mso-spacerun: yes;"> </span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
The advent of modern technology
even expanded the exercise of this freedom by providing us the medium of the
cyberspace where we can vent our frustrations with the government and its
officials or cast our criticisms and disgusts.<span style="mso-spacerun: yes;">
</span>Imagine if tweeter or facebook were already existing during the time of
Marcos. The authorities would probably be spending countless hours tracking
emails, tweets and status updates adverse to Marcos and his cohorts.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
One only needs to read the
papers, listen to the radio, watch the TV, surf the internet, browse facebook
or read tweets to see that our freedom of speech is still very much intact –
and we no longer have to criticize the government in bated breath.<span style="mso-spacerun: yes;"> </span>28 years later we can still speak freely
against the government and our public officials without fear of punishment.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
And what about the
anti-cybercrime law that punishes online libel?<span style="mso-spacerun: yes;">
</span>Did it not remove or downgrade our free speech right with the connivance
of the Supreme Court?<span style="mso-spacerun: yes;"> </span>There is so much
misinformation circulating the web about this.<span style="mso-spacerun: yes;">
</span>Freedom of speech is not absolute.<span style="mso-spacerun: yes;">
</span>The state can legitimately prohibit speech that is libelous, obscene,
incites lawlessness, or is in the nature of fighting words (those that by their
very utterance inflict injury, incite lawlessness, hatred or violence).<span style="mso-spacerun: yes;"> </span>These are unprotected speeches that the state
may validly regulate.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
Libel, which is the utterance of
defamatory words that destroy or injure another’s character or reputation, has
always been punished even before the enactment of the anti-cybercrime law.<span style="mso-spacerun: yes;"> </span>What the anti-cybercrime law merely did is
recognize the internet as a means by which libel may be committed or as a
medium where defamatory words can be published.<span style="mso-spacerun: yes;">
</span>If a statement is libelous when made on a newspaper, radio or television
or when uttered orally, it does not become less libelous when made on the
internet.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
The anti-cybercrime law does not
punish protected speech.<span style="mso-spacerun: yes;"> </span>By importing
the definition of libel under the Revised Penal Code, the jurisprudence
outlining the acts punishable when the defamatory remarks are made against a
private individual and when made against a public official or figure are also
imported.<span style="mso-spacerun: yes;"> </span>Thus, speech critical of a
public official or figure, even if defamatory, remains protected if made
without malice and, therefore, cannot be punished as libel.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt; text-align: justify;">
Those who say that the
anti-cybercrime law will stifle free speech are clearly making false and
misleading statements.<span style="mso-spacerun: yes;"> </span>The criticism of
official conduct, condemnation of malfeasance in public office or denunciation of
any wrongdoing by our public officials<span style="mso-spacerun: yes;">
</span>remain part of our protected speech and nowhere under the
anti-cybercrime law, or in the Supreme Court’s decision, has this been made a
punishable act.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></div>
Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com1tag:blogger.com,1999:blog-4362936908231841211.post-92018013896748091572013-12-23T13:11:00.000-08:002013-12-23T13:28:55.901-08:00The Magic that is Christmas<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEixuEbacbp0J-gIbxeJwdFdG_uic9t1_HcBLQB6Spo3jH9dQu7Q0RKx6sTBZT6zrjcCs3uwUnXjpsJoX7j5-L2yzpKFL6ndNLxOwBDsX1winFCfq9fJwB7j1mskVmbZ-T_Z5CrnzbfOYTF4/s1600/star-near-bethlehem-israel2.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEixuEbacbp0J-gIbxeJwdFdG_uic9t1_HcBLQB6Spo3jH9dQu7Q0RKx6sTBZT6zrjcCs3uwUnXjpsJoX7j5-L2yzpKFL6ndNLxOwBDsX1winFCfq9fJwB7j1mskVmbZ-T_Z5CrnzbfOYTF4/s320/star-near-bethlehem-israel2.jpg" width="239" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">The Star of Bethlehem .</td></tr>
</tbody></table>
<span style="font-family: "Times New Roman"; font-size: 12pt; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-US;">In a recent Pew Survey in the </span><st1:country-region w:st="on"><st1:place w:st="on">U.S.</st1:place></st1:country-region>, it found that only about half
of those who celebrate Christmas see it as a religious celebration while the
rest see it as a cultural non-religious event.<span style="mso-spacerun: yes;">
</span>But whatever belief one has about Christmas, the fact of the matter is
that Christmas is a celebration that is based and rooted on the birth of Jesus
Christ; in fact, the name with which this globally celebrated event is known is
derived from the name of Christ himself.<span style="mso-spacerun: yes;">
</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
Every time Christmas comes, I am in awe of the far-reaching
influence and legacy that this humble carpenter from <st1:city w:st="on"><st1:place w:st="on">Nazareth</st1:place></st1:city> has left in this world.<span style="mso-spacerun: yes;"> </span>His ministry is brief (a little over three
years) and confined in and around the area of his birthplace (biblical accounts
show that he never traveled more than 200 miles from Bethlehem), and yet Jesus left
an enduring and worldwide teaching of love, peace, generosity and humility that
no being who has set foot on the face of the earth has ever done.<span style="mso-spacerun: yes;"> </span>He is truly the savior of the world!</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
Commercialism aside, what with all the merchandise being
pedaled to us by merchants, there is no other season of the year where
gift-giving is so pervasive and the air is filled with the ambience of kindness
and forgiveness.<span style="mso-spacerun: yes;"> </span>It is this time of the
year where people are more tolerant and forgiving, letting go of offenses
against them with the usual remark, “forget about it, it’s Christmas anyway”;<span style="mso-spacerun: yes;"> </span>it is this time of the year where goodwill
among men pervades and you see people with happy countenance everywhere.</div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
There is no other event where even fighting men dropped
their rifles and muted their canons and crossed enemy lines to engage in
Christmas greetings and songs and even exchanged gifts, as was done by German
and British soldiers around Christmas time during World War I.<span style="mso-spacerun: yes;"> </span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
Whether you are a believer or not, the song is right. Christmas
is “the most wonderful time of the year.” </div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 0pt;">
<em><strong>Merry Christmas to you all and let us keep the spirit of kindness
and giving alive!<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></strong></em></div>
<br />
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Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-87612948564127062872013-05-19T13:36:00.000-07:002013-05-19T13:36:27.596-07:00The Thin-Skinned Brillantes<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh9wDEv2B3-QOYxpwn7Ayhebjh6lktEAaWpX4lrnJXzCn6jIC8Q7pU_Ij5w4pps0XTE6ZPbLUZ_awafClrou_UXjgOMR3NwdC-JzdZVpQbmEsKKW5eL0M1pHOVZfEm57r8jXJiH1EWtCduK/s1600/Brillantes.jpg" imageanchor="1" style="clear: left; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="183" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh9wDEv2B3-QOYxpwn7Ayhebjh6lktEAaWpX4lrnJXzCn6jIC8Q7pU_Ij5w4pps0XTE6ZPbLUZ_awafClrou_UXjgOMR3NwdC-JzdZVpQbmEsKKW5eL0M1pHOVZfEm57r8jXJiH1EWtCduK/s200/Brillantes.jpg" width="200" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Comelec Chair Sixto Brillantes, Jr.</td></tr>
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<span style="color: #4e4e4e;">“The interest of society and the
maintenance of good government demand a full discussion of public affairs . . .
a public officer must not be too thin-skinned with reference to comment upon
his official acts,” so goes Justice Malcolm in the landmark case of US v.
Bustos, in his disquisition on freedom of speech. <o:p></o:p></span></div>
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<span style="color: #4e4e4e;">But Comelec Chairman Sixto
Brillantes, Jr., a former San Beda College of Law professor and practicing
lawyer, <span style="mso-spacerun: yes;"> </span>must have already forgotten this
mandatory case law reading in law school when he threatened to sue critics of
the just concluded midterm elections in the <st1:place w:st="on"><st1:country-region w:st="on">Philippines</st1:country-region></st1:place>.<span style="mso-spacerun: yes;"> </span>Reacting to allegations of massive glitches
in the implementation of the 2013 computerized elections and criticisms that it
was worse than the 2010 elections, Brillantes said “[t]hose people who keep on
blabbering but know nothing, they are the ones I’m going to charge.<span style="mso-spacerun: yes;"> </span>All of them.” <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<span style="color: #4e4e4e;">While it is completely understandable
that planning and handling the elections in 1,630 municipalities and cities
around the country is a daunting task and must be draining, physically and
mentally, Brillantes should not lose sight of the fact that he took the job of
election chief voluntarily and as a public office, it is open to public criticisms,
whether justified or not.<o:p></o:p></span></div>
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<span style="color: #4e4e4e;">Threatening to sue critics – aside
from being stupid, because criticism of official conduct, unless proven to be malicious,
is not libelous – has a chilling effect on free speech, for it deters others
from commenting on what they perceive to be inefficiencies in the government
and calling on public officials for any wrongdoing.<span style="mso-spacerun: yes;"> </span>In a democratic society like the <st1:country-region w:st="on"><st1:place w:st="on">Philippines</st1:place></st1:country-region>,
freedom to comment on the workings of the government and conduct of public
officials is one of the strongest checks against the excesses, abuses, and other
misconduct of officialdom.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-75284464402070015062012-10-25T10:23:00.002-07:002012-10-25T10:23:32.948-07:00Duterte's Chilling Proposition<div class="separator" style="clear: both; text-align: center;">
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The offer of a five-million-peso reward money by Davao City Vice Mayor Rodrigo Duterte to anyone who can literally bring to his office the head of notorious carnapping (motor vehicle theft) suspect Ryan Yu – made on national TV, no less – sends a chill to the spine and speaks badly of the country’s state of law enforcement.
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While this is nothing new for a man who has been dubbed by Time magazine as the “Punisher,” for his reputation for alleged extrajudicial killing of suspected criminals during his tenure as mayor of Davao City, Duterte’s offer sends the message that law enforcement in the Philippines is inept, hence the need for vigilantes to carry out the job that the police have failed to do.
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Every law abiding citizen should come out and condemn this reprehensible incitement to lawlessness by no less than a public official. Duterte was actually telling the public to kill and mutilate by decapitation a man who has yet to be pronounced guilty by a court of law. Although Yu is the suspected – take note, “suspected” – mastermind of several cases of carnapping, he is no less entitled to his day in court and could only be meted with criminal punishment after he is found guilty of the crimes attributed to him. Also, Duterte was not only prescribing a penalty that has been abolished in the Philippines, but is prescribing a punishment so savage and shocking to our senses that it should have no place in civilized society.
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Vigilantism, which is what Duterte was encouraging, degrades law enforcement and incites lawlessness. While the reward system to capture suspected criminals is meant to help law enforcement, this is not exactly how it is supposed to work. For safety reasons and observance of the rule of law, private citizens should only be required to report to the authorities the whereabouts of suspected criminals and not put the law into their own hands by carrying out the arrest themselves, let alone kill the suspect!
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Vice Mayor Duterte should be brought to task for his reckless and dangerous conduct. As a public official, he is duty-bound to observe his oath of fidelity to the Constitution and the rule of law. The Code of Conduct and Ethical Standards for Public Officials and Employees require him to refrain from doing any acts contrary to law and public order.
Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-80186027762988453642011-03-30T12:50:00.001-07:002011-03-30T13:05:05.471-07:00Lacson is not - and should not be - above the law<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjC0OOzBFNS__MbZca2e7HiWYsLKC1UcSujIQm3x4U2f_zfcHZeWfQ8XMLLfVnMTRFzfzwApEFncF4gsJEz2n4HkrrSjPiSchyHAAN_iEchVF0PzIhQccPJDZbLJpBk0rURFpx45jkvlPWw/s1600/lacson.jpg"><img style="float:left; margin:0 10px 10px 0;cursor:pointer; cursor:hand;width: 260px; height: 194px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjC0OOzBFNS__MbZca2e7HiWYsLKC1UcSujIQm3x4U2f_zfcHZeWfQ8XMLLfVnMTRFzfzwApEFncF4gsJEz2n4HkrrSjPiSchyHAAN_iEchVF0PzIhQccPJDZbLJpBk0rURFpx45jkvlPWw/s320/lacson.jpg" border="0" alt=""id="BLOGGER_PHOTO_ID_5589962932612832354" /></a><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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. <br /><br />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? <br /><br />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. <br /><br />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.<br /><br />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.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-6486426551787256932011-03-24T09:13:00.000-07:002011-03-24T09:21:05.425-07:00Libel and free speechIn 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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />Malice has been defined in the US case of <em>New York Times v. Sullivan</em> 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.<br /><br />In the landmark 1999 case of <em>Borjal v. Court of Appeals</em>, 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.<br /><br />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.<br /><br />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 <em>Borjal</em>, “[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.”<br /><br />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 <em>New York Times</em>, "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).<br /><br />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.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com1tag:blogger.com,1999:blog-4362936908231841211.post-63113121990338869372011-03-02T15:42:00.000-08:002011-03-02T17:36:50.455-08:00When hateful speech is protectedVoting 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.<br /><br />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.<br /><br />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. <br /><br />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. <br /><br />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.<br /><br />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:<br /><br />"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."<br /><br />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. <br /><br />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.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-66439398010073545192011-02-25T09:17:00.000-08:002011-02-25T09:20:32.543-08:00Marcos was no hero<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiukwSUSXctT3s8KOyFu2_izF2C_wKljup28PgReuHzz2Tzo5bbYk9GbFKMnT8Mgu8aXx5iLqDDdjK5721KOrLgHtS4jqfae3pV8Dr7jErb98adxA5yFRMVA7MfW-s01c4kwKFAMDZ7ZH1j/s1600/marcos.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 250px; FLOAT: left; HEIGHT: 185px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5577678067823400018" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiukwSUSXctT3s8KOyFu2_izF2C_wKljup28PgReuHzz2Tzo5bbYk9GbFKMnT8Mgu8aXx5iLqDDdjK5721KOrLgHtS4jqfae3pV8Dr7jErb98adxA5yFRMVA7MfW-s01c4kwKFAMDZ7ZH1j/s320/marcos.jpg" /></a><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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!<br /><br />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!<br /><br />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.<br /><br />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.<br /><br />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.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-60233193342671274142011-02-21T10:18:00.000-08:002011-02-21T12:48:09.317-08:00People Power Revolutions<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgya3cf8QV5DGKI6REkeGDJ6HrPFox6huHofzcD8ocKLW8gSeL4xavd9Tno_ENuD5PaMrIKmCZpNmmEVGDXo0Io6EGf9mksWAmYzCUU-JiAFl2hw7FtVInKYuYqA25f4VSV5Xtfew0aZ0Wa/s1600/EDSA_Revolution_pic1.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 320px; FLOAT: left; HEIGHT: 229px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5576244201881607954" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgya3cf8QV5DGKI6REkeGDJ6HrPFox6huHofzcD8ocKLW8gSeL4xavd9Tno_ENuD5PaMrIKmCZpNmmEVGDXo0Io6EGf9mksWAmYzCUU-JiAFl2hw7FtVInKYuYqA25f4VSV5Xtfew0aZ0Wa/s320/EDSA_Revolution_pic1.jpg" /></a><br /><div><div><div>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.</div><br /><div>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.</div><br /><div></div><div></div><div>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. </div><br /><div></div><div>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. </div><br /><div></div><div>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.</div><br /><div></div><div>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. </div><br /><div></div><div>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. </div></div></div>Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-6376639818541835162011-02-11T14:28:00.000-08:002011-02-13T13:45:29.797-08:00What's the Ombudsman doing?<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgW-v7SJVTN_YGpLiaP6F3ZnRmHN8TdyypRdHyXbYtLZWmKZ24tzd-Y3eeJkjTVif6Wo7uRM0LAPqe8RXPMhdhcyftZiLWArwtkvPPzWy_RaFYgTVodrY5498k6lfl0aXdukiDq2sx7r0Oy/s1600/ombudsman.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 200px; FLOAT: left; HEIGHT: 317px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5573293379883106546" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgW-v7SJVTN_YGpLiaP6F3ZnRmHN8TdyypRdHyXbYtLZWmKZ24tzd-Y3eeJkjTVif6Wo7uRM0LAPqe8RXPMhdhcyftZiLWArwtkvPPzWy_RaFYgTVodrY5498k6lfl0aXdukiDq2sx7r0Oy/s320/ombudsman.jpg" /></a><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />The true problem, however, is how far can the Ombudsman go? Or will she ever go forward at all?Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-66039742540417569992011-02-10T16:31:00.000-08:002011-02-10T16:36:11.270-08:00Death as a way out: Angelo Reyes's suicideSpeculations 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. <br /><br />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. <br /><br />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. <br /><br />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?<br /><br />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.<br /><br />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.<br /><br />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. <br /><br />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? <br /><br />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.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-52509185918541540862011-01-02T11:45:00.000-08:002011-01-02T11:47:10.437-08:00Revolutionary taxes and peace talksCommunist 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.<br /><br />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.<br /><br />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. <br /> <br />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. <br /><br />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?<br /><br />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.<br /><br />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.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-87480617826055547262010-11-18T11:53:00.000-08:002010-11-19T10:38:07.645-08:00Are violent video games protected speech?<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi6TFrMhj8B9yfFkwk2ZWD_Fhega1MFwihLbkd-L4pIhKlAXq1UOeH-UoRERnoCy3M0uIVvTCJI2UDYUKwx_YBkmXDUhXGezi1wk6SccR3ECXaxPSHX76LiY-z4V_x8txhBMGi8BDMeCeVc/s1600/videogames.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 259px; FLOAT: left; HEIGHT: 194px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5541330540206215410" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi6TFrMhj8B9yfFkwk2ZWD_Fhega1MFwihLbkd-L4pIhKlAXq1UOeH-UoRERnoCy3M0uIVvTCJI2UDYUKwx_YBkmXDUhXGezi1wk6SccR3ECXaxPSHX76LiY-z4V_x8txhBMGi8BDMeCeVc/s320/videogames.jpg" /></a> This is the question the parties in <em>Schwarzenneger v. Entertainment Merchants Association (EMA) </em>argued before the US Supreme Court (SCOTUS) on November 2nd. The case emanated from a law passed by the State of California which bans the sale of ultra-violent video games to minors, arguing that such forms of entertainment have detrimental effects on children.<br /><div></div><div> </div><div>The 2005 law, however, failed to take effect after lower courts in California blocked its implementation citing, chiefly, violation of children's First Amendment right. The First Amendment to the US Constitution prohibits laws infringing on free speech.</div><br /><div></div><div>During the November 2nd oral argument before the SCOTUS, while the justices appear to be sympathetic with the law's objectives, most of their questions seem to point to a direction where the court will not carve out an exception to the First Amendment - at least for depiction of violence. Justices Ruth Bader Ginsburg and staunch court conservative Antonin Scalia asked the proponents of the law on where regulation would stop if the court were to allow it. Ginsburg asked whether movies, which clearly portray violence, and comics would be next. Scalia, on the other hand, ever the originalist (the view of interpreting the constitution according to the framers' intent), argued that the founding fathers never intended to exclude portrayals of violence from the coverage of free speech. </div><br /><div></div><div></div><div>One court observer, however, notes that sometimes the justices vigorously question the position of the party in whose favor they would later on rule, if only to test arguments that could change their minds. So the oral argument is not really a good indicator of which direction the court will go on this issue. Legal analysts would focus more on the merits of the case.</div><br /><div></div><div>There is no question that video games constitute speech, but the question is do they fall within the ambit of protected speech? If not then the California law will be declared unconstitutional. The law being a content-based regulation (the content of the speech itself - portrayal of violence in the games - is being sought to be regulated), the SCOTUS will likely apply the strict scrutiny standard, which is a very difficult standard to pass. Under this standard, the two tests to apply if the law were to pass constitutional muster are: (1) is there a compelling or overriding governmental interest in passing the law? (2) is the law "narrowly tailored" in accomplishing that interest?</div><br /><div></div><div>Applying these two tests to the video games law, the State of California must present conclusive evidence that ultra-violent video games have adverse psychological effects on children. But that is only half the test. The proponent must also show that there are no least restrictive means of regulating speech, meaning the manner the law seeks to regulate the targeted speech must be the least restrictive, hence "narrowly tailored." To this, the entertainment industry is arguing that the current rating system of video games by the Entertainment Software Rating Board (ESRB), such as the "M" (mature) rating for violent games, is the least restrictive and should be sufficient. </div><br /><div></div><div>This is the biggest case yet involving the video games industry. It is probably one of the reasons why among thousands of cases that regularly land on the doorsteps of the SCOTUS, the high court decided to allow this petition. If the SCOTUS upholds the law, minors would still be able to buy violent video games through an adult, much like in the case of alcohol and tobacco. But First Amendment advocates fear such ruling would open the floodgates for regulation of other media. </div>Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-72123681032539728282010-07-08T11:45:00.000-07:002013-08-26T08:30:59.680-07:00Scrapping the Pork BarrelMany lawmakers are worried about the Aquino Administration’s plan to slash the Priority Development Assistance Fund or what is commonly and contemptuously known as “pork barrel.” This plan has reportedly divided even members of the president’s own party, such as Quezon City Rep. Feliciano Belmonte, prospective speaker of the house, who is said to have assured lawmakers that the pork will stay in contrast with Rep. Lorenzo Tañada III, also of Quezon City, who proposed to cut the funding into half. <br />
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Pork barrel funds or politics refers to the practice of allocating public funds to finance local projects, usually infrastructure projects, in a lawmaker’s district or, in the case of senators, in localities selected by them. Each congressman is allocated pork barrel funding of up to P70 million, while each senator up to P200 million. <br />
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The most common argument lawmakers present in support of the pork is that it is a way of equalizing the distribution of government services to the people. As their representatives, lawmakers know more what services are needed by their constituents and the pork barrel is a way of extending the arm of the government in areas not being serviced by it. <br />
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However, since lawmakers are given the discretion in identifying what projects to undertake and which localities to benefit, the pork barrel is seen as a source of corruption for lawmakers by receiving kickbacks from the projects and a form of patronage politics, in which the projects are undertaken to reciprocate the support given by a certain locality during the past election or as a means to generate votes for the lawmaker in future elections. <br />
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What is also objectionable is that the pork barrel is funded by the taxpayers in general and yet it only benefits certain localities selected by the lawmaker. It may be argued that since every district has a representative, ultimately all localities may benefit in one way or the other from these allocations. But nothing is farther from the truth. In reality, not all localities get the benefit and the most that get it are the supporters of the benefactor lawmaker. Also, not all lawmakers get equal allocation, not to mention speedy release, of these funds; it all depends on how close the lawmaker is with the powers that be. <br />
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The Aquino Administration’s approach of slashing the pork barrel is more moderate than eliminating it altogether. But if it were up to me, scrapping it is more preferable and just leave the determination and delivery of beneficial projects to our local executives in coordination with the national government. After all, this is an executive function which a legislator is not supposed to engage in the first place.<br />
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By scrapping the pork barrel, our lawmakers will be forced to concentrate more on their primary and traditional role of legislating. To be sure, the many contenders for congressional and senatorial post, not to mention the party-list, will be dramatically cut down since this will deter the many aspirants who have no legislative agenda at all, let alone the ability to craft laws and debate about them. The halls of congress is not the right place for them if their main incentive for running is the promise of fat pork allocation.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com1tag:blogger.com,1999:blog-4362936908231841211.post-76816877351981140482010-06-16T12:42:00.000-07:002010-06-16T15:03:23.714-07:00Revisiting Midnight Appointment CasesWhen the Supreme Court, under a new leadership, resumed session last Tuesday, it was confronted once again with the nagging issue on the power of the outgoing president to appoint retired Chief Justice Reynato S. Puno's replacement, with the filing by the Philippine Bar Association of a second motion for reconsideration of the decision in <em>De Castro v. JBC</em>. I can only surmise the uncomfortable situation Chief Justice Renato Corona must have found himself in when he presided over the Court to tackle the question on the legitimacy of his appointment.<br /><br />The widely criticized <em>De Castro</em> was of course the March 17 decision that paved the way for CJ Corona's appointment by lameduck President Gloria Macapagal-Arroyo (GMA). The case involves the applicability of the constitutional ban on the appointing power of an outgoing president, particularly with respect to vacancies in the judiciary, two months prior to and until the end of her term. This is known as the ban on midnight appointments.<br /><br />Penned by my former law professor, now Justice Lucas Bersamin, the <em>De Castro </em>ruling held that the ban does not apply to appointments in the judiciary because of a specific command in the Constitution for the president to fill any vacancy in the Supreme Court within 90 days from its occurence. The decision goes on to say that failure of the president to make such appointment would amount to a disobedience of the Constitution. Justice Bersamin raciocinated that had the framers of the Constitution intended to make the ban applicable to the judiciary, they could have expressly stated so under the article dealing with the judiciary; that by appearing on the article dealing with the presidency, the ban applies only to the executive department.<br /><br />But Justice Conchita Carpio-Morales was unimpressed by the majority's ruling and filed a strong dissent by characterizing Justice Bersamin's reasoning as specious, weak and without legal mooring. She attacked Justice Bersamin's reliance on the structural arrangement of the Constitution in justifying the decision and for failure of the decision to resort to basic rules on the interpretation of the Constitution. For example, the lady justice pointed out that it is basic in constitutional interpretation that where there is no ambiguity the Constitution should be interpreted according to its plain meaning. According to her the prohibition on the president to make any appointment within the prohibited period, except when public service would be prejudiced, is a plain and simple blanket prohibition. She also cited the rule that when the law does not distinguish no distinction should be made, and true enough the ban on midnight appointment does not distinguish as to what branch of government it applies.<br /><br />The dissent also takes exception to the observation that the failure to fill a vacancy in the Supreme Court within the 90-day period amounts to dereliction of duty by the president. It argues that legal impossibility exempts non-compliance with this requirement and the two-month ban precisely excuses such non-compliance and suspends the running of the 90-day period until the ban ends.<br /><br />Finally, Justice Carpio-Morales laments Justice Bersamin's failure to cite any particular deliberation of the drafters of the Constitution in claiming that the intent of the framers support the conclusion reached by the majority.<br /><br /><em>De Vera</em> is in sharp contrast with the much earlier decision in <em>Aytona v. Castillo</em>, wherein the Supreme Court ruled that after a newly-elected president has been proclaimed, the incumbent and outgoing president is nothing more than a caretaker whose duty is to see to the smooth transition of power from the old to the new president. Interestingly, <em>Aytona </em>involves the withdrawal by then President Disodado Macapagal, GMA's father, of the 350 midnight appointments made by his predecessor President Carlos P. Garcia in 1961. A day before Macapagal's assumption to office, Garcia issued appointments to both executive and judicial positions.<br /><br />The Supreme Court upheld the validity of President Macapagal's order canceling or recalling the appointments made by President Garcia without distinguishing between the types of positions involved. Of course, <em>Aytona </em>was decided under the 1935 Constitution which allows reelection of the president.<br /><br />A much later case<em>, In Re Valenzuela </em>(promulgated in 1998), decided under the present Constitution, likewise did not distinguish between executive and judicial positions when it comes to the application of the ban on midnight appointments. This case involves the appointment of judges. Having fallen within the two-month ban, and there being no justification for the urgency of the appointments, the Supreme Court struck down the appointments as invalid.<br /><br />Clearly then <em>De Castro </em>departed from the <em>Aytona </em>and <em>Valenzuela </em>decisions. It is worth noting that the Supreme Court, as the final authority to declare what the law is, can reverse itself and even overturn long established principles of law laid down in a particular case. <em>De Castro </em>is definitely such an instance. It is highly unlikely, however, that the Supreme Court will reconsider <em>De Castro, </em>given the fact that CJ Corona has already assumed office. I don't think the Supreme Court is about to strip one of its members of his just conferred <em>primus inter pares</em> status.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com6tag:blogger.com,1999:blog-4362936908231841211.post-43109605611572128842010-06-11T11:13:00.000-07:002010-06-11T11:14:58.026-07:00LONG LIVE PHILIPPINE INDEPENDENCE!<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgPgAXgF899ZpTWFlUYYspBscekeBNDhReOQyjbjP8_aPJs4cx_HG1bbZ0t7SggxUDcdY3kCqZPPJ5L5imi_J0uLiJEPTzk01NdWfI_y6Lnhu-5IIRHorgz51SVP2VsKWGxjCjR48v99fpT/s1600/112independence.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 320px; FLOAT: left; HEIGHT: 197px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5481581090209625170" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgPgAXgF899ZpTWFlUYYspBscekeBNDhReOQyjbjP8_aPJs4cx_HG1bbZ0t7SggxUDcdY3kCqZPPJ5L5imi_J0uLiJEPTzk01NdWfI_y6Lnhu-5IIRHorgz51SVP2VsKWGxjCjR48v99fpT/s320/112independence.jpg" /></a><br /><div></div>Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-14714942169632488412010-05-14T12:27:00.001-07:002010-05-14T13:32:21.291-07:00Corona's Appointment Ties Noynoy's Hands<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhD8VBwWxI4TzfDr8wFh7-T4lUz-LWGfVAnmgKy8pq3hUHtPgJJusXFL2UkAAlq1nAZ1ocmrLQVi0GMzl7mXyvAQqDxgXctC3pnpbhQ4haMR8fFB8PKYlyDrKC9XDKJhqrCuA2kQNcbtNXA/s1600/renato_corona.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 258px; FLOAT: left; HEIGHT: 277px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5471209907389834226" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhD8VBwWxI4TzfDr8wFh7-T4lUz-LWGfVAnmgKy8pq3hUHtPgJJusXFL2UkAAlq1nAZ1ocmrLQVi0GMzl7mXyvAQqDxgXctC3pnpbhQ4haMR8fFB8PKYlyDrKC9XDKJhqrCuA2kQNcbtNXA/s320/renato_corona.jpg" /></a><br /><div>In clear disregard of the incoming president's prerogative to appoint the next chief justice, outgoing president and incoming congresswoman Gloria Macapagal-Arroyo (GMA) displayed once again her stubbornness by appointing her former chief of staff and spokesperson, now Supreme Court Justice Renato Corona as the next chief justice.<br /><br />While <em>De Castro v. Judicial and Bar Council</em> has cleared the way for GMA in appointing the next chief justice, courtesy and prudence dictate that she should have let the incoming president have the privilege of appointing the replacement of Chief Justice Reynato Puno, who is set to retire on Monday. The absence of a chief justice will in on way hamper the operation of the high court, it being a collegial body where each member equally exercises judicial functions in collaboration with the others. Besides, an acting chief justice can always be designated in the interim as has happened in the past where the most senior member of the court assumes the role pending the appointment of a chief justice.<br /><br />GMA's haste in appointing the new chief justice, with only less than two months before her term expires, is once again lending credence to apprehensions of another sinister plot in the making. Just like the no-el scenarios - born out of Malacañang's questionable conduct and pronouncements - this appointment will once more stir our imaginations and make us conclude that GMA is making the final touches to her carapace that will protect her against future prosecutions, especially so that the presidential front-runner Noynoy Aquino has promised to launch an investigation into the allegations of wrongdoing during her administration. And who better to protect her than an old associate like Renato Corona, who has closely worked with her even while she was still a vice president.<br /><br />But GMA does not only appear to serve her interest in this appointment. She has also put the heir-apparent to the presidency on the spot. Knowing that Aquino has publicly announced before that he will not recognize a GMA-appointed chief justice, the appointment appears to be pitting Noynoy against the Supreme Court (which is packed with GMA appointees) early on in his presidency.<br /><br />After all is said and done, however, the appointment of Renato Corona has effectively tied the hands of Noynoy. The Supreme Court itself has already spoken that GMA can make the appointment. For Noynoy to disregard such appointment once he assumes power would not only be a legal dent on his young administration, but also antagonize the Supreme Court whose members will not take kindly the embarrassment that will befall one of their own.<br /><br />If GMA has not seen fit to exercise courtesy and prudence, that's no reason for Noynoy to do the same. Nothing will be gained except to nurse a bruised ego by not recognizing the appointment, however distasteful the manner it has been made. Six years is a long time to be waging losing battles in the Supreme Court. </div><div></div><div><em><span style="font-size:85%;">(Photo Courtesy of </span></em><a href="http://www.caloocancity.gov.ph/"><em><span style="font-size:85%;">www.caloocancity.gov.ph</span></em></a><em><span style="font-size:85%;">)</span></em></div>Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com3tag:blogger.com,1999:blog-4362936908231841211.post-66960179928495279532010-05-05T09:23:00.000-07:002010-05-05T11:25:54.451-07:00Legal and Political Ramifications of Postponing the ElectionsThe glitches on the voting machines' memory cards found during Monday's mock polls have generated calls for either postponement of the May 10 elections or reverting it to manual voting. Monday's exercise has further heightened the public's fear of a rigged or failed elections, and the Comelec-Smartmatic assurance has not helped in assuaging this fear.<br /><br />As of this writing, Smartmatic (the company awarded with automating the May 10 polls) is rushing the reconfiguration of the 76,340 defective compact flash (CF) cards - which contain the program for the voting machines to work - in time for the final testing on May 7. There is, however, a well-founded fear that this might not be done, or even if done, the result might still be suspect, considering that it took Smartmatic more or less two months to initially reconfigure these CF cards for the May 10 polls compared to the two or three days Smartmatic will do the second reconfiguring to correct the errors.<br /><br />No less than the president's top election lawyer, Romulo Macalintal, has called for postponing the elections and even went as far as withdrawing as the president's counsel if only to stress his seriousness. He argues that the Omnibus Election Code (OEC) empowers the Comelec to postpone the election if for some reason it becomes impossible to hold, and proposes that a 15-day postponement would be reasonable to give Comelec more time to prepare. <br /><br />Constitutional Commissioner Fr. Joaquin Bernas, however, doubts the legality of Comelec's power to postpone under the OEC. He believes the OEC merely empowers the Comelec to postpone in local, but not in national election.<br /><br />Although the Constitution sets the national election on the second Monday of May, it allows its postponement when a law to this effect is passed by Congress. Given, however, the lack of time to convene Congress, not to mention the preoccupation of many of its members on the campaign trail and the improbability of mustering enough favorable votes, it seems almost impossible now that such a law can still be passed. <br /><br />On the other hand, the Concerned Citizens Movement, which sought to stop the automated election but failed to do so in Roque v. Comelec, has filed a petition anew with the Supreme Court to hold the election under the manual system for fear of a failed election under the automated system. It is unlikely, however, that the Supreme Court will give the petition due course. For one, the case or controversy requirement that will move the high court to entertain the petition is missing. While the automated election system (AES) has experienced glitches during its testing, this alone does not meet the requirement of an actual case or controversy where conflicting legal rights susceptible of judicial resolution are present. Besides, the question on the legality of the automation law has already been passed upon by the court in Roque v. Comelec.<br /><br />Other sectors, uncluding some presidential candidates, remain firm in their position that the May 10 elections should push through as scheduled. They voice fear that the postponement of the elections will only serve the president's plan of overstaying in power. Malacañang, of course, is wise to distance itself from postponing the elections and the president's prompt acceptance of Macalintal's withdrawal seems to reinforce the administration's lack of interest in delaying the elections. And the Comelec is certainly unwilling to receive the ire of those against a No-el scenario by steadfastly claiming that the elections will push through and can fix the AES hiccups before Monday. After all, if the AES fails the fault cannot be solely attributed to it as it is merely implementing a law passed by Congress.<br /><br />Postponement of not, the country may be getting itself into a catch-22 situation. If the elections proceed as scheduled, the probability of failure is not at all unlikely since no one knows what other glitchy creatures will emerge from the murky waters of an untested AES come Monday. To be sure, no one (whether Comelec, Smartmatic or even IT practitioners) has foreseen that the CF cards of the voting machines will fail to read and accurately count votes for other positions, despite Smartmatic's experiences in implementing an AES in other countries, such as in Curacao and Venezuela. And it is without a doubt that there will be areas where the voting machines will fail to transmit results electronically. In a country like ours where the IT infrastructure is not developed in several areas this is a given. In other words manual voting in lieu of automated voting will certainly take place. It's just a question of how much will be the extent of it. <br /><br />If it comes to the point that manual voting becomes widespread, it is highly probable that the results will not be known after the term of the president and her constitutional successors ends. Consider this: the 80,000 clustered precincts around the whole country under the AES have resulted in about 600 to even 1,000 voters per precinct, compared to the about 200 voters per precinct in the past. If manual voting is resorted to in the event of computer problems, one could only imagine how long will the voting take place. Long after the legally mandated closing of voting has passed more voters would still be unable to vote, resulting in their disenfranchisement. To avoid this, declaration of failure of elections is the only viable option and in the meantime the clock is ticking, and power vacuum beckons.<br /><br />It is not yet late for our leaders - administration and opposition alike - to come together and sit down for a contingency measure in the event of failure of election. They should as soon as possible provide for a transition government, a caretaker if you will, that will see the country through this first nationally-automated electoral exercise. President Macapagal-Arroyo should initiate this move to cast any doubt on her motives. Who knows, this might just be the legacy - a postitive one, that is - that she will leave when she steps down from office on June 30th. Until now, however, the president has yet to make any pronouncement on the eventuality of a failed election and the public is being kept in the dark as to what contingency measures she has.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com0tag:blogger.com,1999:blog-4362936908231841211.post-37146940412603214102010-04-22T09:47:00.000-07:002010-04-22T10:15:27.422-07:00Agra's Disregard of Evidentiary StandardsDOJ Secretary Alberto Agra has found himself in the middle of a storm for dismissing the murder charges against two Ampatuan clan members in connection with the gruesome massacre of Mangudadatu supporters and journalists in Maguindanao. The besieged justice secretary reversed the preliminary investigation findings of his prosecutors, claiming there is not enough credible evidence to warrant the filing of murder charges against the two Ampatuans.<br /><br />The prosecutors, however, who recommended the filing of the murder charges based their conclusion on the testimony of an unbiased eyewitness, as against the alibi foisted by the Ampatuans. Historically considered as a weak defense, the Ampatuans' alibi should have been left for consideration during the trial proper and not during the preliminary investigation, especially that there is an eyewitness to support the filing of charges.<br /><br />It bears noting that during the preliminary investigation stage, what the investigating prosecutor needs to determine only is whether or not a crime has been committed, and if so whether or not the person being investigated is probably guilty thereof. "Probable cause" is the key phrase. As the name implies, the probability of guilt only is what needs to be determined, and not the certainty of guilt - a standard applied during the trial proper only.<br /><br />There is no doubt that the massacre did occur. There is also evidence that the Ampatuans may have been involved, as testified to by the eyewitness who claims he knew first-hand of the Ampatuans' participation in the planning of the massacre. These are facts and circumstances which would engender a well-founded belief that a crime has been committed and that the Ampatuans are probably guilty of the crime charged. Under our rules of criminal procedure, this is sufficient for the prosecutor to indict the Ampatuans. Take note, the purpose of the investigation is not to find guilt but a cause for filing the charges. Accusation is not synonymous with guilt. The Ampatuans will still get their day in court to refute these charges, and that will be the time for them to scrutinize the truthfulness of the eyewitness testimony, question his motive, test the veracity of this statements or refute them with contradictory evidence, such as alibi.<br /><br />It is therefore no wonder that even Agra's chief state prosecutor went public against his decision to drop the charges against the two Ampatuans. He clearly disregard the evidentiary requirement in preliminary investigation, by wrongly applying the much higher standard of proof beyond reasonable doubt that should only be made during the trial proper.Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com1tag:blogger.com,1999:blog-4362936908231841211.post-9283620487791076262010-04-13T11:53:00.000-07:002010-04-14T11:42:23.590-07:00Dimensions of a Failed Election and What GMA Needs to Do<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiEtES5CmM7NEqg_F0oi31U3n-5kcyLB877BWjwv4KDLL35SfPBY8E9ijS4QbSDq4SbQuPKgrwkGro9o3XwMXoved2ger0YzUDFGv_0tsMaEkAvgHmrkDsRRj76S98gmGUxHtGogpUt2sOB/s1600/ballot.jpg"><img style="MARGIN: 0px 10px 10px 0px; WIDTH: 278px; FLOAT: left; HEIGHT: 238px; CURSOR: hand" id="BLOGGER_PHOTO_ID_5460062271410020002" border="0" alt="" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiEtES5CmM7NEqg_F0oi31U3n-5kcyLB877BWjwv4KDLL35SfPBY8E9ijS4QbSDq4SbQuPKgrwkGro9o3XwMXoved2ger0YzUDFGv_0tsMaEkAvgHmrkDsRRj76S98gmGUxHtGogpUt2sOB/s320/ballot.jpg" /></a><br /><div>As the May 10 elections near the failure of elections anxiety grows even stronger. This fear acquires special significance because for the first time in Philippine history the elections will be automated - at least on a nationwide basis, since we already had a taste of computerized polls during the ARMM elections. In this coming elections, however, the stakes are high as all positions, from president down to the councilor of the smallest municipality, will be voted for.<br /><br />Failure of elections is not something new in our electoral lexicon. Losing candidates have at various times in the past utilized this as a legal tool to annul the proclamation of their rivals. More often than not, however, this legal argument has been met with disapprobation from the Supreme Court. The High Court has sustained this claim only in the clearest cases of electoral frauds.<br /><br />Section 6 of the Omnibus Election Code identifies the instances under which the Commission on Elections (Comelec) can declare a failure of elections, which the Supreme Court in <em>Soliva v. Comelec, </em>G.R. No. 141723 (April 20, 2001)<em> </em>has enumerated in the following manner:<br /><br /><blockquote>Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election. First, when the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in any polling place had been suspended before the hour fixed by law for the closing of the voting. And third, after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.</blockquote>In the context of automated polls, many fear failure of elections with computers breaking down or not transmitting election results. The glitches experienced in the recent absentee voting in Hong Kong have only served to heighten this fear. In <em>Roque v. Comelec</em>, however, the Supreme Court dismissed this fear in denying the petition to declare the automation illegal. The Supreme Court said the automation law provides manual voting as a contingency measure in the event computers break down. The problem with this, however, is that if manual voting is resorted to in case of computer glitches, elections in affected precincts may take unusually longer and pass the closing of voting, especially so that precincts are now clustered with registered voters numbering as many as 1,000 in a precinct. Many voters will end up not being able to cast their votes.<br /><br />Another scenario is the ever-looming threat of electoral fraud. Opponents of automation claim the resurgence of Garci-type cheating, wherein Comelec insiders will rig the PCOS machines by configuring them to make the favored candidates win. Inquirer columnist Amando Doronilla, however, refuses to accept this possibility in his February 16 article <em>Who Will be the Evil Genius?</em> According to him, there is none among the current presidential candidates (except perhaps Gilbert Teodoro via Pres. Gloria Macapagal-Arroyo) who is in a position of authority to direct the manipulation by Comelec. Teodoro and Comelec chair Jose Melo, he says, would not do it. Doronilla argues that President Macapagal-Arroyo has clearly no need for this to further her congressional bid, considering her almost guaranteed victory among her town mates.<br /><br />If elections fail - because of massive cheating or breakdown of voting machines or both - and the problem is not resolved before the term of office of the president and her constitutional successors ends on June 30, there would clearly be no one legally authorized to lead the country after this date. Since GMA would be the last person to hold the reins of power before the crisis begins, I would suppose she would stay at the helm in the mentime. Now, whether or not she will do so for good remains to be seen. </div><br /><div></div><div>Although most GMA critics would conclude that she will take this opportunity to remain in power for good, I humbly believe otherwise. If GMA were to perpetuate herself in power she would certainly meet stiff opposition both domestically and internationally, not least of which is the US. With all the military exercises the US has been conducting in the Philippines and the millions of dollars it pours into them, the Philippines is still much within the radar of US global interests. With all its worries on terrorism, the need to check an ever expanding China, and an adventurous North Korea, the last thing the US needs is a failed or weakened Philippine state. </div><br /><div></div><div>On the local front, a permanent GMA tenancy in Malacañang would elicit thunderous protests from the opposition and civil society groups. Coups are not farfetched. In short what will happen will be nothing short of a civil unrest; even worse, an uprising that could throw the whole country into a bloody revolution. This very gruesome scenario is something that will make Washington even more vigilant in preventing a Marcosian reprise by GMA. With all her faults, I don't think GMA is ready to take this dangerous path.</div><br /><div></div><div>GMA can, however, do one last thing that will mark her legacy. She could remain in power - a sort of hold-over president - in the event of a failed election. But in doing so, she must assure the public that it will only be temporary until the elections are re-held and completed. By law, the Comelec is mandated to re-hold elections in the event of failure at the first instance. This would entail huge expense and effort, but this is the only way that chaos can be averted. </div><div></div><br /><div>The alternative of her not staying and vacating office when no successor has been proclaimed and sworn would be more dangerous. Power grabbers from all stripes will try to outdo each other to succeed in power. There can be no illusion that this will happen peacefully. To be sure it will be a violent race to the top. On the other hand, if GMA were to hold-over, it will simply be a case of status quo. What will save the day is the assurance that she will give to the public that she will only be doing so to pave the way for a smooth transition of power. </div>Jun Bautistahttp://www.blogger.com/profile/07204251614074604003noreply@blogger.com1